Ammidown v. Century Rubber Co.

By the Court.—McAdam, J. The plaintiffs are evidently proceeding upon the theory that the goods, though fraudulently purchased by Carpenter and Lockwood, cannot be taken from the Rubber Company if it in good faith made advances on the security thereof. They claim, however, that the goods cannot be held for advances generally or a precedent debt, and their object in insisting upon the last bill ordered is to enable them to determine whether the lien asserted is for a precedent debt, advances generally, or for specific advances on particular consignments. This could readily be decided if the Rubber Company specified separately each consignment with the special advance made thereon. This course would also enable the court to see at a glance the precise question to be determined. Courts are liberal in requiring bills of particulars as a sort of curative aid in the administration of justice by preventing surprise and giving each party a reasonable opportunity to produce his proofs and to meet and sift those of his adversary. Dwight v. Germania Co., 84 N. Y. 493 ; Tilton v. Beecher, 59 Ib. 176; People v. Tweed, 63 Ib. 194. The inconvenience of furnishing the information is no answer to the application. Inability to' furnish it may form a complete answer. 2 Am. and Eng. Enc. of Law, 247 ; Chandler v. Stevens, 2 Month. L. Bul. 5. To this phase of the question we must give our attention. The plaintiffs are seeking information concerning transactions between the Rubber Company on the one hand and Carpenter and Lockwood on the other. It is fair to assume that while those transactions continued, the Rubber Company had no anticipation that the information now sought would be required. That they kept 'their accounts in a general way, crediting each consign [469] ment as it came in and charging Carpenter and Lockwood with the advances as they were from time to time made. Ordinarily that system of bookkeeping would suffice. The Rubber Company kept on making advances as goods came in, taking care at all times, that the security exceeded the sums advanced. This system would not require a separate entry for each consignment, nor an entry of a specific advance thereon. The Rubber Company, by the affidavit of its treasurer, proves this, in effect, when he swears that “ he is utterly unable to furnish any particulars in the matter further than he has already furnished; that he has made a thorough examination of his books but he is not able to add anything to what the bills of particulars already served contain.” If the Rubber Company cannot give a more particularized bill than it has already given, it is certainly not in furtherance of justice to strike, out its defence, and refuse it a hearing when the action is called for trial. The law never requires a party to do an impossible thing under the penalty of being denied a hearing in defence of its right to liberty or property. Lex non eogit ad impossibilia. In Wigand v. DeJonge, 18 Hun, 405, the court held, that “ if it appears that the parties from whom further particulars are asked are not in a situation to answer the demand, and do not possess the facts, then, indeed, is presented a plain case for a refusal of the order.” This is as it should be. See Broom's Legal Maxims, 242. Suppose a merchant loses his books by fire, larceny or other cause, is he to be denied his day in court because he cannot particularize his account ? Certainly not. Nor is he to b.e so deprived because his system of bookkeeping does not enable him to divide up his accounts to suit contingencies he never expected to meet. An illiterate man who keeps accounts according to a method of his own is not to be deprived of justice because his system does not enable him to give an ac [470] count with the accuracy or particularity a skilled bookkeeper might have given if he had had charge of • the business. In all these cases the explanation is to go to the jury, and in the light of their best judgment they are to determine the facts with reference to their inherent probability or improbability, in view of the. situation of the party, his systems and methods. The Eubber Company proves that it cannot give- the additional information required, and there is no evidence to the contrary. Under such circumstances a proper case was presented for denying the plaintiffs’ application. To sustain the order appealed from means that the defendant’s answer is to be stricken out,, and that it must lose its advances amounting to $2,452.65, simply because it did not keep books or accounts to meet a contingency it.was under no obligation to expect. It will not do to say that if the defendant cannot give the information now it cannot furnish it on the trial, atid that it might as well be defeated now as then. The Eubber Company may be able to prove by Carpenter and Lockwood, or by their books or bookkeeper, all that is necessary to prove in defence. The law gives it the privilege of compelling Carpenter and Lockwood and their bookkeeper to appear, and of requiring them to produce their books in aid of the Eubber Company’s defence. We cannot hold in advance how far this evidence may go or what it will prove. These things should be ascertained at the trial, which is a constitutional right, and not upon mere motion in advance of it. The defendant may have no means of securing this information or evidence except at the trial, and he is not to be deprived of the opportunity of obtaining it. Bills of particulars may be ordered to aid the administration of justice, but never where • the direction may tend to defeat, jeopardize or impair it. A bill of particulars is not matter of right, is a mere creature of the court, and is no part of the record. [471] Blunt v. Cook, 4 Man. and Gran. 458. The court must exercise a wise discretion in granting or withholding it. This appeal is a continuation of the motion in the same court, and we are called upon to adopt the discretion of the special term judge or to reject it and substitute our owm In the analogous proceeding to compel the adverse party to exhibit a document or serve a copy, it is a complete answer to the motion that the-party is unable to do either. 4 Abb. Pr. 233; Ib. 41; 8 How. Pr. 89 ; 1 Duer, 652 ; 25 How. Pr. 522; 1 Robt. 681; 16 Abb. Pr. 1; 20 W. Dig. 85. A bill of particulars is a mere amplification of the pleadings, intended to furnish facts, not evidence. If the pleading is sufficient on its face to entitle the party to a trial, he cannot be deprived of it, simply because he does not particularize the facts to suit the pleasure of his adversary, if the refusal to do so be not capricious, but real, resulting from positive inability, and not from contumacy. " It will not do to say that the defendant ought to have prepared itself for the present condition of things. The more appropriate question to ask is whether it is prepared for the emergency. The court must act on things as they are, and not as they ought to be, or as the plaintiffs would like to have them. For these reasons, and on the ground of the inability of the defendant to give the information required, the order appealed from must be reversed, and the application for a further bill of particulars denied, with costs to the appellant to abide the event. Sedgwick, Ch. J., and Freedman, J., concurred.