The plaintiff declared generally for use and occupation, and the judge admitted evidence of an agreement, which the defendant contends was of such a character as to be special, and to require a special count in the declaration, to entitle the plaintiff to recover. It is not necessary to say whether the agreement was special or not; for it had been fully executed, and the plaintiff did not sue for the violation of the terms of it, but for the sum stipulated by it to be paid. It is said by the supreme court of the United States, in the case, of The Bank of Columbia v. Patterson’s Executors, 7 Cranch, 303, that it is incontrovertiblv settled that indebitatus assumpsit will lie to recover the stipulated price due on a special contract, not under seal, which has been completely executed. The same doctrine is found in many decisions of this court particularly in the case, very familiar to the profession, of Jew*111ell v. Schroeppel, 4 Cowen, 566. The defendant’s objection is answered in a manner equally satisfactory, by applying to it the provision of the statute relative to the action for use and occupation. If, on the trial of such an action, any agreement shall appear in evidence not being by deed, whereon certain rent was reserved, the plaintiff shall not be nonsuited, but may use the same as evidence of the quantum of damages to be recovered. 1 R. L. 444.
It was left to the jury to say whether the defendant was a part owner, or the mere agent of the boat, and they must have found, as the evidence warranted them to do, that he was a principal.
It was objected at the trial that the other owners were not joined in the action. If it clearly appeared there were other owners, and it is perhaps fair to infer there were other owners, that fact did not constitute a ground of objection at the trial.
It was an objection of which the defendant should have availed himself, by a plea in abatement.
The defendant offered to prove what was the fair and reasonable value of the wharf, but the judge refused to hear the evidence. If an agreement was established whereby the defendant became obliged to pay forty dollars a month for the use of the wharf, the court would have been uselessly employed in listening to the testimony offered, for the stipulated price must, according to the statute referred to, regulate the amount of the recovery. There was abundant evidence that-the rent was specified; the parties had settled what the defendant wished to leave to the jury, viz. the value of the landing place. The position taken by the defendant, that he had not the full benefit of what was contracted for, and therefore had a right to reduce the amount stipulated to be given, the facts do not authorise him to assume. The case shows that the plaintiff fulfilled his part of the agreement, by giving to the defendant the possession of the premises he contracted for.
Another ground of objection urged is, that the defendant was denied the right to prove that the'boat belonging to an incorporated company. As a necessary part of the proof of that fact, the court required the act of incorporation to be shown, T his was proper. If for any purpose it was necessary to show *112the existence of the company as a corporation, the act that ma(je them such, as it was not admitted by the pleadings, should have been produced.
The demand claimed by the plaintiff Was liquidated; the sum was specified, and the period of occupation was not a matter of doubt. “ All contracts to pay,” says Lord Thurlow, 2 Bro. Ch. C. 3, “ undoubtedly give a right to interest from the time when the principal ought to be paid.” We think that the plaintiff is entitled to interest, and consequently should have judgment on the verdict for $330,47,