Bland v. Strange

McCay, Judge. Whilst I fully recognize the existence as well as the importance, both to parties and to the public, of the rule that judgments are conclusive as to all matters put in issue, or which, under the rules of law, might have been put in issue, I am still of opinion that the court was in error in refusing to permit the affiant to show the true date at which the debt upon which the judgment was founded was contracted, and that there was nothing in the proposal to do this infringing, or in the least interfering with, the integrity of the rule to which I have alluded. It must be noted in the first place that it is the judgment and not the declaration and pleas that makes the estoppel. [96] The declaration and pleas are only evidence, as explanatory of the judgment. It is not, therefore, every fact stated in a declaration which a judgment in favor of the plaintiff conclusively establishes. If the declaration state a fact which the judgment does not necessarily involve, or if the fact be immaterial or surplusage, the judgment does not establish.it: Phil. Ev., Cowen notes, 2 vol., 20, 21, 13, 15, 14. The date of an account is only material to show that the debt is within the period of limitation, or to fix the time when interest is due upon it. The common counts in assumpsit are promises upon debts due before that time, but the precise day is not stated usually in assumpsit. In our statutory form all that is required is to state that so much is due upon an account, with a reference to a bill of particulars attached: Code, 3393. To require each item of the bill of particulars to fix the date with precision at which it was contracted, or to require it to be amended, if the proof fail to fit it in date and precise amount, would, as I think, be absurd. Surely, one may present a bill of particulars for fifty pounds of sugar at ten cents, dated 1st of July, 1870, and recover for forty pounds at eight cents, of a different date without an amendment. The truth is our Jones’ form, as it is called, for an open account, of unliquidated demand, covers parol contracts, implied contracts, or a quantum meruit, or a quantum valebat, and neither the date nor amount are treated as such allegations as that there would be a variance if the proof showed a different date or amount. If this be so, and I think the law is unquestionable, then a judgment on such a claim may always be explained since the precise date or amount set out in the bill of particulars is not material. For myself, under the rules well established by the books on this subject, I should say that in suits upon open accounts, when the details of the account appear by bill of particulars, the date fixed in the bill of particulars and amount of the item may always be shown to have been proven on the trial differently from what is stated in the bill, if for any reason it becomes important to get at the truth. The rule that parol [97] evidence will not be received to vary or contradict written, does not apply to bills of parcels, or bills of particulars: 1 Greenleaf’s Ev., sec. 305, and note. But though I am satisfied that the rule does not exclude this evidence in any case where the date or amount is not descriptive of a paper, but appears merely in a bill of particulars which is intended only to show the items which make up the gross sum sued for, and thus give defendant notice of the nature of the claim ; yet, it does not need so wide a rule as that to co.ver this case. The bill of particulars fixes only the year. Perhaps this rent was to be paid under a contract for a fixed sum, and the contract was not made or the amount fixed until after July, 1868, or even later. Who shall say? What right has anybody to say that because the house is-stated to have b^en occupied in 1868, that the contract was made at the time possession• was taken? But there is a stronger view of this ease than even this. The plea claims two things, to-wit: That the house was, in fact, rented in 1869, and was paid for by defendant boarding plaintiff’s s6n in the house during that year. The jury, it is true, find against the defendant in the payment, but they find for the plaintiff for the full amount claimed, with interest from 1st February, 1870. As I understand this verdict, it is a finding that the year of the renting commenced in February, 1869, and ended February, 1870, and the judgment, so far from being conclusive that the contract was made in 1868, proves, if it proves anything on the subject, that the renting was from February, 1869, to February, 1870. The verdict is inexplicable, except upon the assumption that the year of the renting ended February, 1870. If the plaintiff was entitled to interest at all, it was from the end of the year from which the property was rented. Had the jury found, as the plaintiff’s declaration claimed, they must have given him interest from 1st January, 1869. Instead of that, they find interest only from 1st February, 1870. We must assume that when the plaintiff came to prove his case he found that in fact the renting was from 1st of February, 1869, to the same date in 1870, [98] and as the judgment is the matter which estops, it seems to me that if there be any estoppel it is upon him who says that the verdict and judgment are wrong. The jury found accoi’ding to the statement of the plea, to-wit: that the renting was during 1869, after 1st of February, up to 1st of February, 1870. Taking the declaration, plea and verdict together, and the inference is almost irresistible that the jury have found that the debt was contracted upon a renting in 1869, and that it was due 1st February, 1870. At any rate, in the conflict between the verdict and the sworn statement of only the year in the declaration, and the denial, in effect, of this in the pleadings, I think that parol evidence ought to have been admitted when offered, going to show the renting was in 1869, and not in 1868. Judgment affirmed. Trippe, Judge, concurred, but furnished no opinion.