1. TORT: action founded upon: bill of particulars. -The motion was made, and the appellant insists should have been sustained, under section 2713 of the Code, This section provides: “If a pleading is founded on an account, a bill of particulars thereof mrist pe incorporated in or attached to such pleading, verified as the pleading, and deemed a portion thereof, subject to be-made more specific on motion, and shall define and limit the proof', but may be amended as other pleadings. The items of such bill of particulars shall be consecutively numbered.” This section is limited, by its terms, to a pleading founded on an account. An account can exist only when there is a contract, express or implied. The plaintifPs action is not founded upon a contract, express oi implied, but upon a tort. It is no more an action upon an account than would be an action for slander, or for assault and battery. Section 2713 of the Code is not applicable to the present action. If the motion had been simply for a more specific statement as contemplated in section 2720 of the Code, it is possible that it should have been sustained. But it is conceded that the motion is based on section 2713, and it asks for more than section 2720 requires. There was, therefore, no error in overruling it.
