
    Amasa G. Smith et al. versus The Proprietors of the First Congregational Meetinghouse in Lowell.
    Counts on a special contract under seal, and a quantum meruit for labor done and materials found, may be joined in an action of debt.
    An action of debt or assumpsit may be maintained upon an implied promise, for labor done and materials found under a special contract which has not been per formed on the part of the plaintiff.
    A corporation may be bound by an implied promise.
    This was an action of debt to recover a balance alleged to be due to the plaintiffs for building a meetinghouse for the defendants, who were a corporation, and for extra-work and materials about the same. On the 30th of May, 1827, a contract under seal was made by the parties, by which the plaintiffs, among other things, “ covenant, promise and agree, that they will, on or before the 1st of December next after, in a good and workmanlike manner, substantially erect and build, and, except the cellar and basement story, completely finish a meetinghouse for said proprietors, according to a plan exhibited,” &c. “ The roof shall be made according to the plan before refer-1 ed to, well strengthened, and covered with slate, in a thorough and proper manner,” &c. “ And it is agreed that the materiais of every kind shall be good and well seasoned, and that the whole shall be completed in a workmanlike manner.” And the defendants agreed to pay 8000 dollars, in instalments, for building the meetinghouse. The house had been built’by the plaintiffs, and been occupied by the defendants as a place of public worship, but without prejudice to their rights.
    The declaration contained nine counts ; — 1. The first sets forth the contract, avers performance on the part of the plaintiffs and alleges that the defendants have not paid the sum of 8000 dollars, nor any part thereof, excepting the sum of 6004 dollars, per quad actio accrevit. 2. The second is the same as the first, except that it sets forth that the contract was made by a committee on behalf of the defendants. 3. The third is similar to a count in indebitatus assumpsit for work, labor, care, diligence, &c. and materials found. 4. The fourth is quantum meruit for labor and materials to the value of 3000 dollars. 5. The fifth is similar to a count in indebitatus assumpsit for money paid, laid out and expended, to the same amount. 6. The sixth is for interest. 7. The seventh is upon an account stated. 8. The eighth counts upon the contract, as in the first, except that it avers the whole sum of 8000 dollars to be due. 9. The ninth is like the eighth, except that it alleges that the defendants did not pay the two last instalments stipulated for in the contract, viz. 1000 dollars when the outside of the meetinghouse was finished, and 1000 dollars when the building was completed, per quad actio accrevit to recover 2000 dollars, parcel of the sum of 8000 dollars. The defendants pleaded generally to these counts nil debet; on which issue was joined.
    The defendants objected to the joinder of these counts, on the ground that, in this Commonwealth, debt on simple contract does, not lie for work and labor, and a quantum meruit thereon.
    
      Wilde J., before whom the action was tried, reserved this question.
    The defendants introduced evidence, that the roof of the house was constructed in an unskilful and unworkmanlike manner, and that some of the materials were not of the quality agreed upon in the contract.
    
      March 21st.
    
    The defendants objected to the introduction of any testimony on the part of the plaintiffs under the counts for labor done, and materials found, contending that under the counts founded on the contr "ct such evidence ought not to be admitted But the judge ruled, that the plaintiffs might show that they were reasonably entitled to recover for labor and materials, independently of the "contract, and that the defendants might introduce evidence to rebut the plaintiffs’ evidence and show that they had derived no benefit from the plaintiffs’ labor and materials ; and the testimony was introduced accordingly. The testimony of the defendants tended to show, that the roof was so improperly constructed and of so bad materials, that it must be taken down, and so was of no value to them. Upon this point the judge charged the jury, that if thé roof ought to be taken down, and that over and above the value of the old materials, it would cost the defendants as much to take it down and rebuild it, as remained due upon the contract, provided it had been fulfilled on the part of the plaintiffs, they should find for the defendants ; but if the roof need not be taken down, but might be. strengthened and supported, they might deduct from the sum so remaining unpaid, the amount it would cost to make the roof safe and substantial, and find the balance for the plaintiffs ; but if they thought there was reasonable ground to doubt whether the roof could be sufficiently strengthened, they ought to decide against the plaintiffs ; whose duty it was to satisfy them on this point.
    The jury found a verdict for the plaintiffs, for 743 dollars , the amount due on the contract, had it been complied with, being 1996 dollars.
    If the counts were improperly joined, or if the evidence to prove the quantum meruit was improperly admitted, after it appeared that the special contract had not been performed, the verdict was to be set aside and a new trial granted.
    S Hubbard, for the defendants,
    said that though there were dicta that an action of debt would lie in England on simple contract for work done and materials found, there was no decision to that effect in this Commonwealth, nor any such usage ; and in 5 Dane’s Abr. 101, it is said that this action is gone into disuse in England, because the defendant has a right to wage his law, and where wager of law could not be, they decided that debt would not lie. Here a corporation cannot swear, and so they are deprived of one of the benefits to which the defendant is entitled in an action of this nature. Debt on simple contract does not lie against an administrator, because he cannot wage his aw. Barry v. Robinson, 4 Bos. & Pul. 293. An infant cannot wage his law, and if he sues, the defendant cannot, and so debt on simple contract does not lie in either case. In Lane v. Smith, 2 Pick. 283, the Court say it is not settled that debt will lie on a bail bond. This being a suit against a corporation, which can be bound only by vote, is a ground of objection to a claim on a mere implied promise. Debt must be brought for a sum certain.
    As to the next point, evidence ought not to have been admitted on the indebitatus counts, the special contract not being waived, rescinded or performed. Ellis v. Hamlin, 3 Taunt. 52; Felton v. Dickenson, 10 Mass. R. 289; Seymour v. Bennet, 14 Mass. R. 266. While the special agreement remains in force, the party cannot have recourse to an implied contract. The counts on the contract cannot be supported, because the work was not performed in compliance with the contract, and it would be dangerous to depart from that; for if a man were to make a bad contract, he would abandon it, and claim a quantum meruit. M'Cormick v. Connoly, 2 Bay, 401.
    Curtis, for the plaintiffs,
    to show that the counts may be joined, cited 1 Chit. PI. 106, 107; Union Cotton Manufactory v. Lobdell, 13 Johns. R. 462; Coryton v. Lithebye, 2 Wms’s Saund. 117, note. As to the objection on the ground of a right of wager of law, this is out of use. [See King v. -Williams, 2 Barn. St Cressw. 538.] An administrator is obliged to answer in debt on a lease, so that this objection to the form of the action does not hold.
    As to the other point, reason and the weight of authority are in favor of the action, the defendants having been benefited by the materials found and labor performed by the plaintiffs. Broom v. Davis, 7 East, (Am. ed.) 480, note Farnsworth v. Garrard, 1 Campb. 38; Templer v. M‘Lach lan, 5 Bos. & Pul. (Day’s ed.) 136, note; Keyes v. Stone, 5 Mass. R. 391; 2 Stark. Ev. 97, 98; Taft v. Montague, 14 Mass. R. 282.
    
      April 6th.
    
    
      
       Debt does not lie on a bail bond in this State. Crane v. Keating, 13 Pick. 339.
    
   Parker C. J.

delivered the opinion of the Court. It appears by the English authorities cited, that an action of debt ts a common law remedy on a simple contract, as well as on a specialty, and that it lies even on a quantum meruit and quan turn valebant. It is much disused on account of the right which it gives to the defendant to. wage his law. But in this country, where there is no wager of law, there is no reason why this action should be disused.

In regard to the question, whether the plaintiffs can main tain their action of indebitatus assumpsit, they having made a special contract which was not performed, we think the preponderance of authorities is in favor of such action. Having had occasion recently to look into this question in another case, we omit any discussion of it in this. [See Hayward v. Leonard, 7 Pick, 181.]

That the defendants are a corporation, makes no difference, as they may be sued on an implied promise as well as individuals.

Judgment according to verdict. 
      
       See Norris v. School District, 3 Fairfield, 203; Hollinsead v. Mactier, 13 Wendell, 276; Wright v. Wright, 1 Littell, 181; M'Cormick v Connoly, 2 Bay, 401; Wadleigh v. Sutton, 6 N. Hamp. R. 15; Ligget v. Smith, 3 Watts, 33; Jewett v. Weston, 2 Fairfield, 346; Newman v. M' Gregor, 5 Hammond, 351; Hayden v. Madison, 7 Greenleaf, 76; Dubois v. Del. and Hudson Canal Co., 4 Wendell; 285; Morford v. Ambrose, 3 J. J. Marshall, (Ken.) 600; Phelps v Sheldon, 13 Pick. 50; Sebastian v. Thompkins, 6 Littell, 108; Merrill v. Ithaca and Oswego Railroad Co., 6 Wendell,.589; M'Intire v. Morris, 14 Wendell, 90.
     
      
       See Baptist Church v. Mulford, 3 Halstod, 182; North Whitehall v South Whitehall, 3 Serg. & Rawle, 117; Bank of Columbia v. Patterson, 7 Cranch, 297; Waring v. Catawba Co., 2 Bay, 10; Chesapeake &c. Canal Co. v. Knapp, 9 Peters, 541; Beverly v. Lincoln Gas Light and Coke Company, 6 Adolph & Ellis, 829, and 33 Eng. Com Law Rep. 222.
     