Pryor v. Johnson

WALKER, J. The Code (§ 2233) in terms gives to the defendant a right to have, “ at any time previous to the trial” [29] a list of the items composing an account which is the foundation of the suit. It. is manifestly contemplated by the statute, that the requisition of the bill of particulars, and the compliance with it, shall be before the trial. An objection that the bill of particulars, or list of items, is insufficient, must be made before the trial. If made upon the trial, it would operate a surprise. If made before the trial, the deficiency might be supplied. In Lovelack v. Cheveley, 1 Holt’s N. P. 552, (3 E. C. L. 185,) it is said: “Theparty who objects to the particulars, as insufficient, must make his complaint at the proper time. He cannot wait till the trial of the cause, and then raise an objection, which, if earlier made, might have been disposed of. In this case, if the plaintiff had not time to tax the bill, he might have applied to the court; but, by keeping the particulars, he has waived his objection.” See, also, 1 Phillipps on Evidence, 193; Goodrich v. James, 1 Wend. 289. The objection to the sufficiency of the bill of particulars -was made in this case upon the trial; and, for the reasons above stated, we decide, that the objection came too late, and was, therefore, properly overruled. 2. The failure of the plaintiff to show upon the trial for what specific articles furnished the charges of the account were made, and the amount of the charge for each article, was not necessarily fatal to his recovery. It is conceivable, that the plaintiff’may have been able to establish the justness of the demand, without being able to set forth in detail the articles sold. The court properly rejected the charge asked by the defendant, which would have precluded the plaintiff from a verdict, although he had proved his claim by the clearest and most satisfactory testimony. The judgment of the court below is affirmed.