36 A.2d 739 | Conn. | 1944
This appeal is taken from a judgment of nonsuit rendered upon the ground that the plaintiff had failed to comply in certain respects with an order for a more specific statement. The complaint alleged that the plaintiff, while manager of the defendant's plant, had advanced substantial sums to enable it to continue its operations, and in particular about $3700 for freight charges, about $525 for commissions to sales agents, about $2500 for pay roll payments, about $11,000 for raw materials and about $6000 for other necessary bills; and in a second count the plaintiff sought to recover about $3500 claimed due him for salary which had not been paid. The defendant made a motion for a more specific statement as to these items which was in part granted. The plaintiff filed a bill of particulars which, as later amended, complied in part with the order of the court. Items were set out in it which amounted to $3545.67 for freight charges, to $525 for commissions to sales agents to $2425 for advances for pay roll payments, and to $5368.48 for payments of other bills of the defendant. No specific statement was made as to the claim for raw materials or as to the amounts claimed to be due for salary. Because of the failure to file a specific statement as to these items and because the statement of bills paid, while giving the dates, the amounts due and the payees, did not state the purpose for which they were made, as required by the motion granted by the court, the trial court gave judgment of nonsuit.
Upon the face of the record, the situation is that, because the plaintiff has failed to file a specific statement as to certain general claims in his complaint *654
and has not fully complied with the order for the more specific statement as to another general claim, his action is thrown out of court, although he has well pleaded claimed items of indebtedness by the defendant to him amounting to almost $7000. The mere statement of this proposition is enough to suggest that the action of the trial court was wrong. It is axiomatic in modern pleading that, because a plaintiff cannot substantiate a separable part of the claim in his complaint, he is not to be barred of recovery as regards that portion of it he can establish. Where the failure to file a bill of particulars as ordered goes to the entire cause of action, a judgment of nonsuit may be proper. Gross v. Clark,
There is error, the judgment is set aside and the case is remanded to be proceeded with according to law.
In this opinion the other judges concurred.