Nilsen v. Ebey Land Co.

Bausman, J. The complaint alleged a sale of “goods, wares, and merchandise” of reasonable and agreed value without stating what they were or on what precise dates they were sold, the only description being in a subsequent bill of particulars which contained many items of various dates. The answer, after denials, alleged, by way of rescission, that defendants had bought from plaintiffs an engine, which, being found worthless, was tendered back. The case comes to us on a bill of exceptions which includes only the pleadings and the instructions. The substance of the latter shows that the jury was allowed to consider this engine as a separate article, whereas appellants claim that it was sold as part of a pumping plant, and that the rescission attempted was bad because the rest was not tendered too. In support of this, we cannot consider the bill of particulars at all, for we have held that such a bill neither is part of a complaint nor is traversed by an answer. It does not amplify a complaint. Dudley v. Duval, 29 Wash. [296] 528, 70 Pac. 68. We have consequently nothing before us to show whether these articles were sold as one plant and for an entire price. As the bill of particulars is not a pleading, so, also, it is not proof. It is a mere announcement of proposed details, which in this trial may or may not have been offered. In fine) we have neither pleadings nor evidence on which to start a presumption against the instructions. Judgment affirmed. Morris, C. J., Holcomb, Main, and Parker, JJ., concur.