Laws

I, 1873, and April 9 Post Date: Mon, 28 Jul 2008 22:27:08 +0000
An item of goods sold and delivered, which has been paid, is properly stricken out of a bill of particulars in which it has been improperly include d Hopkins v Stefan, 77 Wi S 45 2 i Tidd Pr 644, 645; Wager v Chew, 15 Pa St 338 I X CONSTRUCTIO N The bill of particulars, being a part of the pleading to which it relates, is generally construed in connection therewit H 1 X FAILURE TO FURNISH 1 Effect in General Time to Plea d Under the former practice a failure to furnish a bill of particulars when required by statute or order of court operated as a stay, and the adverse party was excused from pleading until it was fur- nishe d 2 It does not now generally so operate, unless by virtue of an express rule or order of court. 3 1 Connecticut Hoey v Hoey, 36 Con N 391; Guile v Brown, 38 Con N 240 Illinoi S McDonald v People, 126 111 150, 9 A M St Rep 547 Indiana Ward v Bateman, 34 Ind no; Noble v Burton, 38 Ind 206 A'ansa S Missouri Pac RCo v Morrow, 36 Ka N 495; Alma T P v Kast, 37 Ka N 433; Sun City Bank v Neff, 50 Ka N 506; High v Hill, 46 Ka N 96; Pate v Fitzhugh, 46 Ka N 129; Missouri Pac RCo v Henning, 48 Ka N 465 Michiga N Kelley v Waters, 31 Mich 404; Snell v Gregory, 37 Mich 500 New Hampshire Benedict v Swain, 43 N H 33; Saunders v Os- good, 46 N H 22; Rich v Flanders, 39 N H 305; Currier v Boston, etc, RCo, 31 N H 221 New York Scott v Haines, 3 Mis C Rep ( N Y City Ct) 153 United State S U S Bank v Ly- man, i Blatchf (U S) 292; Williams v Sinclair, 3 McLean (U S) 289 Applies to Common and Special Count S In the case of two counts for the same cause of action, one special and the other one of the common counts, a bill of particulars filed applies to bot H Columbia County v Branch, 31 Fla 62 Not a Special Contra Ct Where, on demand of defendant, the plaintiff furnished a bill of particulars to a declaration on the common counts, as follows: " To services by said A at the request of said B, being be- tween Sept. I, 1873, and April 9, 1875, in aiding to procure a compromise be- tween C and D," it was held that such bill did not set up a special contra Ct Attrill 7'.

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Anonymous, 16 N J Post Date: Mon, 28 Jul 2008 22:16:47 +0000
Patterson, 58 Md 226 Construction upon DemurreRIn an action of assumpsit, the declaration professed to contain the common money counts, and a count upon an account state d The defendant, with- out pleading to the declaration, de- manded a bill of particulars, which was furnished, and it showed that the plaintiff sought to recover back the excess of interest over and above, the legal rate which he had paid to the de- fendant on two several loan S The defendant then filed a general demur- rer to the declaratio N Held, that the effect of the bill of particulars was to show the plaintiff's entire cause of ac- tion under all the counts of his dec- laration, and the effect of the demur- rer interposed after the bill of particu- lars was filed was to admit the cause of action to be as therein stated, and to deny that it furnished any ground of action, thus fairly presenting the question whether usurious interest could be recovered back by the bor- rower in such form of actio N Scott v Leary, 34 Md 389 See, however, Lapham v Briggs, 27 Vt 26, to the point that a bill of particulars or specification of the plaintiff's demand under a general count is not to be re- garded as a part of the declaration for the purposes of the subsequent pleadings, but only as a limitation upon the plaintiff's proof Lapham v Briggs, 27 Vt 26 Applicable to Any Count. A specifica- tion (bill of particulars) is to advise the defendant of what he is to meet; and it is not iniportant that it be de- termined to which particular count the claim applie S Hicks v Cottrill, 25 Vt 80 2 Stevens v Green Hill Cemetery Co, 5 HarR(De L) 393; Whitall v Vaughn, 3 N J L 472; Roosevelt v Gardinier, 2 Co W ( N Y) 463; Davis v Hunt, 2 Bailey ( S Car) 416 Under this practice, it seems, the party had the same time to plead after receiving the bill of particulars that he had at the time of demanding it. Anonymous, 16 N J L 346 3 Vermont Academy v Landon, 2 Wen d ( N Y)62o; FlatTer Townsend, Precluding Evidenc e This failure may operate to preclude the intro- duction of evidence by the party in default concerning the ac- count or other subject-matter of his pleadin g 1 2 Remedy Non Pros, and Dismissa L An appropriate remedy is generally given by statute or rule of court in the form of a motion for judgment or non pros, or dismissal, if either party be in Default 2 Striking out Pleadin g Or, where a party fails to comply with an order to furnish a bill of particulars, the court may strike his pleading from the file S 3 X I RELATION OF BILL TO EVIDENCE 1 Restriction of Evidence A GENERALL Y The most general effect of a bill of particulars is to limit the demand and restrict the proof to the matters therein specifie d 4 Instances of the sufficiency or insufficiency of bills 5 Duer ( N Y) 668, 3 Abb Pr ( N Y) 9; Webster -v Schuyler, 6 Co W ( N Y) 595; Roberts v Poe, 10 M W 691, 14 L J Exc H 101; Wilson v Hunt, i Chit 647 Connecticut Rul e Under the Con- necticut Practice Act, Pt.

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2 Kimballz' Post Date: Mon, 28 Jul 2008 22:05:33 +0000
I I I, where the common counts are used by the plaintiff, the defendant is not required to plead until the plaintiff has filed a bill of particulars or a substituted complaint. The common counts can be used only in connection with a bill of particulars, and then only the count which is applicable to the cas e Atwood v Welton, 57 Con N 514 1 Gonigs v Patten, 17 Abb Pr ( N Y C P I) 339- Frequently by virtue of statut e See X I Relation of Bill to Evidence, infra . 2 Kimballz'.

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If no cause is shown Post Date: Mon, 28 Jul 2008 21:48:14 +0000
Kent, 3 111 217; Purdy v Warden, 18 Wen d ( N Y) 671 ; Stan- ley v Millard, 4 Hill ( N Y) 50; Rust v Rowe, i How Pr ( N Y)48; May v Richardson, 4 Co W ( N Y) 56 Furnishing Bill after Motion for Non Pro S After a regular notice of a motion for a non pros, in such case, if the plaintiff furnishes a bill it is a sufficient answer to the application, provided the costs are paid up to that time; otherwise not. Symonds v Craw, 5 Co W ( N Y) 279 Kule Nisi, etc An order for a bill of particulars should direct the plain- tiff to deliver one at a given day, or then show cause why he does not. If no cause is shown the order be- comes absolute, and the defendant may move for a non pros, unless a bill is delivere d Brewster v Sackett, i Co W ( N Y) 571; Fleurot v Durand, 14 John S ( N Y) 329 General and Special Count S A plain- tiff may be non pressed as to the gen- eral counts for not furnishing a bill, and allowed to proceed on his special count.

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" Adding the words " per Post Date: Mon, 28 Jul 2008 21:37:47 +0000
Symonds v Craw, 5 Co W ( N Y) 279 3 Wilson v Fowler, 44 Hun ( N Y) 89; Gross v Clark, 87 N Y 272 4 Connecticut Policy v Fray, 3 Con N 548 District of Columbi A Moses v Taylor, 6 Mackey ( d C) 255 Illinoi S McDonald v People, 126 111 150, 9 A M St Rep 547 Indiana Harding v Griffin, 7 Blackf (Ind) 462 Marylan d Hall v Sewell, 9 Gill (Md) 146 Massachusett S Jones v Ilsley, I Allen (Mas S) 273; Co M v Giles, i Gray (Mas S) 466; Co M v Davis, n Pic K (Mas S) 435; Smith v Kuby, 10 Met (Mas S) 150; Babcock v Thomp- son, 3 Pic K (Mas S) 446; Co M v Far- rell, 105 Mas S 189 Michiga N Bennett v Smith, 40 Mich 2ii ; Peterson v Tilden, 44 Mich 168; Ritter v Daniels, 47 Mich 617 Minnesota Lonsdale v Oltman (Min N, 1892), 52 N W Rep 131; Henry v Bluns, 43 Min N 295 Mississipp I Jennings v Thomas, 13 Smed M (Mis S) 617 New York Gross v Clark, I Civ Pro Rep ( N Y Ct App) 464; Kreiss v Seligman, 8 Barb ( N Y)43g; Drake v Thayer, 5 Robt ( N Y) 694; Wait v Borne, 123 N Y 592; Enright v, Seymour ( C P I), 8 N Y St Rep 356; of particulars, whereby proof was admitted or excluded and the demands were allowed or restricted, are given in the note S 1 Starkweather v Kittle, 17 Wen d ( N Y) 20; Bowman v Earle, 3 Duer ( N Y)6gi; Melvin v Wood, 4 Abb Pr, N S ( N Y Ct of App) 438; Mat- thews v Hubbard, 47 N Y 428 Ohio Austin v Hayden, 6 Ohio 388 United State S U S Bank v Ly- man, i Blatchf (U S) 297; Williams v Sinclair, 3 McLean (U S) 289 1 Bills of Particulars Sufficient and Evidence Submitted Entirety of Con- tra Ct In an action upon an entire contract the items may be specified in a bill of particulars, and the plain- tiff is not thereby estopped to show entiret Y Hall v Wood, 9 Gray (Mas S) 60 Contract within Statute of Fraud S Where the plaintiff declares in as- sumpsit and afterwards files a bill of particulars praying the recovery of money paid on land contracts with- out consideration, alleging that de- fendant had no title to convey, he may prove such contracts void for -want of due execution under the stat- ute of frauds, when the defendant does not claim that such evidence would be a surprise to him or that he would be unprepared to meet it. Wright v Dickinson, 67 Mich 580, ii A M St Rep 602 Disbursement S Under an item for cash advanced, disbursements have been held recoverabl e Green's New Pr 514; I Moore S 536 Parol Proof under Specification of Document S If a bill of particulars merely specifies documentary evi- dence, including A's will, on which a party relies, he is not restricted to a title by devise, but may prove by parol a title by descent, although if he specifies a title by devise he cannot do So Graham v Whitely, 26 N J L New Proof on Second Tria L Where a bill of particulars is filed by the plaintiff, the defendant cannot be heard to say that he is surprised that evidence was offered to sustain any- thing embraced in such bill, even though on a former trial of the cause no such evidence was offere d Rock- ford, etc, RCo v Rose, 72 111 183; Kennedy v Gooding, 7 Gray (Mas S) 417 Subsequent Fact S In a suit charg- ing certain physicians with conspiracy in putting the plaintiff in an insane asylum, a bill of particulars of the plaintiff's actions, conduct, and hab- its, upon which defendants had based their opinion, was called foRIt was held that evidence of matters justify- ing their opinion, but occurring after the incarceration and therefore not in the bill, could not be exclude d Higenbotam v Green, 25 Hun ( N Y) 214 Money Obtained by Frau d In an action to recover back money paid under a contract alleged to have been obtained by fraud, the plaintiff will not be precluded from showing such fraud, as establishing a right to re- scind and reclaim the money, merely because he has furnished a bill of particulars of his claim, which states the said payments ($5250 in all) and their dates, and describes them as so much money received by defendant on account of stock which defendant never delivered to the plaintiff; and also claims the further sum of $5250, being the proceeds of 250 shares of stock of the Staten Island Associa- tion, sold by the defendant on ac- count of the plaintiff, on the first day of November, 1836, with interest, etc Seaman v Low, 4 Bosw ( N Y) 337 One Charge for Several Item S Un- der one item of charge, as follows, "To goods sold, materials found, and work done," one matter of charge may be prove d Jones v Ilsley, i Allen (Mas S) 273 Evidence in Rebutta L And though no charge of money paid is inserted in the bill, yet the plaintiff may prove money paid by way of rebutting evi- dence produced by the Defendant Brown v Denison, 2 Wen d ( N Y) ''Per Agreement." Adding the words " per agreement" to the items of the charge does not, however, limit the plaintiff to the recovery on an agreement for a specific su M Robin- son v Weil, 45 N Y 810 IntereSt And a bill stating that certain notes were with interest did not prevent a recovery upon notes proved to be due without intereSt McNair v Gilbert, 3 Wen d ( N Y) 344 The numerous cases on this subject all tend to establish the doc- trine that where the bill of particulars has not misled the opposite party he cannot take advantage of it to exclude the offered proof 1 Description of Not e A bill of par- ticulars describing a joint and several note, made by the plaintiff and an- other person, as a note made by the plaintiff, is sufficient to entitle the de- fendant to give the note in evidence under notice of set-off Standish v Chandler, 23 Wen d ( N Y) 511 Quantum Meruit.

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4 b BY ORDER Post Date: Mon, 28 Jul 2008 21:17:55 +0000
Where the de- fendant comes to trial, in an action of quantum meruit, prepared to con- test the value of work, plaintiff is not limited to compensation as set forth in a bill of particular S Dubois v Delaware, etc, Canal Co, 12 Wen d ( N Y) 334, 15 Wen d ( N Y) 87 Money Paid Land Conveye d Un- der a bill of particulars claiming to recover for money paid, evidence that the plaintiff has paid a debt of the defendant for which he was re- sponsible, by the conveyance of land accepted in satisfaction of the debt, is admissibl e Bonney v Seely, 2 Wen d ( N Y) 482 Bill of Particulars Insufficient and Eri- dence Excluded Reference to Account not File d If a declaration refers, for a description of the charges sued for, to an account filed, when none is filed, the plaintiff cannot recoveRTurner v Jenkins, iHar g (Md) 161 Money Had and Receive d Where there were counts in assumpsit for the price of certain horses sold, and also for money had and received, the bill of particulars comprised claims for a balance of an account stated and for the price of horses sold and deliv- ere d The plaintiff sought to intro- duce evidence of a sale by the defend- ant as agent for the plaintiff under the count for money had and receive d It was held that the plaintiff had limited his claim by the bill of par- ticulars, which was not sufficiently broad to let in the evidenc e Holland v Hopkins, 2B p 243 Overpayment of Legacy as Cash Pai d Under a general charge of cash to a certain amount, the defend- ant will not be permitted to prove that, in the capacity of executor, he had overpaid the plaintiff a legacy left him by the defendant's testatoRHarding v Griffin, 7 Blackf (Ind) 462 "Money Advance d" A bill of par- ticulars for " money advanced " re- stricts the plaintiff to proof of a technical loan of mone Y Stein- man v Slaymaker, i W N C (Pa) 132 "Money" Loane d It is not admis- sible, under a charge in a bill for money loaned to the defendant, to give in evidence the loan of a United States bond; such a charge can be supported only by proof of a loan of coin, bank bills, or some well-known circulating medium popularly known and designated as mone Y Water- man v Waterman, 34 Mich 490 Entire Charge Several Item S Un- der an account annexed of a single item, "To amount due on account, $7500," various smaller sums and items of book accounts could not be prove N McQuesten v Young, 19 N H 307 Work before Time Specifie d Evi- dence of work done before a certain year was held to be inadmissible un- der a bill specifying it to have been done in April of that yeaRQuin v Astor, 2 Wen d ( N Y)577 See XII I Specific Actions, infr A Nature of Indebtedness Electio N If the plaintiff in an action of assumpsit files an account in court containing the items of his claim against the de- fendant, he is precluded from going into evidence to establish his claim, in a matter different from that in which he has elected by his account to con- sider the defendant his debtoRDe Sobry v De Laistre, 2Har J (Md) 223 Fraud in Criminal Prosecutions can- not be proved by evidence not within the scope of a bill of particulars fur- nishe d McDonald v People, 126 111 150, 9 A M St Rep 547 1 Seaman v Low, 4 Bosw ( N Y) 345; Hoag v Weston, 10 Civ Pro Rep ( N Y Supreme Ct) 92, 24 Wkl Y Di g 91; Bonney v Seely, 2 Wen d ( N Y) 481; McNair v Gilbert, 3 Wen d ( N Y) 344; Smith v Hicks, 5 Wen d ( N Y) 48; Hess v Fox, 10 Wen d ( N Y) 436; Duncan v Ray, 19 Wen d ( N Y) 530; Jackson v Reich, 3 Mis C Rep ( N Y C P I) 86, 20 N Y Supp 652; Moline Water Bill not Demande d It is also a well-settled rule that evidence will not be excluded for want of a bill of particulars where no bill has been demanded, nor a demurrer to the declaration taken in seaso N 1 Generality of Pleading Waive d Where a pleading is general in its nature, and the adverse party demands and receives a bill of par- ticulars, he cannot object to the admission of evidence there- undeR2 Collateral MatTer A bill of particulars does not exclude matter collateral to the main issue, and not stated therein, if such matter becomes relevant. 3 Evidence of Adversar Y A party may claim all that is revealed by the evidence of his adversary, notwithstanding the bill of par- ticulars of the former is silent thereon or is not broad enough to cover it. 4 b BY ORDER OF COURT.

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Where the defendant filed Post Date: Mon, 28 Jul 2008 21:06:11 +0000
Under the code provision that the party failing, upon proper demand, to furnish a bill of particulars shall be precluded from giving evidence of the account, the better practice seems to be to procure an order of court, prior to the trial, excluding such evidence in behalf of a party thus in Default 5 2 Bill as Evidence per s e The bill of particulars is evidence against the party furnishing it whenever the pleading to which it is a part would be such, and not otherwis e 6 When so used it A party is not bound or restricted in his evidence by bare mistakes which do not mislead his adversary, such as mistakes in carrying out the rate or pric e Ames v Quimby, 106 U S 342 He may even recover an amount greater than that stated in the bill, in a defended actio N Dubois v Dela- ware, etc, Canal Co, 12 Wen d ( N Y) 334 It is otherwise, however, in an uncontested actio N Walker v Wadsworth, i F F 397 1 Farvvell v Tyler, 5 Iowa 535; Schulhoff v Co-operative Dress As- so C, 3 Civ Pro Rep ( N Y Supreme Ct) 412; Cole v Kerr, Wright (Ohio) 675 2 Tompkins v Mahoney, 32Cal231; Laraway v Fischer (Supreme Ct), 19 N Y St Rep 651; Schulhoff z/ Co-operative Dress Asso C , 3 Civ See VI I More Specific Bill, supr A 3 The fact that a bill of particulars has been given does not operate to exclude evidence of matters not stated therein, but collateral to the main issu e Thus a debt not stated in the bill can be proved to show that the credit claimed was specifically appro- priate d Wilson v Deacon, 9 W N C (Pa) 47 4 Delaware, etc, Canal Co v Du- bois, 15 Wen d ( N Y) 87 5 Dwight v Germania L In S Co, 84 N Y 493; Kellogg v Paine, 8 Ho W Pr ( N Y Supreme Ct) 329; White Hall, etc, RCo v Myers, 16 Abb Pr, N S ( N Y Supreme Ct) 34; Moore v Belloni, 42 N Y SupeR Ct 184; Dowdney v Volkening, 37 N Y SupeRCt 313; Gebhard v Squier (SupeRCt), 10 N Y St Ri-j . 2 55 J 3 Civ Pro Rep ( N Y) 43 This rule seems now to be absolute in the practice under N Y Code Civ Pro, 531 Gebhard v Parker, 120 N Y 33, 18 Civ Pro Rep ( N Y) 244, 30 N Y St Rep 180; Bartow v Sidway, 72 Hun ( N Y)435, 55 N Y St Rep 268 6 Thompson v Hovey, 43 111 197; Byrne v Byrne, 47 111 507; Stark- XI I VAEIANCE BETWEEN BILL AND PLEADIN g A variance or dis- crepancy between the bill of particulars and the pleading so re- pugnant and contradictory, when construed together, as to be irreconcilable, is fatal upon demurrer to the pleadin g 2 XII I SPECIFIC ACTIONS 1 On Special Contracts Generall Y A bill of particulars of the plaintiff's demand may be required in counts in special assumpsit as well as upon the common money count S 3 2 Account S A bill of particulars is most frequently called for and required in actions upon contracts involving account S 4 In weather v Kittle, 17 Wen d ( N Y) 20; Brittingham v Stevens, i Hall ( N Y) 379- 1 Thompson v Hovey, 43 111 197 In McCreary v Hood, 5 Blackf (Ind) 316, a bill of particulars recog- nized by the parties as regular, though not called for by the defendant, was given to the jury to take out with the M 2 Accord and Satisfaction Open Ac- count. Where the defendant filed with a plea of accord and satisfaction a bill of particulars from which it ap- peared that the lumber, which it was alleged in the plea was delivered by the late firm of A Rp Son to and received and accepted by the plaintiff in satisfaction of the defendant's note, was charged to the plaintiff on the books of the firm, and that the account showed no credits, but still remained open and unsettled, the plea and bill of particulars being taken and construed together, the state- ments set forth in them were contra- dictory and repugnant, and did not sustain the ple A Snyder v Pharo, 25 Fed Rep 398 Immaterial Varianc e A bill of par- ticulars served forms no part of the record; and it is not error that the name and style of the defendant be- low, as set forth in said bill of par- ticulars, do not entirely correspond with the name given in the record, especially when such variance has not been assigned for erroRState St Methodist Church v Gordon, 31 N J L 264 A variance between the complaint and the caption of the plaintiff's bill of particulars is immateria L Vannoy v Klein, 122 Ind 416 Surplusag e A recital in the super- scription to a bill of particulars, in an action for goods sold and deliv- ered, of the goods as "sold to Rf M, suc'r to S F," does not control a count in the complaint that they were sold to both of such persons who are defendants, but such state- ment is surplusag e Furry v O'Con- nor, i Ind App 573 3 Wetmore v Jennys, I Barb ( N Y) 53; Barkley v Rensselaer, etc, RCo, 27 Hun ( N Y) 515; Kraft v Dingee, 38 Hun ( N Y) 345 See Ives v Shaw, 31 How Pr ( N Y Su- preme Ct) 54, where it was held that defendants were not entitled to a bill of particulars on an action for dam- ages for the breach of a special con- tract for service S Loss of Front S In an action for a breach of contract to distribute an advertising paper on certain railroad trains, plaintiffs claimed damages for an entire destruction of their busi- ness and for profits) lost on existing advertising contracts and contracts under negotiation, and an order was made requiring a bill of particulars of the damage S It was held that such bill need only state with whom the contracts were made and their duration, with the amount of damages claimed in each instance; and that plaintiffs might prove at the trial any damages not exceeding such Amount Van Vrankenz'.

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Pipes v Norton, 47 Mis Post Date: Mon, 28 Jul 2008 20:54:07 +0000
Gartner, 85 Mich 140 4 Deflatio N An account is defined to be a detailed statement of the mut- ual demands in the nature of debit and credit between the parties aris- ing out of contracts or some fidu- ciary relatio N Bouvier Law Diet 85; Union Hardware Co v Flagler, 8 N Y St Rep 894 It is not confined to an account state d Barkley v Rens- selaer, etc, RCo, 27 Hun ( N Y) 515 But see Johnson v Mallory, 2 Robt ( N Y)68 I InDowdney v Volkening, 37 N Y many states the right to a bill of particulars in such actions is for- tified or enlarged by express statutory provision S 1 SupeRCt 313, Monell, CJ, said: " The word 'account,' in its compre- hensive sense, of course signifies many things; but in its mercantile sense, and, I may say, its legal sense, as applied to actions, it means the entry of debits and credits, in a book or upon paper, of things bought and sold, of services performed, with date and price or value; it may be of a sin- gle entry or of a great number, and for a short or long perio d" Both Debit and Credit. In actions on account, therefore, a demand for a bill of particulars contemplates both the debits and the credit S Candee v Doying, 5 Civ Pro Rep ( N Y C P I) 92, 66 How Pr ( N Y) 452; Union Hardware Co v Flagler, 8 N Y St Rep 894 Gross Amounts of Invoices, etc In an action on an open account, it is not sufficient to file with the declaration a statement of the amounts of invoices or bills rendered merely, but there must be a copy of the account sued on, showing the items which com- pose it. Pipes v Norton, 47 Mis S 61 Accounts Rendere d Where the plain- tiff sues on an account the principal item of which is a " balance of former accounts as rendered," he must, on exception, furnish the items of such former account.

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CalCode Civ Pro, 454; Ge Post Date: Mon, 28 Jul 2008 20:39:37 +0000
Ledoux v Goza, 2 La An N 395; Shields v Richardson, 7 La An N 535 Account Settle d A plaintiff claim- ing a balance alleged to be due on a settlement of an account need not an- nex to his petition a copy of the ac- count. Buehler v Reed, n Iowa 182; Bates v Cobb, 5 Bosw ( N Y)2 g Account State d The defendant will' be entitled to a bill of particulars, though the action be on account state d Wells v Van Aken, 39 Hun ( N Y) 315, distinguishing Hoff v Pentz, i Abb N Ca S ( N Y Supreme Ct) 843; Duffy -v Ryer (City Ct), 43 N Y St Rep 796; 17 N Y Supp 843 Contra, Pipes v Norton, 47 Mis S 61 1 In California, Minnesota, Nevada, New York, North Carolina, South Carolina, and Wisconsin a verified copy of the account must be delivered within ten davs after demand in writing, or the party is precluded from giving evi- dence thereof, and the court may order a further account.CalCode Civ Pro, 454; Ge N StatMin N 1894, 5346; Comp Laws Nev 1873, 1119; N Y Code Civ Pro, 531; N Car Code Civ Pro, 118, Code 1883, 259; S Car Code Civ Pro, 181; Rev StatWi S 1878, 2672 A party is not entitled to a bill of particulars upon demand in writing, under this section, where the claim of his adversary is for violation of a special contract, and the consequen- tial trouble and expense resulting therefro M Ives v Shaw, 31 Ho W Pr ( N Y Supreme Ct) 54 In Colorado the statute is the same as in the states above mentioned, ex- cept that the time limited is five days instead of te N ColoCode Civ Pro, Five-day Limit Director Y The limi- tation of five days is held to be direc- tory only; and the court in its dis- cretion, if it finds that the account delivered is sufficiently specific, and that a reasonable and satisfactory ex- cuse is given for not delivering the account within the five days, and that the other party had ample time to prepare for trial, may admit the of- fered evidenc e Robbins v Butler, 13 Colo496 In Indiana, when the pleading is founded on a written instrument or an account, the original copy must be file d Code Civ Pro, 78; Rev Stat1881, 362 The complaint must show the filing of the account.

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Proper Matters of Account Post Date: Mon, 28 Jul 2008 20:22:45 +0000
Wolf v Schofield, 38 Ind 175 In Iowa the bill of particulars is incorporated in and made a part of the pleadin g Codes 1873 and 1876, . 2713 This provision applies to justices of the peac e McKenney v Hopkins, 20 Iowa 495 But an action to recover money fraudulently kept by the defendant, and for expense and trouble caused thereby, is an action founded on tort, and not on account entitling the de- fendant to a bill of particulars, under the cod e McDonald v Barnhill, 58 , Iowa 669 In Kansas, Nebraska, and Ohio a copy of the note, bill, or other writ- ten instrument must be attached to and filed with the pleadin g Kansas Code Civ Pro, 118; Neb Code Civ . Proper Matters of Account.

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