Berthold & Jennings Lumber Co. v. Geo. W. Phalin Lumber Co.

• Citation: 71 So. 989,196 Ala. 362
• Decision Date: 01 June 1916
• Docket Number: 6 Div. 274
• Court: Supreme Court of Alabama
• Parties: BERTHOLD & JENNINGS LUMBER CO. v. GEO. W. PHALIN LUMBER CO.

71 So. 989

196 Ala. 362

BERTHOLD & JENNINGS LUMBER CO. v. GEO. W. PHALIN LUMBER CO.

6 Div. 274

Supreme Court of Alabama

June 1, 1916

Appeal from Circuit Court, Tuscaloosa County; Bernard Harwood Judge.

Action by Geo. W. Phalin Lumber Company against Berthold & Jennings Lumber Company. There was judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Act April 18, 1911 (Laws 1911, p. 450) § 6. Affirmed.

W.J Monette, of Tuscaloosa, for appellant.

H.A. &amp D.K. Jones, of Tuscaloosa, for appellee.

THOMAS J.

The plaintiff, appellee, instituted this action against the defendant, Berthold & Jennings Lumber Company, by attachment sued out in the circuit court on the 7th day of July, 1914. On that day the writ was levied on defendant's property in the county where the suit was instituted. On July 10 1914, defendant executed a replevy bond for the property, and on the approval of the bond by the sheriff the property was, on July 11, 1914, returned to defendant. Three days before the first day of the court (November 13, 1914) plaintiff filed its complaint in the attachment suit. On November 14, 1914, defendant demanded a list of the items composing the account under section 5326 of the Code of 1907, and on November 18th thereafter, plaintiff filed in the cause and furnished defendant's counsel a specific list of the several items of the account, the foundation of the suit, aggregating 11,772 feet of lumber, of the aggregate value of $364.93, and subsequently amended the list or account by the allowance of credits which left the balance due thereon, as $53.20. Of the same date (November 18th) is the defendant's motion, duly verified, asking for a continuance on the several grounds specified therein. The motion for a continuance was denied by the court; and the exception to this ruling, reserved by the defendant, is properly presented by bill of exceptions. Hayes v. Woods, 72 Ala. 92. And this ruling is the basis for the only assignment of error on this appeal. The statute under which the bill of particulars was demanded in this case (Code, § 5326) is as follows:

"No profert of a sealed instrument is required in pleading, but, at any time previous to the trial, the defendant may have inspection of the bond or other instrument sued on, upon notice to the attorney of the party; or when an account is the foundation of the suit, a list of the items composing it."

Obviously the object of the statute was to prevent surprise and to acquaint the defendant with the matter of the claim against him (Pollack v. Gunter et al., 162 Ala. 317, 50 So. 155, and, under the recent amendment thereof, to acquaint the plaintiff with the nature of the defendant's set-off, whether it be an "instrument relied on," or items composing a counter demand. Gen.Acts, 1915, p. 597. In the Pollack Case, supra, the object of the statute, it was declared, refuted the existence of a legislative purpose to make the requirements of the statute "more strict than the ordinary rules of pleading," and the effect of the ruling was to permit the dates set out in the bill of particulars to be varied by evidence on the trial of the true dates when the services were rendered or items furnished. So in M. & B.R.R. Co. v. Worthington, 95 Ala. 598, 10 So. 839, where the question was of the sufficiency of the bill of particulars furnished, Chief Justice Stone gave the statute a liberal construction, and it was held that the items, "corn, oats and bran, consumed," permitted proof of the necessity, in the construction of such trestling, to raise heavy timbers by the use of...