Conover v. Knight

| Wis. | Apr 11, 1893

LyoN, C. J.

In his counterclaims the defendant alleges in general terms failure by plaintiffs to furnish detailed plans, specifications, and drawings for, and to superintend the erection of, his building, and- serious errors in the rough drawings furnished by plaintiffs which were used in the commencement of the construction of the building. It is pleaded as a defense in the answer that the plaintiffs’ estimates of the cost of the building were grossly erroneous, and that it actually cost twice the estimated sum; but this averment is not found in either counterclaim, and hence is of no importance on this appeal.

We are not disposed to draw any nice distinction between the functions of an order for a bill of particulars and an order requiring a pleading to be made more definite and certain, for we think such distinction has no tangible existence in reason or law. These counterclaims are expressed in terms as general as are the common money counts under the common-law practice, and a proper bill of particulars necessarily operates to make them more definite and certain. When, as here, the claim covers and includes numerous propositions of fact, which are asserted in the most general terms, a motion for a bill of particulars is, in substance and legal effect, necessarily a motion to make the pleading more definite and certain.

The defendant does not object to furnishing plaintiffs with itemized statements of the expense for labor and materials to which he has been subjected because of their breaches of duty and mistakes. We perceive no valid reason why he should not at the same time particularize the breaches of duty and mistakes complained of. This is what the order of the circuit court requires him to do. Thus far the order appealed from seems unobjectionable.

The order further requires defendant to furnish plaintiffs a detailed statement of the actual cost of the building. The complaint alleges, and it is admitted in one of the counterclaims, that the cost of the building was $120,000. No •view of the case is suggested to our minds which renders it essential to plaintiffs’ defense against the counterclaims that they should have anj7 such detailed statement. Whatever amount the cost of the building was increased by plaintiffs’ failure of duty and inexcusable mistakes is probably the measure of defendant’s damages on his counterclaims, and the elements or particulars of such increased cost will be sufficiently itemized in the further bill of particulars the defendant is required to furnish, without a “ detailed statement of the cost of the building.”

We conclude that, instead of denying the defendant’s motion to modify the order for a further bill of particulars, ■ the circuit court should have granted it in so far as it asked: the court to relieve the defendant from the above requirement, and should have affirmed the residue of such order, but without costs of motion to either party.

By the Court.— The portion of the order of the circuit court which in effect requires “ a detailed statement of the actual cost of the building” to be furnished plaintiffs, and that portion which imposes $10 costs upon the defendant, are reversed, and the residue of the order is affirmed. The circuit court will give the defendant a reasonable time in which to furnish such further bill of particulars in accordance with this opinion. No costs are allowed to either party, except the appellant must pay clerk’s fees.