Smith v. Hicks

5 Wend. 48 | N.Y. Sup. Ct. | 1830

By the Court,

Savage, Ch. J.

The first question in this case is whether there was a material variance between the bill of particulars and the proof. The variance relied on, I presume, is this;, tire plaintiffs claim the half of $1211,26, when by the proof they are entitled to recover, if at all, the half of $1288,91.

A bill of particulars has been sometimes said to be an amplification of the declaration; its object is to apprize the opposite party of the nature of the action or defence. It has therefore been decided by this court that it need not be as special as a count upon a special contract; and if there are some variances between the bill and the proof, the plaintiff should not be nonsuited or the defendant’s defence excluded, provided there has been no surprize upon the opposite party. If the bill of particulars has apprized the other side of (he evidence which is to be offered, so that there can be no mistake as to the preparation to be made to resist the claim, the party furnishing the bill of particulars should not be prejudiced. In the case of Holland v. Hopkins, 2 Bos. & Pul. 243, the plaintiff’s bill of particulars was for horses sold and delivered to the defendant or his servants; the proof offered was for money which the defendant had received for horsessold by the defendant as agent of the plaintiff: this was held to be a variance, and the plaintiff was nonsuited. The court held the nonsuit right, but they set it aside, and allowed an amendment on payment of costs. Lord Eldon said that under such a c]lajo-e, the. defendant comes prepared to prove, that he owes nothing for horses purchased; but he thought it would have been sufficient for the bill of particulars to have stated that on, &c. the horses were sent to the defendant, and that the plaintiff demanded the value of them, or so much as they sold for. In Brown v. Hodgson, 4 Taunt 189, the bill of particulars was, “To 17 firkins of butter, ¿£55,6,” not saying for goods sold; the declaration was for goods sold and for money paid. From the circumstances shewn at the trial, the plaintiff could not recover as for goods sold, but could upon the count for money paid ; and the court held the bill of particulars sufficient. It is there said bills of particulars are not to be construed with all the strictness of declarations; this bill has no reference to any counts, and it sufficiently expresses to the defendant that the plaintiff’s claim arises on account of the butter. In Bonney v. Seely, 2 Wendell, 481, under a bill of particulars stating money paid, it was held the plaintiff might prove a payment in land, being money’s worth. In this case, the bill sufficiently informs the defendant that the claim is for half the amount paid by the plaintiff’s testator on account of the defendant’s being bail for Webster under the testator’s agreement. It would have been more correct to have claimed one half the amount received by the defendant, by way of reimbursement, for monies thus paid ; but as it is, I think the defendant could not have been surprized, and if the plaintiffs do not recover as much as they ought, the misfortune is theirs, and the defendant has no reason to complain on that account.

Upon the merits, the plaintiffs made out their case precisely as they did on the former trial; and upon that statement of facts, it has been adjudged by this court that they were entitled to recover. 2 Wendell, 202. In addition to the reasons there assigned, I would add, that by the arrangement between Smith and Hicks, each was to bear half the loss sustained by Hicks in consequence of his becoming bail for Webster. Suppose the defendant retains the whole, amount received by him according to the plaintiff’s testimony, so far from sustaining half the loss, he sustains no loss at all; he is fully reimbursed for all he ever advanced, but the estate represented by the plaintiffs sustains the whole loss. But for the special agreement between Smith and Hicks, I agree there would be no claim. In ordinary cases, where two persons sustain an equal loss as sureties for a third person, and one of them subsequently receives the whole amount paid by him, his co-surety has no claim upon him for any part of it.

Had this testimony stood uncontradicted, or had the jury believed it, they should have found a verdict for the defendant ; but it had been proved to them that on a former occasion both Griswold and the defendant had testified that the note of Imlay was given to settle the claim against Griswold for the defendant’s being bail for his partner Webster; that Imlay had arranged the security for him as special bail. To set aside a verdict as contrary to evidence, there should be a decided preponderance against the verdict; but there is no such preponderance in this case. For the defendant, Imlay and Griswold testified: Griswold had testified differently before the first judge on his own application for a discharge; and it appears from the report of the case in 2 Wendell, 202, that he testified differently on the former trial. There is then only the oath of Imlay against that of the defendant. There is therefore no preponderance, and a new trial should be denied.