65 Ky. 221 | Ky. Ct. App. | 1867
delivered the opinion op the court:
As in a common law action of indebitatus assumpsit for goods, wares, and merchandise, the appellees, merchants in the city of Cincinnati, sued the appellant of the city of Lexington, by petition ordinary, conformably with our Code of Practice, for an alleged balance of $620 of a long account for “ merchandise,” without any specification of the articles sold. The petition was filed on the 21st of November, 1866, and exhibited that general account as the only basis of the action. Before answer or appearance, a long bill of particulars, occupying sev
On a subsequent day of the same term the appellant filed her affidavit, accounting for her non-appearance before judgment for reasons satisfactory to this court, and which, supported by other affidavits, seemed satisfactory to the circuit judge. And thereupon, she moved to set aside the judgment and to permit her to file an accompanying answer, denying that she was indebted on the account presented by the petition more than $500. But the court, considering the answer too general for an issue, overruled her motion. And so, if that judgment stand, the judgment for $620 also stands.
Piad the bill of particulars, instead of the general account, been filed as an exhibit with the petition, or been afterwards presented by an amended petition as a true specification of the articles of merchandise embraced in the account on which the action was founded, the rejected answer would have been fatally irresponsive in not- denying that the respondent had bought all or any of the articles charged at the prices charged, or in not alleging pai'tial payment, reducing the amount tacitly admitted to have been once due.
But the appellant was bound to answer only the petition as filed on the account annexed to it. The bill of particulars, which neither accompanied nor formed a part of the petition, was not to be answered, nor would necessarily, or probably even, have been seen by looking at the petition to see what was to be answered.
Then, considered as it was, in legal character and effect, a response to the petition as it was, the answer
We are of the opinion, therefore, that the circuit court ought to have set aside the judgment by default, and permitted the appellant to file her profiered answer, and thereupon substituted a judgment for the admitted $500.
On the return of the cause the appellees may amend their petition by exhibiting their bill of particulars as specific evidence of the indebtedness sued for; and then the appellant must answer more directly and specifically.
Judgment reversed, and cause remanded for further proceedings, admitting the rejected answer, and permitting an amended petition, which, if filed, must be also properly answered, and correcting the judgment for $620 by reducing it to $500.