Porter v. Horton

Mr. Justice Sears delivered the opinion of the court. But two questions are presented for consideration, viz.: the propriety of the ruling by the trial court refusing the instructions whicíí related to a right of recovery under the common counts, and the admission of the testimony of Frederick L. Horton as to transactions with George M. Porter, appellant’s intestate, in his lifetime, in relation to the subject-matter of the suit. We think it clear that a co-surety, who has been obliged to satisfy the joint liability. of the several sureties, may recover at common law and under the common counts the amount due by way of contribution from a co-surety. Sloo v. Pool, 15 Ill. 47; Golsen v. Brand, 75 Ill. 148; Harvey v. Drew, 82 Ill. 606; Odlin v. Greenleaf, 3 N. H. 270; Godall v. Wentworth, 20 Me. 322; Cowell v. Edwards, 2 Bos. & P. 267. The only question, then, is as to whether the bill of particulars filed by appellant so limits her right of action by its specifications as to preclude her right to recover under the common counts upon the right to contribution from appellee. We are of opinion that to so hold would be to give to the bill of particulars an unreasonably narrow and technical construction. The bill of particulars operates in practice merely to give a proper notification to the adverse party of the nature and grounds of the claims to be presented. It has served that purpose, if from it the litigants are apprised of that which they will have to meet. To give it any more technical effect would be to thwart the ends of justice. In Millwood v. Walter, 2 Taunton, Chief Justice Mansfield said: “ The bill of particulars must not be made the instrument of that injustice which it is intended to prevent.” It is well settled in this State, that a bill of particulars operates to limit the right of recovery to the grounds therein specified. Waidner v. Pauly, 141 Ill. 442; Star Brewery v. Farnsworth, 172 Ill. 247. But we hold that here the recitals of the bill of particulars are broad enough to inform the appellee that appellant sought to recover upon all her rights arising from the executing of the bond and the payment by her intestate of the sureties’ liability thereunder. There would seem from the record to be an undoubted right of appellant to a contribution by appellee. To deny that right upon the ground that this bill of particulars was insufficient to apprise appellee of the grounds of appellant’s right to a recovery, would be, as we view it, a straining of technical rules to accomplish an injustice. The remaining question is as to the ruling of the trial court in admitting the testimony of Frederick L. Horton as to transactions had with appellant’s intestate in relation to the executing of the bond here in question. We are inclined to view the evidence given by Horton as competent and properly admitted. But the admission of it is a matter of no importance, for there was no conflict in the evidence as to the fact that the agreement to indemnify was given in connection with the Upton bond, and not in relation to the bond here. If all the evidence of Horton were stricken out, it would in no way affect the conclusion which the jury must have reached from the undisputed evidence in the case in relation to the agreement to indemnify. Because of the refusal of the trial court to instruct the jury as to appellant’s right to recover under the common counts by way of contribution, the judgment is reversed and the cause remanded.