108 Mass. 100 | Mass. | 1871
The practice act requires that, in an action of contract upon either of the common counts, a bill of particulars should be filed by the plaintiff, with the items numbered consecutively, and be deemed part of the record, and answered as such, and that the defendant should answer each item specifically. Gen. Sts. a. 129, §§ 10,18. By the same statute, the declaration and answer in every case, though not evidence for either party, are to be deemed allegations by which the party making them is bound. § 72.
This is an action upon an account annexed, which under our practice is one of the common counts. Stearns v. Washburn, 7 Gray, 187. The plaintiff, in the twenty-sixth item of his bill of particulars, admitted a credit of a certain sum in cash. The defendants in their answer expressly admitted that the several items of credit in the plaintiff’s bill of particulars were true. Such being the state of the pleadings, both parties were conclusively bound by their respective allegations, and neither could contradict what the one had thus asserted and the other admitted. Rundlett v. Weeber, 3 Gray, 263. Boston Acid Manufacturing Co. v. Moring, 15 Gray, 211. Walcott v. Kimball, 13 Allen, 460. The reference to the auditor was necessarily limited to the matters in issue between the parties, and no issue having been made as to the amount of this item, he had no authority to vary that amount. Gen. Sts. c. 121, § 46. Flint v. Hubbard, 1 Allen, 252. The ruling of the superior court was therefore correct.
If the plaintiff wished to reduce the credit as stated in his bill of particulars, he should have moved to amend. If an amendment had been moved for and allowed, the court might then have
Exceptions overruled,.
