Opinion
11-01-1826
Moore v. Mauro. [*]
Wickham, for the appellant. No Counsel, for the appellee. The points made at the bar are fully stated in the opinion of the Court.
Assumpsit was brought in the Superior Court of Law for the county of Harrison, by Jonathan Mauro against Richard W. Moore. The declaration contained several counts. The first was indebitatus assumpsit " for divers goods, wares and merchandize," sold and delivered by the plaintiff to the defendant. The second was on a quantum meruit. The third, on a quantum valebant. Another count was on an insimul computassent.
The plaintiff filed two accounts with his declaration, stating the various items on which the claim arose.
The defendant pleaded non assumpsit, and a special plea stating, that the action was founded on an account for goods, wares and merchandize sold and delivered, and that the said supposed causes of action did not accrue within one year next before the commencement of the action; and concludes with a verification.
The plaintiff joined issue on the first plea; and to the special plea, he replied that at the time of the said sale of the goods, wares and merchandize aforesaid, he the plaintiff and the defendant were merchants, and the goods, & c. were sold and delivered by the plaintiff as such merchant, to the defendant as such merchant; and this he is ready to verify.
There is no rejoinder to this replication; but the record states that " issue is thereon joined."
The jury rendered a verdict for the plaintiff, and judgment was given accordingly.
At the trial, the defendant filed a bill of exceptions, stating, that the plaintiff introduced two accounts, (which are the accounts filed with the declaration:) that he also introduced a witness to prove that the defendant had bought of him (the plaintiff,) on credit, sundry articles of groceries, and other different articles of merchandize, besides the coffee mentioned in the said accounts; which evidence the plaintiff offered under that part of one of the accounts, which charges the defendant with merchandize per bill, due 10th July, 1819, $ 480 60. The defendant objected to this evidence, but the objection was over-ruled; and the plaintiff was permitted to prove by the witness, under the charge aforesaid, that the plaintiff sold and delivered to the defendant, on the day in the account mentioned, to the amount of the said sum of $ 480 60, and delivered therewith a bill of the particular merchandize, with the prices, to the defendant, other than the three bags of coffee charged in the same account as of the 22d of May, 1819. To this opinion, the defendant excepted.
The defendant appealed.
Judgment affirmed.
Wickham, for the appellant.
No Counsel, for the appellee.
The points made at the bar are fully stated in the opinion of the Court.
The PRESIDENT delivered the opinion of the Court. [*]
OPINION
This is an action of assumpsit for goods, wares and merchandize, sold and delivered. There are several counts in the declaration, and two accounts filed with it, in pursuance of the 86th section of the Act for limitation of actions, & c. 1 Rev. Code, 510. The defendant pleaded two pleas; non assumpsit, on which issue was joined; and also that the cause of action, for goods sold and delivered, did not accrue within one year next, & c.; to which the plaintiff replied, that at the time of the sale and delivery of the goods, & c. in the declaration mentioned, the plaintiff and defendant were merchants, and that the said goods, & c. were sold, & c. by the plaintiff as such merchant, and bought, & c. by the defendant as such merchant; on which, though there is no rejoinder in the record, it is stated that issue was joined, and a general verdict. At the trial, a bill of exceptions was filed, setting forth that the plaintiff offered two accounts, those filed with the declaration; and introduced a witness to prove, that the defendant bought of him sundry goods, included in the item dated 1819, April 10th, merchandise per bill, three months due, 10th of July, 1819, $ 480 60; and that a bill of particulars was delivered to the defendant with the articles; which proof was admitted by the Court to go to the jury.
Several objections were taken by the counsel for the defendant. The first was to the misjoining of the issue upon the plea of the act of limitations; there being no rejoinder to the replication. But that objection was admitted to be obviated by the act of Jeofails, it being stated in the record that issue was joined on it.
The next objection was to the replication itself, on the supposed ground that the saving in the 4th section of the act of limitations, (1 Rev. Code, 488,) does not apply to the 7th section of the same act, which enacts, that actions founded on any account for goods, and on any article charged in a store account, shall be commenced, & c. within one year next, & c. and not after; but that it applies to the limitation of five years in the 4th section only.
It would be strange indeed, if this construction was to prevail; if an action of indebitatus assumpsit between merchant and merchant, is not to be barred by the saving in the act after five years, but is to be barred before, that is, after one year. This objection was not well considered, or it would not have been made. In Tomlin, & c. v. Kelly, 1 Wash. (VA) 190, it was decided by this Court, that the act of 1799 applied only to the store accounts of retail dealers.
A further objection to the replication was, that it applies as well to the insimul computassent charged in the declaration, as to the counts for goods, & c. sold and delivered; and the case of Webber v. TivillSaund. 121, was relied on. But it has no application. In that case, the plea and replication were general, and applied to the insimul computassent as well as to the indebitatus assumpsit for goods, wares, & c. charged in the declaration. In this case, the plea expressly applies to the counts for goods, wares and merchandize only, and not to the insimul computassent. As to that count, the issue was joined on the plea of non assumpsit. But, if otherwise, in the case of Webber v. Tivill, there was a demurrer to the replication; in the case before the Court, issue was joined, on which there was a general verdict; after which no objection can be taken, either of form or substance, which might have been taken advantage of by a demurrer, and which shall not have been so taken advantage of. 1 Rev. Code, 512, sec. 103.
The last objection was to the admission of the proof set out in the bill of exceptions. The 86th section of the act aforesaid enacts, that in every action of indebitatus assumpsit, the plaintiff shall file with his declaration, an account stating distinctly the several items of his claim against the defendant; and that on failure thereof, he shall not be entitled to prove before the jury any item which is not so plainly and particularly described in the declaration, as to give the defendant full notice of the character thereof. The object of this section was to give the defendant full notice of any claim which might be insisted on before the jury, under the general counts in the declaration. The words of the section are, " full notice of the character thereof; " that is, whether the claim was for goods, wares and merchandize, for money laid out, & c. for money received to the use of the plaintiff, & c. & c. The item in the account, which is objected to, certainly gave this notice; and though upon the evidence to the jury, it was made up of many articles, the character of the claim is sufficiently designated; and the proof that the articles included in it were sold and delivered to the defendant by the plaintiff, was properly admitted by the Court to the jury.
The judgment is therefore to be affirmed.
BILL OF PARTICULARS
I. Office of the Bill.
II. When Demanded.
III. Its Effect.
IV. When Ordered.
A. In Discretion of Court.
1. When, and When Not, Necessary.
2. In Suit for Rent.
3. To Put Adverse Party on Notice.
4. Shall Be Filed in Indebitatus Assumpsit.
5. In Actions Other than Assumpsit.
6. Where No Specific Payment Relied on.
7. In Actions for Personal Injuries.
V. Requisites.
A. Generally.
B. When Sufficient.
1. Account of Statement Rendered.
2. If Notice of Some Items Not Given.
3. Where Account Not Dated.
4. Account of " Per Account Rendered," with Proof.
5. Filing Note.
C. When Not Sufficient.
1. When Items Not Plainly Mentioned.
2. On Demand for Store Account, Note Filed.
3. Not Properly Designating Creditor.
VI. Amendments.
A. When Allowed.
VII. Objections to.
A. General Rule.
1. Demurrer Ineffectual.
B. Exception.
C. Must Be Raised in Trial Court.
Cross-Reference to Monographic Notes.
Assumpsit, appended to Kennaird v. Jones, 9 Gratt. 183.
I. OFFICE OF THE BILL.
The office of a bill of particulars is not to set forth matters of evidence, but to inform the opposite party of the cause of action to be relied on at the trial, and which is not plainly set out in the pleadings. Richmond & D. R. Co. v. Payne, 86 Va. 481, 10 S.E. 749.
And in Columbia Accident Ass'n v. Rockey, 93 Va. 678, 25 S.E. 1009, it is said that, the object of a bill of particulars is to give the opposing party more definite information of the character of the claim or defense than is generally disclosed by the declaration, notice or plea, and to prevent surprise. See Campbell Co. v. Angus Co., 91 Va. 438, 22 S.E. 167; Am. Hide & Leather Co. v. Chalkley (Va.), 44 S.E. 705.
But a statement of the particulars cannot be required when the declaration sets out the grounds of action and particulars of claim, with sufficient definiteness to give the defendant notice thereof. It can be demanded only where the declaration is, allowably under the law, so general as not to apprise the defendant of the real cause of action. Clarke v. Ohio River R. Co., 39 W.Va. 732, 20 S.E. 696.
II. WHEN DEMANDED.
The object of a bill of particulars being to advise the defendant of the precise nature and extent of the demand against him, the usual and better practice is, to demand such bill before pleading to the merits. Am. Hide & Leather Co. v. Chalkley (Va.), 44 S.E. 705 at 706.
III. ITS EFFECT.
If a declaration in assumpsit be filed against two defendants jointly containing the common courts, and a bill of particulars be filed purporting to be an account against both defendants jointly, but on the trial of the case on the plea of non assumpsit, the evidence shows only a part of the items in the bill of particulars are charged against the two defendants jointly, and that the other items are charged against one of the defendants individually, the jury can only find a verdict on the items in the account, which are charges against the two defendants jointly, and can render no verdict against one of the defendants severally on the items of the account which are charges against him severally. Enos v. Stansbury, 18 W.Va. 477.
IV. WHEN ORDERED.
A. IN DISCRETION OF COURT. -- It is, ordinarily, within the discretion of the court to order a bill of particulars, yet, the power is much less frequently exercised in actions of tort than in actions ex contractu, as the general rule in tort is, that if a pleading is not sufficiently specific the remedy is by demurrer. Richmond & D. R. Co. v. Payne, 86 Va. 481, 10 S.E. 749.
1. When, and When Not, Necessary. -- The common law principle that in an action of assumpsit, under the general issue, a general payment before suit brought may be proved without a bill of particulars, prevails in this state; but, if payment after suit brought is relied on, it must be pleaded; if a general payment, it may be proved without a bill of particulars, and, if specific, or partial, payments are relied on, they must be specified in a bill of particulars. Shanklin v. Crisamore, 4 W.Va. 134.
2. In Suit for Rent. -- In a suit for rent due, the defendant may, at the trial, prove and have allowed against any such debt any payment or set-off which is so described in his plea, or in an account filed therewith as to give the plaintiff notice of its nature, but not otherwise. Arnold v. Cole, 42 W.Va. 663, 26 S.E. 312, 313.
3. To Put Adverse Party on Notice. -- Where the pleading is allowably, under the law of pleading, general, so as not to fairly apprise the adverse party of what he has to meet, a bill of particulars may be demanded to amplify the pleadings, so as to more minutely specify the claim or defense and prevent surprise on the trial, but no call for a bill of particulars of evidence can be made. W.Va. Trans. Co. v. Standard Oil Co., 50 W.Va. 611, 40 S.E. 591.
4. Shall Be Filed in Indebitatus Assumpsit. -- In every action of indebitatus assumpsit the plaintiff shall file with his declaration an account, stating distinctly the several items of his claim against the defendant, and on failure thereof he shall not prove any item not so plainly and particularly described in his declaration as to give defendant full notice of its character. Fitch v. Leitch, 11 Leigh 471.
5. In Actions Other than Assumpsit. -- In actions other than assumpsit the plaintiff should be required to give the defendant full notice of the subject or character of his claim, and, if the declaration fails to do this, the plaintiff should, if called upon, file such statement of particulars as will put defendant upon notice. City of Richmond v. Leaker, 99 Va. 1, 37 S.E. 348.
6. Where No Specific Payment Relied on. -- Where the defendant relies upon a specific payment or set-off by way of discount against a debt, an account stating distinctly the nature of such payment or set-off and the several items thereof, must be filed with the plea, though the defendant may rely upon the parol admissions of the plaintiff to prove such payment. But this is not necessary where no specific payment is relied on. Rice v. Annatt, 8 Gratt. 557.
7. In Actions for Personal Injuries. -- In actions to recover damages for personal injury to plaintiff, resulting from failure on the part of defendant to furnish proper tools to do the work assigned, where the declaration avers it was the duty of defendant to furnish " suitable and reasonable tools," etc., " then well known to defendant and possessed and kept by it," with which to do the work, it is not necessary to furnish a bill of particulars thereof. Richmond Locomotive Works v. Ford, 94 Va. 627, 27 S.E. 509.
V. REQUISITES.
A. GENERALLY. -- A bill of particulars should contain the grounds of action not evidence. Clarke v. Ohio River R. Co., 39 W.Va. 732, 20 S.E. 696.
And, in an action of assumpsit, if the plaintiff serves on the defendant a copy of the account sued on, it must be intelligible, and such as to inform him of the precise nature of the claim, and its extent. Burwell v. Burgess, 32 Gratt. 472. See Johnson v. Fry, 88 Va. 695, 12 S.E. 973; Fitch v. Leitch, 11 Leigh 471 at 475; Moore v. Mauro, 4 488.
B. WHEN SUFFICIENT.
1. Account of Statement Rendered. -- Where plaintiff in assumpsit filed with his declaration an account in these words, " 1883, Jan'y 1. To balance due per account rendered, $ 1405.07," it was held a sufficient specification of plaintiff's claim. Fitch v. Leitch, 11 Leigh 471.
2. If Notice of Some Items Not Given. -- An account filed in an action of indebitatus assumpsit which gives notice of the character of a claim is sufficient, although it may be made up of various, items of which no notice is given. Moore v. Mauro 4 488. And see Fitch v. Leitch, 11 Leigh 471 at 474.
3. When Account Not Dated. -- When declaration in assumpsit states the date of the account filed, but which account was not dated, it was sufficient, it being presented as a debt due at the date of the suit. Kenefick v. Caulfield, 88 Va. 122, 13 S.E. 348.
4. Account of " Per Account Rendered," with Proof. -- An account filed with the declaration in assumpsit for goods sold, charging goods sold " per account rendered," with proof that the account was rendered, is sufficient. Robinson v. Burks, 12 Leigh 378.
5. Filing Note. -- In an action of assumpsit, defendant pleads non assumpsit, and, with it, files affidavit of set off, and the set off, which is a note. This is a substantial compliance with the statute, the record showing that plaintiff had full notice of the character of the set off, and that he was not taken by surprise. Bell v. Crawford, 8 Gratt. 110 at 133.
C. WHEN NOT SUFFICIENT.
1. When Items Not Plainly Mentioned. -- Where the declaration does not plainly describe the items, and the account filed therewith merely mentions the sums paid, without any information about them, the account is not sufficient. Johnson v. Fry, 88 Va. 695, 12 S.E. 973. See Burwell v. Burgess, 32 Gratt. 472.
2. On Demand for Store Account, Note Filed. -- An account, stating the several items of the claim in every action of assumpsit is required to be filed, and, if a bill of particulars is filed specifying only a note and no other claim, proof will not be received of any demand for a store account. Walsh v. Schilling, 33 W.Va. 108, 10 S.E. 54.
3. Not Properly Designating Creditor. -- In an action of assumpsit by an administrator, the count is for money had and received, and the bill of particulars merely states an account in which the defendant is debtor to the administrator for a stated sum of money received. The count and the bill of particulars are not sufficient to admit of proof of an admission by the defendant that he had received from a third person certain money belonging to the estate of plaintiff's intestate. Minor v. Minor, 8 Gratt. 1. See Mann v. Perry, 3 W.Va. 580.
VI. AMENDMENTS.
A. WHEN ALLOWED. -- If substantial justice require that the plaintiff be allowed to amend his bill of particulars, and if it be clear that such amendment cannot operate a surprise to the defendant, the cause ought not to be continued because of such amendment. Anderson v. Kanawha Coal Co., 12 W.Va. 526.
VII. OBJECTIONS TO.
A. GENERAL RULE.
1. Demurrer Ineffectual. -- The bill of particulars is not a part of the pleading so as to be reached by demurrer. Clarke v. Ohio River R. Co., 39 W.Va. 732, 20 S.E. 696. See Abell v. P. M. Life Ins. Co., 18 W.Va. 400; Riley v. Jarvis, 43 W.Va. 43, 26 S.E. 366.
And so it was held in Booker v. Donohoe, 95 Va. 359, 28 S.E. 584, that, the account which the statute requires to be filed with an action of assumpsit, setting forth the items of the plaintiff's claim, is not a part of the declaration, so as to be subject to demurrer. See Campbell v. Angus, 91 Va. 438, 22 S.E. 167. Overruling Wright v. Smith, 81 Va. 777. See also, King v. N. & W. R. Co. 99 Va. 625, 39 S.E. 701; Sheppard v. Peabody Ins. Co., 21 W.Va. 368; Columbia Accident Ass'n v. Rockey, 93 Va. 678, 25 S.E. 1009.
B. EXCEPTION. -- But the rule is otherwise, where the parties agree in writing that the case made by the declaration may be supplemented by the bill of particulars. King v. N. & W. R. R. Co., 99 Va. 625, 39 S.E. 701.
C. MUST BE RAISED IN TRIAL COURT. -- In action for damages, defendant's motion that plaintiff be required to file bill of particulars is denied, but at the next term it is allowed, and plaintiff files bill, and trial proceeds without defendant asking for time to consider his defense. He cannot raise the objection in the appellate court. Cent. Lun. Asylum v. Flanagan, 80 Va. 110.
And in Varner v. Core, 20 W.Va. 472, it was held, that, if defendant fails, during trial, to ask the court to require plaintiff to file a statement setting out his objections to the settlement in controversy, he cannot be heard to complain in the appellate court.
[*]For monographic note on Bill of Particulars, see end of case.
[*]Judge Coalter absent.