Williams v. Allen , 7 Cow. 316 ( 1827 )

Curia, per Woodworth, J.

The paintiff declared on a promissory note, and added the general counts. Plea, the general issue, and notice. A few days before the trial, the plaintiff’s attorney wrote-to the defendant’s attorney, and among other, things, the letter contained the following: “ You wrote me for a bill of particulars. We claim,only for the note set forth in our declaration. We do not claim anything, at present, for packet-boat stock.” At the trial, the plaintiff gave-in evidence the note declared on. _ ■ defense was usury; to establish which, the defendant gave in-evidence an account and a note for $130 given, to plaintiff by the defendant and one Bice. The ^evidence, to make out the fact, was submitted to the jury. By their finding, it appears, they were satisfied that usury was proved. I think the evidence sufficient to warrant that conclusion.

After the defendant had gone through with his proof of usury, the plaintiff offered the original note and account in evidence,"to support the common counts. This was objected to on the ground that the plaintiff was confined to his bill of particulars, contained in the letter. The judge decided that the letter did not amount to a bill of particuThe plaintiff then gave the account and a note in evidence. The defendant objected that the note was between different parties; and was not competent evidence under the money counts, against the defendant alone. There was due on the note and account, $149 06. The ■ judge admitted the evidence, and charged the jury, that if they were of opinion that usury was proven in the note declared on, they must find for the plaintiff, under the common counts, $149 06, being the balance of the account and the note of Allen and Eice. The jury found a verdict for the last sum.

The questions are, 1. Whether the letter contained a bill of particulars; 2. If it did, whether the note of Allen and Eice was admissible evidence.

There was no order for a bill of particulars; but it was given voluntarily on request. It cannot be permitted to the plaintiff to say, that the specification given, is not equally binding, as a bill obtained in pursuance of a judge’s order. Such arrangements are to be encouraged; and good faith requires that they be carried into effect.

It is, however to be observed, that the note o’f Allen and Eice was introduced by the defendant, as part of the evidence to establish the fact of usury in the note declared on. If, then, the defendant, in showing usury in the note given by him individually, has produced evidence, by which it appears the plaintiff is entitled to recover for items not included in his bill of particulars, he should retain the verdict for such items.

*The rule is correctly laid down in 1 Campb. 68, and 2 Archb. 199, that although the plaintiff, after delivering a particular of his demand, cannot; himself, at the trial, give evidence out of it; yet if the defendant’s evidence shows that* there are other items, which the plaintiff might have included in his demand, he is entitled to recover all that appears to be due to him. The objection, then, arising from the hill of particulars cannot be supported. ^[1]

As to the noté of Allen and Bice, it was proper evidence under the money counts, unless a'joint note given by two nérsons. is inadmissible in an netinn floraina! nne fllt.brmrrb no plea in abatement - has been' interposed'. The law is well settled, that where there are several persons jointly indebted, or jointly responsible, and all of them are'not made defendants, this must be pleaded in abatement; and cannot b’e taken " advantage of at the trial. (2 John. Cas. 382; 1 Chit. Pl. 29.) Perhaps it may be said, that, in this manner, a defendant may be entrapped. To this the answer is, that by vigilance, the defendant might have guarded against surprise. Where the plaintiff declares in several counts, and the defendant wishes to guard against giving evidence of a joint contract, he may obtain a bill of particulars before he pleads; and if- a joint contract is alleged in the bill, he may plead in abatement. -If he omits to do this- in season, it is his own neglect that enables the plaintiff to charge the defendant on a joint demand, or if, as m the present case, the joint contract is given m evidence ^ ^ defendant, it becomes available to the plaintiff, notwithstanding the bill of particulars; and consequently he has 'no cause of complaint. The motion for a new trial must be denied.

New trial denied.

[1] The plaintiff’s bill of particulars is considered as a part or amplification of the declaration; Fleurot v. Durand, 14 John. Rep. 329; Brittingham v. Stevens, 1 Hall’s Rep. N. Y. S. C. 379; so that if not delivered pursuant to an order, a motion for non pros will lie. Fleurot v. Durand, 14 John. Rep. 329. So, when it comes from the defendant, it is held a part of his notice of set-off; and unless delivered within a certain time specified, the notice itself is shut out by the order. Viewed in this light, it need not state the credit side of the account; because pleadings do not state matters of defense or answer to themselves; and another reason is that the opposite party must know what sums he has paid, as well as the party giving the bill Ryckman v. Haight, 15 John. Rep. 222; Whaley v. Banks and Pemberton v. Bellington, Mann. Dig. Practice, B. (6,) S. P. But see Mitchell v. Wright, 1 Esp. 230, and Addington v. Appleton, 2 Camp. 410, e contra. Nor is it necessary to state in the bill any matter of mere defense, answer or rebuttal to the claim of the other party. H. g. money paid on an order drawn by the defendant, is admissible, in answer to the defendant’s demand, though the plaintiff’s particular do not mention it. Brown v. Denison, 2 Wend. 593. In this case, the plaintiff, it is true, charged the money, in the form of an account ; and as such the referees rejected it, because not in the particular; but Savage, 0. J., said, “ The account offered was not for the purpose of making out the plaintiff’s case in the first instance, but to rebut evidence produced by the defendants.” Id. 595.

A bill is always “ considered sufficient, if it fairly apprise the opposite party of the nature of the claim, so that there can be no surprise.” Per Savage, C. J., in Brown v. Williams, 4 Wend. 360, 368, 369; and see Smith v. Hicks, 5 Wend. 48. This is the cardinal object. Form is altogether overlooked. A voluntary letter from the plaintiff’s attorney, in answer to a letter of the defendant’s attorney requesting a bill, that “ the suit is on the note declared upon;” (Williams v. Allen, 7 Cowen’s Rep. 316;) or a bill under an order, referring to an account before delivered, (Hatchet v. Marshal, 1 Peak. N. P. Cas. 171; James v. Goodrich, 1 Wend. 289,) is sufficient. Dates should be given with as much particularity as possible, with regard to which the judge will require greater or less strictness, in his discretion, on summons for amending the bill. Humphrey v. Cottleyou, 4 Cowen, 54; Quin v. Astor, 2 Wend. 577; and see Newton v. Verbeke, 3 Cowen & Hill’s Notes to Ph. on Ev. p. 337 n. Though in point of variance on trial, much greater differences than those of mere days or months have been disregarded, yet in this respect the variance ought not to be such as to mislead. Where the plaintiff’s bill was for various items of labor, under date of April 20, 1821, and he offered proof of labor at sundry times in 1817-18-19, the N. Y. S. C., held that he must be confined to the year, and on error the decision was holden right. Quin v. Astor, 2 Wend. 577. The particular should give as much information as a special declaration; omitting the formal or technical parts. The court, per Parker, C. J., in Babcock v. Thompson, 3 Pick. 448. Where the plaint®’declared in one'’count specially, • inserting'a general count which would also einbrace’ the matter of the" first'count,' and in his' particular referred!» the first count as containing the sole ground of the action; though the proof varied from the first count; yet held'it might be received under the general one, and that, too, upon-this bill'of particulars: So that a "special count may he good as a' particular, though bad as a count; for ye't the defendant may not be misled. Hess v. Fox, 10 Wend. 436. This may be'made still rñore plain -by an English case. Where the "particular specified-a bill for £60; bearing date oti-a certain day, and the evidence was of a'bill for £63, dated on a- different day, in the same year and ■ month, Abbot,' J.,- held the variance to be immaterial, as not being calculated to mislead. Dunn v. Thomas, Mann. Dig. Practice, B. (c) pl. 17, p. 299 of the Am. ed. This wóuld'havébe'en'clearly a'fatal variance-in a'count.1 Bút where the declaration was'for money had and received, and the particular for “ one $1000 bank hill, hank not" recollected, $1000; two $500 bills'"of the'Union Bank, $1000; two checks upon Boston banks amounting to $250'; bank hills" ciirrent in the commonwealth amounting to $500 ;” and at the trial the plaintiff proceeded for" money fraudulently won at gaming With cards,' the judge directed a nonsuit. Babcock v. Thompson, 3 Pick. 446. The court said," “Telling the defendant that the action was for hank bills, gave him no information that would aid him in making his defense. Ib. 443. Yet, according to the English and New York practice," a mere defect'or insufficiency is left to the correction of a" judge’s order, upon summons; and cannot be objected at the trial There the objection usually sounds in a'variance, which misleads.' Accordingly it was held in Maryland, that Where the plaintiff, in' his bill of particulars, alleges"that'money was had and received in a particular manner or on a particular ground or consideration; op the trial he cannot resort, in evidencé; to any other manner, grbúnd or consideration. De Sobry v. De Laistre, 2 Har. & John. 191, 221, 222, 223.

Yet in respect to'variance, these - bills' are regarded with a spirit very favorable to'letting in "every claim under them; which can be covered by any possible construction of their language. This we have, in part, seen already; and it is farther" evinced by a series of cases.

Thus in an action by the assignees of a bankrupt, the "declaration stated the" cause 'of action to he money had and received to thé use of the bankrupt; the particiilar of demand, incorrectly described it; as had and received to the use of the plaintiffs. This was held not to 'be a'fatal variance; it not appearing tha! the defendant could be misled. Tucker et al. v. Barrow, 1 Mood. & Malk. 137. So the omitting of á letter used between the Christian" and sir-name in the title of the causé; for the law knows of but one name; (Rosevelt v. Gardinier, 2 Cowen’s Rep. 463;) statingithe indorsement of a note as in blank, whitih was’filled up on the trial;. (Norris v. Badger, 6 Cowen’s Rep. 449;) oné of two joint debtors being'sued aloné; and lie omitting to plead in abátément, the bill being entitled and the charges made as against him alone; (Gay v. Gary, 9 Cowen’s Rep. 44;) where the notes were described as bearing interest from, the date, though they did not, the bill giving a correct description in other respects; (McNair v. Gilbert, 3 Wend. 344;) where the bill stated that the action was for money received from D., on" a note drawn by E., for §300, dated, &c. payable to D., indorsed by D., then by the plaintiff, and then by. the defendant, on which defendant received §300 from D., and the same sum, &c., from the plaintiff; and proof, that what the defendant received of D. was not cash, but specific articles to an uncertain amount, and the whole note was released to "35. by the defendant, who after-wards, as last indorsee, demanded and received the same sum of the plaintiff; for the defendant wasinformed by this bill, that the money which the plaintiff had paid was sought to be recovered back; and though the bill spoke of $300 paid by D., still, if the transaction amounted in la w to a payment, or discharge, or release of that sum, there could have been no surprise; (Brown v. Williams, 4 Wend. 360, 368, 369;) where the bill stated the foundation of the claim truly, but specified the amount (being money-had and received) at $605 63, whereas the proof was of $644 45 ; (Smith v. Hicks, 5 Wend. Rep. 48;) where there was a misdescription of the defendants as belonging to the Pilot line, the evidence being that they belonged to a different company, other matters-appearing in the bill sufficient to apprise the defendants of the particulars sought to be recovered so that they could not be misled; (Benson v. Brown, 10 Wend. 258;) and"where an insurance' broker’s claim was-for services,- in-effecting for the defendants a policy of insurance, the broker covenanting to pay the premium; the declaration being for work and labor and divers premiums; and the'particular'simply “for insurance.’’ Power v. Butcher, 10 Barn. & Cress. 329. A particular for" money paid is supported by proof" of a payment in land, or' other thing equivalent to money. (Bonney v. Seely 2 Wend. 481. See Ainslee v. Wilson, 7 Cowen’s Rep. 668; and Randall v. Rich, 11 Mass. Rep. 498, S. P.)

See N. Y. Code of 1851, s. 158; Monell’s Pr. 526, et seq.