67 Minn. 410 | Minn. | 1897
The court below, upon the trial of this action, sustained objections made to questions propounded by plaintiff’s counsel to his witnesses, and excluded testimony tending to prove plaintiff’s cause of action upon the ground that the latter had refused to-“furnish a bill of particulars of the amounts alleged to have been converted,” a demand for such, bill having been made under the provisions of G. S. 1894, § 5246; and the only question is as to the correctness of these rulings. We are clearly of the opinion that the court erred.
Section 5246 first appeared in this jurisdiction as Rev. St. 1851, c. 70, § 74. It was taken bodily from the New York Code,
It had not then been construed in New York, but in 1874, in Dowdney v. Volkening, 37 N. Y. Super. Ct. 313, it was held that it was to be presumed that the codifiers intended to confine the meaning of the word “account” in the section in question to the class of cases in which it was theretofore most used, as well as most necessary
In the complaint herein it was alleged that a third party had paid money to defendant for plaintiff’s use and benefit, which defendant has refused to pay over on demand. In fact, the action was for conversion. Counsel for plaintiff calls attention to a construction of (his statute in New York soon after the adoption of the Code, to the effect that whether a party in default shall be precluded from giving evidence of his account depends upon an order previously obtained upon motion. This construction was adopted because of a seeming necessity therefor in order to avoid surprise, upon the trial of an action, to the party claimed to be in default. Gebhard v. Parker, 120 N. Y. 33, 23 N. E. 982. But, whatever merit the rule may have, the practice is well settled here. Advantage of the default is taken upon the trial by objection to proof of the account. Tuttle v. Wilson, 42 Minn. 233, 44 N. W. 10; Henry v. Bruns, 43 Minn. 295, 45 N. W. 444.
Order reversed.
2 Rev. St. (1852) part III., c. IV., pt. 2, e. 5, § 158 (p. 519).