Wiggins v. Guthrie

Smith, C. J. (after stating the case as above.) Upon the introduction of the plaintiff as a witness on his own behalf, objection was made to his testifying in support of the claim, because, when demanded, he had failed to furnish a bill of particulars thereof under § 259 of The Code. This section declares that while “ it shall not be necessary for a party to set forth in a pleading the items of an account therein alleged, but he shall deliver to the adverse party, within ten days after a demand in writing, a copy of the account, which, if the pleading is verified, must be verified by his own oath, or that of his agent or attorney, if within the personal knowledge of such agent or attorney, to the effect that he believes it to be true, or be precluded from giving evidence thereof,” &c. This enactment, which, in case of a disregard of the demand, shuts out all proof of the items of the claim coming from any witness (and does not close the mouth of the party making it alone), is intended to meet the case of a complaint that does not set out the particulars, and confine the evidence at the trial to such as are set forth. Its aim is to supply an omission to give them in the pleadings, and hence, when furnished, they become substantially and in legal effect a part of the complaint itself. The People v. Monroe, 4 Wend., 200. “ The better practice,” says the Court in Kellogg v. Paine, 8 How. Pr. Rep., 329, “ is for a party who intends to preclude his adversary from proving an account on the ground that he has not complied with a demand, or an.order for the particulars of such account, to apply for an order to that effect [676] before the trial, so as to have the question settled before the trial.” The propriety of this course is strikingly manifest in this case. But a complete answer to the objection is furnished in the fact that such bill is attached to the complaint, and made, by reference, a part of it, so that no such demand is authorized, unless the statement is defective; and the appropriate remedy for this is an application to the Court for a more definite bill, in which the defects should be pointed out. Kellogg v. Paine, supra. There was no error in receiving (the testimony offered. We do not set out the building contract made between Ransley and the defendant, which is full and minute in its specifications, and contemplates a complete and finished job undertaken by the former for a fixed price to be paid by the latter. The next exception was taken, during the cross-examination of the plaintiff, to the production of an order under date of September 4th, 188(5, drawn by Ransley on the defendant in favor of the plaintiff for $258.G5, which was referred to in explanation of and giving reasons for an entry on plaintiff’s journal. The exhibition of the order was a verification of what he was saying about its contents, and is part of the cross-examination itself. The reason given for the ruling to receive the order as evidence for the limited purpose mentioned is entirely satisfactory in sustaining it. The further objection to what was said by the witness that led to the production of the order is quite as untenable, as it was elicited by the defendant’s counsel without interference until the evidence was out. As is said in the opinion in McRae v. Malloy, 93 N. C., 154, the defendant, “if opposed to the giving in of the testimony, should have interposed and arrested the examination, or if this conld not be done in time, should have asked the Judge to require its withdrawal or direct [677] the jury to disregard it, so that it would become harmless. But it is not admissible for counsel to be quiet and allow the evidence to come out and take advantage of it if favorable, and if not to ask that it be stricken out and not considered.” If we misinterpret the record as to the time when the objection was made, we see no intrinsic objection to the matter of the testimony itself, and for the reasons given by thepre-. -siding Judge it was competent. The next exception is to the ruling made at the commencement of the trial, that what the answer sets up as a counter-claim being less than $200, and cognizable in a Justice’s Court only, could not be enforced as a demand for affirmative relief, but the defendant could avail himself of it as a recoupment in reducing the plaintiff’s demand. This accorded to the defendant all the benefit to which he was entitled, and he should be content in being allowed to use it for this purpose. But the objection disappears in presence of the fact that precisely the same purpose was subserved whatever name be given to the defence. Inasmuch as the plaintiff recovered a.much larger sum, whether a counterclaim, recoupment or set-off, the opposing demand, if allowed by the jury, would necessarily be in effect a diminishing of the plaintiff’s clairp, and this, to some extent, would seem from the verdict to have been done, as the sum assessed by the jury is less by $25 than that demanded in the complaint, or it lias been disallowed altogether. We have carefully considered the instructions asked and denied or modified, an'd those given to the jury, in the light of the full evidence as reported, and are unable to find any reviewable error in either. There is no dispute that the defendant’s agreement with Ransley required the latter to furnish all the materials and do all the work in putting up the house, doing what is called “ a turnkey job,” for all which the former was to pay for the work as it progressed definite sums until it was completed. [678] It is also not denied that the material for the value of which the suit is brought was supplied by the plaintiff and entered into the construction of the house. So the only question is, were these supplies furnished to the one or the other of these contracting parties, and do the facts proved authorise the inference that they were on the credit of the defendant with his assent, from which a contract to pay for them may be implied ? This the jury found, and there was no direction asked to be given to the jury that there was no evidence warranting the verdict, and no complaint can now be entertained here for the failure to give such an instruction. The fourth instruction refused is .outside the controversy, for it is not whether the defendant became collaterally liable for the debt of Ransley, under the Statute of Frauds, but whether he contracted himself for the goods, and therefore the evidence did not admit of such charge. The sixth instruction was properly refused upon the ground stated by the Judge, for it was not material whether the plaintiff had or had not paid for so much of the lumber as he got of Petty & Co. — the Bush Iiill bill — if as his material thus acquired they were furnished to the defendant under a contract with him. We find no error in the record of which the defendant can complain, and the judgment must be and is affirmed. Affirmed.