Pipes v. Norton

Tarbell, J.: • The declaration is in the usual form of indebitatus assumpsit for goods, wares and merchandise, sold and delivered, and for money paid, laid out and expended. Plea: Non assumpsit. . The claim, according to the declaration, was upon an open account. Upon the trial the defendants objected to proof of the account sued on, under art. 90, Code, 492, which provides that “there shall be annexed to, or filed with the declaration in every case founded on an open account, a copy of the account or bill of particulars of the demand;” and, that “no evidence thereof shall be given on the trial, unless so annexed or filed,” the defendant insisting that the particulars furnished were insufficient, and that the drafts upon which the money was paid, should be produced upon the trial. The objection was overruled, and verdict and judgment followed for plaintiff. From this judgment, the defendants below prosecute this writ of error. The bill of particulars, filed with the declaration, consisted of items, of which the following are selected by way of illustration, to wit: “ To invoice, pier Quitman, $98;” “ To Draft, per Keep & Caulfield, $168; ” etc. Neither the original books of account of' the merchant, nor the drafts mentioned in the account filed, were produced on the trial. The deposition of the merchant is the only evidence sent up with the record, or was, we suppose, .the only evidence offered. The testimony of the merchant is, in substance, that he had previously rendered bills of items of the account sued on to the defendants, to which they had made no objections, showing, if uncontradicted, an account stated, between the merchant and his customers, the defendants. The effort of counsel was, on the trial, as here, to sustain the statement filed with the declaration, as a sufficient compliance with the code. As to the argument drawn from the common law, — 71 — upon this subject, we observe that adjudications and rules of practice, where bills of particulars are rendered in obedience to judges’ orders, as at common law, are, to a great extent, inapplicable here, because there the party could obtain another order for a further and more specific bill, or, neglecting to require a further bill, he was not then permitted to complain on the trial, provided the bill served afforded a reasonable and substantial notice of the cause of action, and subject matter of defense; and for the reason that the party had his remedy by an order for a more particular bill. Such were the cases of Goodrich v. James, 1 Wend. 289, and of Barnes v. Hernshaw, 21 ib. 426, cited by counsel. In the former, which was an action of assumpsit, for goods sold, this item occurred: “ Goods sold the defendant as per account rendered, $80.” This was held sufficiently definite by the supreme court of N. Y., but, for the reason that it gave the defendant notice of the nature of the claim against him, and if not satisfied with it, he should have applied, say the court, for an order for further particulars, before the trial. In the latter, the defendant on the trial, objected to evidence of the plaintiffs claim because of the generality of the bill of particulars, but it was held on error, that “ the trial is not the place at which an objection for too great generality in the bill can be made.” 'And this .view is enforced in a variety of expressions, through a somewhat lengthy opinion, in the course of which the court say, “ If the party calling for the bill, thinks he has not been fully informed, or desires further information,” a judge may suspend the proceedings, and at chambers look into the matter, and require 'the party in default to give such further information of particulars as may be reasonably required, and it is in his power to give. That is the place for trying the sufficiency, in other words, the fullness and particularity. Whether the party has gone as far as he is able in his statement, — 72 — may be one question. Extrinsic circumstances are to be looked into. Therefore, the question on fullness is one which cannot be determined by the judge at the trial. He cannot know intuitively, what story the party supposed to be in default, could have told about his cause of action, with safety to his ulterior course in the cause. If the bill was insufficient, therefore, it should have been objected to, at least before the trial; and, indeed, before the party objecting took another step in the cause. If a party go on or lie by an unreasonable length of time, he waives all objections on account of the defect.” The English rule is thus stated: “ The party 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.” Ch. J. Gibbs, in Lavelock v. Cleveland, 1 Holt’s Cas. 552. In Pierce v. Craft, 12 John. 90, the action was assumpsit, and the declaration was on the money counts. Plea, non-assumpsit. On the trial the plaintiff relied on two promissory notes for value received, to which, as evidence, the defendant objected. After disposing of several points, the court say, “ another objection is, that the general form of action subjects the defendant to unfair surprise,” but to this it was replied, “ the defendant may always protect himself against surprise, by demanding a bill of particulars.” Plence, upon the trial, an objection to a bill of particulars for want of particularity, was not, under the common law practice, received with favor, and so, a bill giving a party fair and reasonable notice of a demand or set-off, was held sufficient, although, upon demand of a judge at chambers, a more particular bill would have been ordered. If we have correctly developed the common law practice and doctrine, it follows that the old precedents afford no certain criterion in the determination of the — 73 — requirements of a statute like ours. A party filing a bill of particulars, does so at the risk of having proof of his claim rejected, if- his bill is wanting in fulness. There is no authority to appeal to a judge at chambers to settle the point in advance of the trial, and the party ought to conform to what is frank, honest, and in good conscience. There is also another material difference between the practice at common law, and under our statute. By the former, an account rendered may be referred to in a bill of particulars, as previously delivered, the bill giving the footings only, whereas our statute requires the bill of particulars to be “ filed with the declaration.” It would clearly be insufficient and evasive to file with a declaration on an open account, the aggregate of such account only, referring to particulars theretofore rendered for further information. A further argument in support of our view, may be drawn from the language of the statute, which enacts, that, when the action is upon an “ open account,” a “ copy of the account ” shall be filed-as a bill of particulars, with the declaration. The suit at bar is upon an “open account.” According to the statute, there should have been filed “ with the declaration,” a “ copy of the account” sued upon, whereas there was filed merely the amounts of invoices, or bills rendered. Were the action upon an account stated, this bill of particulars would have corresponded therewith, for in such case, the nature of the action, the issues and proofs are all somewhat changed, the basis being a new promise. Although portions of an account stated may be contested, yet the items thereof, in extenso, need not be given in evidence, and consequently, the bill of particulars may conform to the nature of the action. The history of legislation upon the subjéct under discussion, affords a further illustration of our views. As is well known to the profession, the general mode of de — 74 — daring and pleading at common law, in cases within the common counts in assumpsit, was open to, and in fact, resulted in very great abuses, so that the injustice and oppression practiced upon parties produced complaints, followed by legislation looking to a more specific statement of causes of action and defense, more particularly with reference to open accounts and notes. Legislation of this character has taken place in every state in the Union, with a like purpose. In the beginning of such legislation, in'every instance .probably, but slight modifications and restrictions upon the common law practice have been imposed, but subsequent enactments have effected a radical and complete change. The history of this legislation in Mississippi, is the same .substantially, as in all the other states, and is illustrated by the statutes of 1822,1850,1857 and 1871, the latter, § 580, Code of 1871, admitting of no question of its intent. As a part of this general system of legislation compelling parties to a more definite statement of their cause of action and defense, with a view to obviate complaints of surprise and injustice under the old system of general pleading, actions upon notes and all written instruments, as well as the action of ejectment, have been regulated by statute requiring a copy of the writing, in the one case, and a statement of the title in the other, to be filed. The statute of 1822, required the plaintiff’s demand or defendant’s set-off to be so particularly described in the pleadings, or bill of particulars, as to give the opposite party “full notice” of the character thereof only; so that adjudications under that statute afford little aid in the construction of the statute of 1857. The statute of 1850 need not be reviewed, and the provisions of the Code of 1857 have already been given. The Code of 1871, § 580, provides that “ where an open account is sued on, there shall be filed with the declaration, ‘before process issues,’ an ‘ itemized ’ copy of the account sought to be — 75 — recovered, and if this be not done, plaintiff shall not be permitted to give evidence in support thereof.” Thus, the legislation in this, as in other states, has steadily tended to greater exactness in pleadings, or a more definite statement of the cause of action, as a reform of uncertain, unmeaning, indefinite generalities. There is another consideration affecting alike the bill of particulars and the mode of keeping the books in this instance. It is not, certainly, according to the authorities and- reason, the most approved method of entries in books of account. We can well conceive, that in keeping books of account, by entering only the aggregate of “bills rendered,” there are far more serious objections to the books of a merchant thus kept, than to those of a mechanic. Suppose a merchant and a mechanic each charge in their respective books against a customer, the one, “ goods as per bill rendered, $75,” and the other, for “labor and material furnished, $75.” In the former case, the aggregate may be made up of a thousand different items, which are contained in a variety store, and constitute the wants of a family, and a planter, or a mechanic, including dry goods, groceries, hardware, dress goods,, crockery, kitchen ware, mechanic’s tools and farming implements. If the bill be lost, omnipotence alone, could give the items, and thus mistakes, whether accidental or intentional, could never be detected and corrected. In the case of the mechanic, however, experts by knowing the particular job performed, or the character of the work, might approximate, with great accuracy and certainty, the labor and materials necessary to its performance. We do not impugn the books in this case, nor question them as evidence, but this objection seems to be a serious one to the bill of particulars, and to the mode in which the accounts were kept, as a rule, which, to some extent, confirms our general view of this branch of the — 76 — case, that as an action in form upon an open account, the bill of particulars is insufficient. On the other hand, a custom of merchants, as to their mode of keeping and rendering accounts, is invoked as providing a rule in this case.. We are not informed of any such usage. None is in evidence. The adjudications define the most approved methods of bookkeeping; and the entry of items is enforced in numerous cases. A single item, by a mechanic, thus, a bricklayer’s charge of “ 190 days work,” was rejected; as was this: “ thirteen dollars for medicine and attendance,” by a physician. The laws of Texas require an account to be kept by items, and in 5 Texas, 343, a single charge, stating the aggregate, “as per bill rendered,” was questioned “upon principle.” “ Inovice ” is a well understood term, and signifies only a written account of the particulars of merchandise shipped to a purchaser, factor, or consignee, with the value or prices and charges annexed, but implies no custom. An “ invoice” of goods, is merely another term for “ bill rendered.” In this case it means only, that the merchant had rendered to his customer, before suit, an itemized statement of the account against him. This, however, is not in compliance with art. 90, Code of 1857, p. 492, nor with the Code of 1871, sec. 580. While thus holding with reference to the contents of the bill of particulars, we do not hold that in an action upon an open account, the amount due cannot be established by an implied admission of the correctness of the account sued on, and that such implied admission may be in the mode understood, by the term, “ stated account.” A sufficient bill of particulars being filed with a declaration upon an open account, proof of a prior delivery to the defendant of the items of the account sued on, which the latter held for some time without objection, creates an “ account stated,” and involves an admission by .implication of the plaintiff’s demand; 25 Miss. 267; 26 ib. 212; but such is not the case at liar, in this, that the — 77 — bill of particulars is insufficient under the common counts. The simple and consistent solution of this case, within our view, required only an amendment of the declaration by adding an insimul computassent count to which the present bill of particulars would have been appropriate ; or an amended bill of particulars, stating the items of the account claimed. The plaintiff made his own case and summoned the defendant to respond thereto. As the case was thus made, the several items of the account sued on were open to litigation, and the code required the plaintiff to file a copy thereof with his declaration, imposing as a penalty for a failure to comply therewith, a forfeiture of the right to give evidence of the same. The defendant, as we may suppose, responded to the case presented by the plaintiff, and on the trial objected to the evidence offered, for the reasons stated. No offer was made or leave asked to amend complaint or bill. Thus stood the case when the objection to the testimony was overruled. The account itself is not filed under an insimul computassent count, as a balance admitted to be due the plaintiff as upon account stated; but the complaint, upon an open account, concludes with an averment that the plaintiffs “ annex to this complaint, as a part thereof, an account and bill of particulars of said several sums of money.” The bill of particulars is headed, “ Messrs. C. A. & J. Pipes, Natchez, in account current with Est. R. Nugent, bankrupt.” And then follows the statement, “to invoice per Quitman, $98 ; ” “ draft per Keep & Caulfield, $168.” And several others like these. As a bill of particulars to a declaration upon the common counts, it is, upon its face, wholly insufficient. It is true, that at common law a promissory note, if given “for value received,” is evidence under the money counts, as an admission of the amount due. So under the common counts, with a proper bill of particulars, according to the form of the action, an implied admis — 78 — sion by the reception and retention, without objection, of an account rendered, would be evidence of the sum due, and thus a stated account mig'ht be said to be evidence under the common accounts, but as already stated, the objection in this instance is preliminary to the proof for a non-compliance with the statute, whereby the right to give evidence is denied. The classes, or divisions of implied assumpsit stated by Blackstone, and repeated by Tidd, have been followed in practice, and are observed at the present time. Another question, arising out of the testimony sent up with the record, will naturally be raised upon another trial, to wit: whether the books of account of the witness Nugent should not be produced in court in support of the plaintiff’s action. In answer to the fourth interrogatory, the witness, Richard Nugent, states in his deposition, as follows,: “ My bookkeeper, at the time referred to, was David Thomas, who has since died. I know the annexed paper, marked ‘A’ is a correct copy of the original items in my books, which I know were correctly kept. I believe said paper to be a correct copy or transcript of the original accounts in books, which I know were correctly kept.” In Moody v. Roberts & Co., 41 Miss. 75, the court say, “A custom has grown up in some parts of the state, which seems to have been followed in the present case, of giving in evidence copies of accounts, proved by witness to have been correctly transcribed from the books, and this course derives some support from the language of the court in the several cases of Hazlip v. Legget, 6 S. & M. 306 ; Simmons v. Means, 8 ib. 397, and Moon v. Joyce, 23 Miss. 584. But there does not seem to be any sound principle upon which such a practice can be sustained. It is going quite far enough to permit the original book itself, after being inspected by the court, and subjected to the scrutiny of the opposite party, to go as evidence to the jury, and in no — 79 — other way can the credit due to such testimony be properly estimated.” With reference to the money portion of the plaintiff’s demand it is suggested, in argument, by counsel, that the suit is “ not founded upon any negotiable subsisting security or other writing.” As a matter of fact, there is no description in the record of these “ drafts,” upon which the money is stated, in the bill of particulars, to have been paid. Whether they were letters, mere “ orders ” of the simplest form, or formal bills or drafts, known as such by the business community, does not appear. Upon this point the record is silent. In the absence of testimony, we must presume the term “ drafts ” found in the account filed, was used in its highest commercial sense, and consequently, that the money sued for was paid upon “ negotiable, subsisting security, or other writing,” or “ drafts.” In support of the argument, very strenously urged, that upon the evidence in this case, it was unnecessary to produce the drafts on the trial, we are referred to Curry, Dismukes & Co. v. Kurtz, 33 Miss. 24 ; and to Keene v. Meade, 3 Pet. 7. In the former, the rule of law requiring the production, upon the trial, of drafts paid by a plaintiff suing to recover the money advanced thereon, or such an identification thereof, and their absence so accounted for, that a judgment for the money would bar a future action on the drafts, is explicitly affirmed. In that case, as in the one before us, the plaintiff sought to recover money paid upon drafts, without accounting for, identifying or producing them on the trial. The claim was rejected. In Keene v. Meade, which was an action for money had and received, the defendant had, on request, written “ his name at full length ” in the “ rough cash book ” of plaintiff, “ not so much for the sake of the receipt, as in order for plaintiff to become acquainted with the signature ” of “ and the way of spelling his name ” by — 80 — defendant. The payment of the money was fully proved. It was objected, however, that the cash book and signature of defendant should be produced, as the best evidences, but the court say, “ The entry of the advance made by the defendant himself, under the circumstances stated, cannot be considered better evidence, within the sense and meaning of the rule on that subject, than proof of the actual payment. The entry in the cash book did not change the nature of the contract arising from the loan, or operate as an extinguishment of it, as a bond or other sealed instrument would have done. If the original entry had been produced, the handwriting of the defendant must have been proved, a much more uncertain inquiry than the fact of actual payment. It cannot be laid down as a universal rule, that where written evidence of a fact exists, all parol evidence of the same fact must be excluded. * * * The entry made by the defendant in the cash book was not intended, or understood, to be a receipt for the money, but made for a different purpose ; and even if a promissory note had been given as written evidence of the loan, the action might have been brought for money lent, and this proved by parol. The note must have been produced on the trial, not, however, as the only competent evidence of the loan, but to be canceled, so as to prevent its being put into circulation, a reason which does not in any manner apply to the present case.” Of the necessity of producing bills and notes upon the trial, to be canceled, unless shown to be lost or destroyed, see 3 Phil. Ev., with C. & H.’s and Edward’s notes, 4th ed. p. 157, et seq. and notes. If the absolute destruction be not proved, and the bill or note be not produced, such proof must be given, as shows that the defendant cannot after-wards be compelled to pay the amount again to a bona fide holder. Swift v. Stevens, 8 Conn. 431 ; 2 Stark. Ev. 142; 3 Phil. Ev., 4th ed. notes, 159. The — 81 — courts have, under various circumstances, allowed the contents of a note to be proved, when not absolutely destroyed, but only temporarily mislaid, or lost. Renner v. Bank of Columbia, 9 Wheat. 581 ; Jones et al. v. Fales, 5 Mass. 101 ; Lewis v. Petavin, 4 Mart. R. N. S. 4 ; 8 Pick. 278 ; 2 Fairf. 157 ; 12 Wend. 173. It has been held by high authority that a plaintiff cannot recover on the original consideration, unless he shows the note to have been lost, or produces and cancels it at the trial. Holmes et al. v. Camp, 1 Johns. 34 ; Burdick v. Green, 15 ib. 247. The doctrine seems to be clearly deducible from the authorities, that to justify recovery upon the original consideration, or secondary evidence of contents, in case the absolute destruction or loss of the bill or note be not shown, and it be not produced on the trial to be canceled, such a state of the facts must be proved, as will show that the defendants cannot afterwards be compelled to pay the amount again to a bona fide holder. 3 Phil. Ev., with C. & H. & E.’s notes, 159, and notes; 2 Pars. Notes and Bills, 285, et seq., and notes. It is the general rule that when a drawer, maker or other party liable on a bill or note, is sued thereon, he may insist on the production of the instrument. 2 Pars. Notes and Bills, 285. And its absence, unaccounted for, will furnish an adequate defense to the suit. Ib. 286. For the defendant is entitled to the note on payment thereof, as his voucher of discharge. Ib. and notes. An acknowledgment of the debt, or even a promise of payment, will not dispense with profert of the note, nor release the plaintiff from the necessity of accounting for its absence. Ib. 287. Because the payor may not only ask to see the note in possession of the party claiming payment, as evidence of his ownership, but may also demand possession of the note on his payment, as his best security against further demand. Ib. and cases cited in notes. To these au — 82 — thorities we add that of McLemore v. Hawkins, 46 Miss. Our opinion, delivered on giving the judgment which was remanded to the docket, was substantially as follows : 1. That the bill of particulars filed is insufficient; 2. That the “drafts” mentioned in the. pleadings and evidence should have been produced on the trial, or their destruction or loss proved. The opinion was studiously limited to the specific points presented, carefully omitting all reference to the exceptions and qualifications arising out of a change of facts, leaving these to be developed in the future progress of the cause. We stated only primary rules, which might be modified, or superceded by a change of- circumstances. The record before us furnishes no precise description of these “ drafts”; whether they were negotiable, and are a subsisting security; whether sight drafts, and instantly paid; whether their negotiability was destroyed by payment or otherwise; whether in fact they were put in circulation, and are outstanding in the hands of strangers; whether the drawers have been exonerated, in fact or in law, from their payment; or whether in case of judgment in this action and its satisfaction, these defendants might not be subjected to a second payment on these drafts in the hands of third parties, depend upon facts not presented to us. The observations now submitted, therefore, will serve to enforce and illustrate, as well as to show the limited scope of our opinion rendered on a former occasion in this case, and its intended consistency with acknowledged rules of law. 16 Md. 208; 4 Barn. & Cress. 235; 4 Car. & Payne, 44; 10 Pick. 31; 6 Mass. 358; 21 Pick. 247; 4 Mass. 93; 4 Mich. 387; 5 Tex. 343; 11 Leigh, 471 ; 4 Gilem, 98 ; 2 Greenl. Ev. § 127; 1 Johns. 334; 2 T. R. 479 ; 3 Camp. 101; 3 T. R. 182; 2 Johns. R. 235; 10 ib. 418; 3 Johns. Cas. 5; 8 Johns. R. 79 ; 12 ib. 90 ; 7 Wend. 311; 15 Pick. 212; 4 Seld. 346; 2 ib. 19; 11 — 83 — Pick. 315 ; 5 Maule v. Selw. 65 ; 4 B. Mon. 417 ; 1 H. Bl. 242; 2 ib. 1269 ; Bayley on Bills, 286 ; 2 Str. 719 ; 7 Barn. & Cress. 416 ; 1 Salk. 283; 5 Barn. & Cress. 360 ; Chitty on Bills, (7th ed.) 366 ; 3 Hill, 53; 6 Barb. 445 ; 12 Pick. 399; 7 J. J. Marsh. 44; 1 Bibb. 492 ; 16 Ala. 742 ; 3 S. & P. 67 ; 10 Ark. 428 ; 24 Conn. 175 ; 19 ib. 383 ; 16 ib. 106 ; 1 Root, 384, 148 ; 1 Conn. 175 ; 2 ib. 697. The judgment is reversed, and cause remanded.