Throop . Sherwood

The Opinion of the Court was delivered by Treat, J. This action was commenced in the McHenry Circuit Court by Sherwood, the appellee, against Thomas, Macomber, Throop and Brink, the appellants. The declaration was in assumpsit for work and labor done, and upon an account stated. Plea, non-assumpsit, verdict for the appellee, §256. The Court overruled an application for a new trial, and rendered judgment on the verdict. The refusal of the Circuit Court to grant a new trial is assigned for error. The testimony is somewhat voluminous but, in the opinion of this Court, establishes this state of facts: At a meeting of citizens of McHenry county, the appellants were appointed a committee to contract for and superintend the construction of abridge across Fox river, and they agreed to act as such. They employed Sherwood to erect the bridge for §790, of which amount §590 was to be paid by November, 1846, and the balance in one year thereafter, and Sherwood was to finish, the bridge by November, 1846, and warrant it to stand for three years. The agreement was reduced to writing, and signed by Sherwood and all of the appellants but Brink, His name was inserted in the contract as one of the contracting parties, but he was not present at its execution, and never signed it. He, however, acted with the other appellants in making the original agreement, and in superintending the work up to its completion. The bridge was commenced under the written contract, but, by the parol agreement of the parties, the plan was changed in several particulars. On the completion of the bridge in November, 1846, a settlement took place between the parties, and there was found to be then due Sherwood §256, and to become due in one year thereafter $200, for which amounts notes were signed by the appellants, and placed in the hands of Throop, to be delivered to Sherwood when he should execute a bond warranting the bridge to stand for three years. The bond was then drawn and the sureties agreed on. This bond, signed by Sherwood and the sureties, was tendered to Throop and the notes demanded; but he refused to accept the bond and deliver the notes, on the ground that the bond did not contain the proper condition. It is insisted that the appellee should have declared on the written contract, and that he cannot recover on the general counts. It is a well settled principle, that while a contract continues executory, the plaintiff must declare specially, but when it has been fully performed on his part, and nothing remains to be done under it but the payment of the compensation in money, by the defendant, which is nothing more than the law will imply against him, the plaintiff may declare specially on the original contract, or generally in indebitatus assumpsit, at his election. Bank of Columbia v. Patterson’s adm’rs, 7 Cranch, 199; Canal Company v. Knapp, 9 Peters, 541; 2 Greenl. Ev. 104. In this case, the appellee had fully completed the contract to the satisfaction of the appellants. The only thing remaining to be done, was the payment by them of the stipulated price, and that was to be paid in money. The appellee was therefore at liberty to declare specially on the contract, or generally, using the common counts. It is contended that Brink is not liable jointly with the other appellants. This would be the case if the action had been brought on the special contract, and perhaps the appellee could not make him liable on the common count, for work and labor done. But the appellee was clearly entitled to recover against all of the appellants, upon an account stated, without reference to the question, who were responsible under the original contract. In an action upon an account stated, the original form or evidence of the debt is unimportant, for the stating of the account changes the character of the cause of action, and is in the nature of a new undertaking. The action is founded, not upon the original contract, but upon the promise to pay the balance ascertained. 2 Greenl. Ev. § 127; Holmes v. D’Camp, 1 Johns. 34; Foster v. Allanson, 2 Term Rep. 479. It satisfactorily appears from the evidence that all of the appellants accepted the bridge, and undertook to pay the balance ascertained to be due, to the appellee. It may be said that the undertaking was a conditional one, but the condition was in good faith complied with by the appellee, and the appellants had no right to repudiate their promise. The judgment of the Circuit Court is affirmed with costs. Judgment affirmed