Stocklen v. Barrett, 114 P. 108

Stocklen v. Barrett

114 P. 108 | Or. | 1911

Mr. Justice McBride

delivered the opinion of the court.

1. We think the court below erred in striking out or refusing to consider the testimony offered on behalf of plaintiff. The demand for a bill of particulars rests upon the same principles as a motion to make a pleading more definite and certain: Conover v. Knight, 84 Wis. 639 (54 N. W. 1002). In motions of that character a court will not require a party to be more definite in regard to matters concerning which he has no further knowledge: Cederson v. Oregon Nav. Co., 38 Or. 343, 358 (62 Pac. 637: 63 Pac. 763).

*2842. In the case at bar the bill furnished was more definite than the complaint, in that it showed the character of goods furnished which the complaint wholly failed to show. There was not an entire failure to comply, but a part compliance, and whether plaintiff should be required to furnish a further bill rested in the sound discretion of the court.

3. It would be a reproach upon the law and a sacrifice of justice to procedure if a party should be wholly debarred from giving evidence of his claim merely because through the misfortune of fire the particular items that went to make up the total had been destroyed. The better opinion is that, where a party shows that it is an impossibility for him to make a more specific statement, he will not be punished for a failure to comply with the demand by having his evidence excluded: Rossman v. Bock, 97 Mich. 430 (56 N. W. 777); Mosheim v. Pawn (City Ct.) 18 N. Y. Supp. 166; Wheelock v. Barney, 27 Ind. 462.

4. It was claimed by defendants, and apparently held by the court, that evidence on behalf of plaintiff that defendant M. E. Barrett had admitted that the balance due was $55.25 was incompetent. . While it is true that the evidence offered tended to prove an account stated, it was also admissible in this action for goods sold as an admission by defendants of the justice of plaintiff’s demand: Duffy v. Hickey, 63 Wis. 312 (23 N. W. 707); Bonnell v. Mawha, 37 N. J. Law 198; Theus & Marbury v. Jipson, 3 Willson, Civ. Cas. Ct. App. § 189.

Some claim is made by defendants’ counsel that the judgment entry shows that the court not only granted a nonsuit, but passed upon the merits of the testimony as well. But, while the record is not as clear on this subject as might be wished, we construe it to show that the court finally excluded all the testimony of plaintiff *285on the ground of his failure to furnish a bill of items, and thereupon granted a nonsuit.

The judgment will be reversed and the cause remanded, with instructions to grant a new trial. Reversed.