Vila v. Weston

Butler, J. A bill of particulars is demandable by the defendant of. right, where there are general counts. It may be asked for in respect to one or all the counts. If required and ordered for all the counts, it limits the right of the plaintiff to give evidence in respect to all. If not required at all, the defendant waives, or rather does not exercise his right, and if required in respect to .one or a part of the counts, the right is waived as to the others. So the plaintiff may voluntarily give a bill of particulars in respect to one or all the counts, and he will be concluded to the same extent as if the bill was demanded and ordered, and furnished in compliance with the order, for it is in effect an amendment of his declaration. It is not unusual for a plaintiff to give, or for the defendants to ask, a bill in respect to the counts for goods sold, or work and labor done, without reference to the money counts, and in such case the bill is not operative as to them. In this case it does not appear whether the bill was furnished voluntarily, or on request, or in compliance with an order of the court; nor does it appear whether it was asked for or given with reference to all the counts or not. On its face it is applicable to the count for goods sold, and that only, and there is no presumption that it was asked for, ordered or intended for any other. The court must be presumed to have acted rightly, and the onus of showing the contrary is upon the defendant, and as the motion does not show that [48] the bill furnished was intended for the money counts and was operative in respect to them, the first point of the defendant could not avail him if right in respect to the principles involved. But the defendant is wrong in respect to those- principles. Such a bill is doubtless in a general sense an amplification of the general count and has the effect to make it, quoad the consideration of the alleged promise, a special one, but its only purpose is to apprise the defendant of the nature of that consideration and demand. It need not be technically accurate ; it can not be demurred to; it is sufficient if it gives the necessary information to the defendant, and if he thinks it does not he must move to have it made more specific, or abide it. As the sole office of the bill is to give the party information which the pleadings by reason of their generality do not give, he can not require the bill where the necessary information is contained in a special count. It is not necessary, therefore, that the plaintiff should insert in his bill a note which is declared upon specially, or state in the bill that he shall offer it under the money counts if it becomes necessary. The defendant is informed by the special count that the plaintiff claims to recover in that action on that note, and he knows, as matter of law, that if the plaintiff has misdescribed it, and it is objected to on the ground of variance, he will have a right to offer it, and probably will offer it, under the money counts; and these are all the material facts that he could learn from the most carefully prepared bill of particulars. These- principles have been recognized in our sister states, although the cases seem to have been overlooked. Thus, in Tibbetts v. Pickering, 5 Cush., 83, a note was declared upon specially, and the money counts were added. A rule of the court prescribed that the plaintiff in all cases where there were general counts in the declaration should file a bill of particulars, and should not be permitted to give evidence applicable to them unless he did so. None was filed in the case. On the trial the note declared upon was offered under the special count, and objected to on the ground of variance. The court admitted it, and the question whether it was prop [49] erly admitted or not was carried to the supreme court. That court did not decide that question, but held that it was unnecessary to do so, for that, if inadmissible, a new trial could not be granted because the note was admissible under the money counts noth withstanding there was no bill of particulars. In respect to that question the court said: — “ The defendant had full knowledge of this claim of the plaintiff from the pleadings. The note itself now sought to be recovered was set forth as a cause of action in one of the counts. This superseded the necessity of filing a bill of particulars, setting forth the note as a demand upon which the plaintiff would rely at the trial.” So.in The People v. Monroe, 4 Wend., 200, a note was declared upon specially, and offered, objected to, and received under the money counts, although there as here there was a bill of particulars which did not specify it. The case went up to the supreme court on that ruling, and they sustained it. Chief J. Savage, in giving the -opinion of the court, said: — “ The note was properly received in evidence, although not specified in the bill of particulars. The use of a bill of particulars is to apprise a party of the specific demands of his adversary, when the pleadings are general, and leave uncertain what is particularly demanded, either in a declaration or notice of set-off, and has no application whatever when the demand is specifically set forth in the pleadings.” These principles and cases are decisive of the point. The defendant is right in his claim that the plaintiff must have the legal title to the note at the time of trial. That was settled in the cases of Lee v. Jilson and Curtis v. Bemis, and is not an open question. He is also right in his claim that if the plaintiff parted with his title after suit brought, he could not sustain the action by re-purchasing the note before trial. The plaintiff in a suit must stand at the trial on the rights existing and possessed at the time it was commenced. If therefore the title on which this suit was instituted and which gave the plaintiff a right to institute it, was afterwards voluntarily transferred to Goodman, it was no longer in existence, and a new title would not sustain the action. The right [50] wliicli the action, was commenced to enforce was destroyed by the transfer, not suspended, and the plaintiff was in no better position than if none had been possessed when the suit was brought, and one had been acquired afterwards. But we can not assent to the claim that the title to the note in question passed to Mr. Goodman.. It was not the intention of the parties that it should so pass when the note was first indorsed and sent to him for collection. That clearly appears from the circumstances detailed and is found by the court. And we think it sufficiently appears that it did not pass by the assignment. That instrument is somewhat peculiar and ambiguous. It speaks of a debt or claim on which a judgment had been recovered. What debt ? The record shows that the note was declared on specially, but there were general counts and a bill of particulars setting forth an account, and the judgment could have been rendered on either. It does not therefore specifically describe the note. It describes the subject-matter of transfer also as “ a debt or claim against the late firm of Imlay & Weston on which a judgment had been recovered against Weston as surviving partner,” &o., “ with all sum or sums of money due or that shall be due thereon,” &c., that is, a debt which was against the firm but which had been turned into a debt against, the defendant. The fair construction of this instrument on its face is, that the terms debt and claim are used to identify the judgment and because the original debt was against the firm and the judgment was against an individual member of it. And looking also at the language in which the power and authority to collect and discharge are couched, the fact that the note was merged in the judgment and not then legally existent or valueless because the debt for which it was given was merged, and the fact that the assignee was an intelligent lawyer who could not have been guilty of the folly of purchasing a note merged in a judgment, or rendered valueless by a merger of the consideration, leaving the title to the judgment remaining in the assignor, we can not doubt that the instrument was intended by the parties to pass and did pass the judgment only, and that when that was reversed and [51] annulled the parties to the suit were restored under our statutes to their original status and rights, and the assignee of the judgment became entitled to recover the price paid for it ou the ground of a failure of consideration. Whether he would if he so elected have had a right in equity to the new judgment when obtained, if he had not released, we need not inquire. A new trial should be denied. In this opinion the other judges concurred.