The first count in the plaintiff’s declaration was for money had and received, and the second on an account stated, each being for the same amount.
In July, 1910, one Barker, doing business as the Barker Auto and Repair Company, entered into a written contract with the defendants, whereby among other matters he agreed to buy and the defendants to sell twenty-five automobiles .between August 1, 1910, and July 31, 1911. The plaintiff corporation was organized in December, 1910, and in the month following Barker assigned to it all his right, title and interest in deposits amounting to $1,250 made with the defendants under this contract. The contract contained a provision that no right under it should be assigned without the written consent of the defendants. The terms of the contract as to the purchase of automobiles were not complied with in full by Barker or the plaintiff. The testimony of'Pierce, together with other facts stated, would support a finding that the defendants waived both these provisions by treating the plaintiff as entitled to the rights of Barker under the contract and by relinquishing “any claim or offset” arising from failure to take the stipulated number of cars. There was ample evidence that the account annexed, as to the first eighty-six items, was prepared by the defendants and was acknowledged by one of them to be a correct statement of the relations between the parties. Although made in the name of the Barker Auto and Repair Company, (the name under which Barker as an individual carried on business,) it might have been found that the plaintiff was treated as his successor and that the statement included the transactions of both as a continuous relation with the defendants. *308The first eighty-six items in the account might have been found to have been proved as an “account stated,” which is “an acknowledgment of the existing condition of liability between the parties. From it the law implies a promise to pay whatever balance is thus acknowledged to be due. It thereby becomes a new and independent cause of action.” Chace v. Trafford, 116 Mass. 529, 532. There were items of charge and credit of considerable amounts on both sides of this account. The relations between the parties growing out of the written contract, the deposits made with the defendants under it and the machines and merchandise furnished by them under it, formed an appropriate field for reaching an account stated. The evidence would support a finding that there was an agreement between the parties as to the balance due. So far as any consideration was needed for the waiver by the defendants of their rights under the contract and substituting the plaintiff for Barker, it may be found from the circumstance that the plaintiff took one or more automobiles (inferable from the fact that during the term of the contract “Barker and the plaintiff purchased and accepted delivery from the defendants of five automobiles”) and from the account stated between the parties. The remaining items might have been found to be true on other evidence. It follows that the request for a ruling that the plaintiff could not recover on the count for money had and received was refused rightly.
The second ruling requested, to the effect that the plaintiff could not recover on the count on the account stated, should have been granted. The evidence as to the account stated did not support the declaration. It was for an amount different from that pleaded and different from the verdict. Commonly, when a case is submitted erroneously on two counts of a declaration when there is right of recovery only on one count, and a general verdict is returned, there must be a new trial. F. W. Stock & Sons v. Snell, 213 Mass. 449. The reason is that in such case the jury may have found for the plaintiff on the count which in law ought not to have been submitted to them, and hence that a wrong may have been done. But in the case at bar the plaintiff had a right to go to the jury on the first count of its declaration. A finding for the plaintiff on the second count of its declaration could only have been made by determining in favor of *309the plaintiff every issue necessary to enable it to prevail on the first count. It follows that no wrong can have been done and it is not necessary to sustain this exception.
One issue raised by the defendants’ answer in recoupment was whether the written contract between Barker and the defendants had been broken by the former. One of the defendants testified that they always were ready and able to deliver the cars called for by the contract. It was incumbent upon the defendants to prove this fact. Randall v. Peerless Motor Car Co. 212 Mass. 352, 371, 382. He further testified without objection that during the period in question the defendants sold from fifty to seventy-five automobiles at retail and that he was unable to tell how many he had contracted to sell to other sub-agents. The plaintiff then was permitted, against the defendants’ exceptions, to introduce in evidence four contracts with other sub-agents for the sales of cars during the period of time within which deliveries were to be made under the contract between Barker and the defendants, solely for the purpose of showing the number of cars the defendants were under obligation to furnish to others, as having some tendency to indicate whether they were ready and able to fulfil their agreement with the plaintiff. It cannot be said that this was incompetent under the circumstances. The extent of the defendants’ obligations to furnish to others special machines, such as automobiles are, not generally sold in unlimited quantities in the market, had some bearing upon this issue. It was not evidence of the breach of another contract for the purpose of inferring a likelihood that there would be a breach of the one in controversy, as in Hanson & Parker, Limited, v. Wittenberg, 205 Mass. 319. Moreover, it was a subject about which the witness had been examined at considerable length without objection and it is difficult to see how the defendants were harmed even if the evidence were not competent.
Exceptions overruled.