7 Cow. 316 | N.Y. Sup. Ct. | 1827
The paintiff declared on a promissory note, and added the general counts. Plea, the general issue, and notice. A few days before the trial, the plaintiff’s attorney wrote-to the defendant’s attorney, and among other, things, the letter contained the following: “ You wrote me for a bill of particulars. We claim,only for the note set forth in our declaration. We do not claim anything, at present, for packet-boat stock.” At the trial, the plaintiff gave-in evidence the note declared on. _ ■ defense was usury; to establish which, the defendant gave in-evidence an account and a note for $130 given, to plaintiff by the defendant and one Bice. The ^evidence, to make out the fact, was submitted to the jury. By their finding, it appears, they were satisfied that usury was proved. I think the evidence sufficient to warrant that conclusion.
After the defendant had gone through with his proof of usury, the plaintiff offered the original note and account in evidence,"to support the common counts. This was ob
The questions are, 1. Whether the letter contained a bill of particulars; 2. If it did, whether the note of Allen and Eice was admissible evidence.
There was no order for a bill of particulars; but it was given voluntarily on request. It cannot be permitted to the plaintiff to say, that the specification given, is not equally binding, as a bill obtained in pursuance of a judge’s order. Such arrangements are to be encouraged; and good faith requires that they be carried into effect.
It is, however to be observed, that the note o’f Allen and Eice was introduced by the defendant, as part of the evidence to establish the fact of usury in the note declared on. If, then, the defendant, in showing usury in the note given by him individually, has produced evidence, by which it appears the plaintiff is entitled to recover for items not included in his bill of particulars, he should retain the verdict for such items.
*The rule is correctly laid down in 1 Campb. 68, and 2 Archb. 199, that although the plaintiff, after delivering a particular of his demand, cannot; himself, at the trial, give evidence out of it; yet if the defendant’s evidence shows that* there are other items, which the plaintiff might have included in his demand, he is entitled to recover all that
New trial denied.
The plaintiff’s bill of particulars is considered as a part or amplification of the declaration; Fleurot v. Durand, 14 John. Rep. 329; Brittingham v. Stevens, 1 Hall’s Rep. N. Y. S. C. 379; so that if not delivered pursuant to an order, a motion for non pros will lie. Fleurot v. Durand, 14 John. Rep. 329. So, when it comes from the defendant, it is held a part of his notice of set-off; and unless delivered within a certain time specified, the notice itself is shut out by the order. Viewed in this light, it need not state the credit side of the account; because pleadings do not state matters of defense or answer to themselves; and another reason is that the opposite party must know what sums he has paid, as well as the party giving the bill Ryckman v. Haight, 15 John. Rep. 222; Whaley v. Banks and Pemberton v. Bellington, Mann. Dig. Practice, B. (6,) S. P. But see Mitchell v. Wright, 1 Esp. 230, and Addington v. Appleton, 2 Camp. 410, e contra. Nor is it necessary to state in the bill any matter of mere defense, answer or rebuttal to the claim of the other party. H. g. money paid on an order drawn by the defendant, is admissible, in answer to the defendant’s demand, though the plaintiff’s particular do not mention it. Brown v. Denison, 2 Wend. 593. In this case, the plaintiff, it is true, charged the money, in the form of an account ; and as such the referees rejected it, because not in the particular; but Savage, 0. J., said, “ The account offered was not for the purpose of making out the plaintiff’s case in the first instance, but to rebut evidence produced by the defendants.” Id. 595.
A bill is always “ considered sufficient, if it fairly apprise the opposite party of the nature of the claim, so that there can be no surprise.” Per Savage, C. J., in Brown v. Williams, 4 Wend. 360, 368, 369; and see Smith v. Hicks, 5 Wend. 48. This is the cardinal object. Form is altogether overlooked. A voluntary letter from the plaintiff’s attorney, in answer to a letter of the defendant’s attorney requesting a bill, that “ the suit is on the note declared upon;” (Williams v. Allen, 7 Cowen’s Rep. 316;) or a bill under an order, referring to an account before delivered, (Hatchet v. Marshal, 1 Peak. N. P. Cas. 171; James v. Goodrich, 1 Wend. 289,) is sufficient. Dates should be given with as much particularity as possible, with regard to which the judge will require greater or less strictness, in his discretion, on summons for amending the bill. Humphrey v. Cottleyou, 4 Cowen, 54; Quin v. Astor, 2 Wend. 577; and see Newton v. Verbeke, 3 Cowen & Hill’s Notes to Ph. on Ev. p. 337 n. Though in point of variance on trial, much greater differences than those of mere days or months have been disregarded, yet in this respect the variance ought not to be such as to mislead. Where the plaintiff’s bill was for various items of labor, under date of April 20, 1821, and he offered proof of labor at sundry times in 1817-18-19, the N. Y. S. C., held that he must be confined to the year, and on error the decision was holden right. Quin v. Astor, 2 Wend. 577. The particular should give as much information as a special declaration; omitting the formal or technical parts. The court, per Parker, C. J., in Babcock v. Thompson, 3 Pick. 448. Where the
Yet in respect to'variance, these - bills' are regarded with a spirit very favorable to'letting in "every claim under them; which can be covered by any possible construction of their language. This we have, in part, seen already; and it is farther" evinced by a series of cases.
Thus in an action by the assignees of a bankrupt, the "declaration stated the" cause 'of action to he money had and received to thé use of the bankrupt; the particiilar of demand, incorrectly described it; as had and received to the use of the plaintiffs. This was held not to 'be a'fatal variance; it not appearing tha! the defendant could be misled. Tucker et al. v. Barrow, 1 Mood. & Malk. 137. So the omitting of á letter used between the Christian" and sir-name in the title of the causé; for the law knows of but one name; (Rosevelt v. Gardinier, 2 Cowen’s Rep. 463;) statingithe indorsement of a note as in blank, whitih was’filled up on the trial;. (Norris v. Badger, 6 Cowen’s Rep. 449;) oné of two joint debtors being'sued aloné; and lie omitting to plead in
See N. Y. Code of 1851, s. 158; Monell’s Pr. 526, et seq.