Morse v. Potter , 70 Mass. 292 ( 1855 )

Metcalf, J.

Though general indebitatus assumpsit will not lie upon a special agreement, before the terms of the agreement are performed, yet it has long been the settled law that it will lie after they are so performed as to leave a mere debt or duty on the defendant. Bul. N. P. 139. Felton v. Dickinson, 10 Mass. 287. This is an answer to the first exception ; for the new practice act provides that “ a count on an account annexed may be used, when one or more items are claimed, either of which would be correctly described by any one of the common counts.” St. 1852, c. 312, § 2, cl. 7.^*

A time book, kept in a tabular form, and in which charges for labor are intelligibly indicated, has been held admissible in evidence, with the party’s suppletory oath. Mathes v. Robinson, 8 Met. 269. But the book that was offered in evidence in the present case was not a book of that kind. It was a book of credits, and not of charges, and was offered for the purpose of proving, by the defendant’s omission to give credit for certain days’ work, that the plaintiff did not work on those days. It was clearly inadmissible.

It was a matter of discretion with the judge who tried the cause, whether the witness, upon being recalled, should be allowed to testify to facts which ought, in strictness o^ practice, to have been disclosed on his examination in chief. The admission of the testimony is not a matter of exception. Cushing v. Billings, 2 Cush. 158. Commonwealth v. Moulton, ante, 40.

Exceptions overruled.

* A similar decision was made in Berkshire, September term 1856, in the case of Edmund Nary vs. John E. Potter, upon facts precisely like those in the case in the text.

I. Sumner, for the defendant.

B. Palmer, for the plaintiff.