George Campbell Co v. Angus 1

• Decision Date: 02 May 1895
• Parties: GEORGE CAMPBELL CO. v. ANGUS et al.1
• Court: Virginia Supreme Court

22 S.E. 167

91 Va. 438

GEORGE CAMPBELL CO.

v.ANGUS et al.¹

Supreme Court of Appeals of Virginia.

May 2, 1895.

Assumpsit?/span>Pleading?/span>Bill of Particulars?Evidence?/span>Assessment of Damages?/span>Appeal.

1. Where plaintiff in an action of assumpsit does not file with his declaration an account stating the several items of his claim, as required by Code 1887, § 3248, the defect cannot be taken advantage of by demurrer, but only by moving to require plaintiff to file an amended account, and, if he fail to do so, to move to exclude evidence of matters insufficiently stated.

2. Where transactions in a suit are in sterling money, the pleading should set forth the indebtedness in sterling money, and leave its value in domestic money to be ascertained by the jury under Code 1887, § 2816, providing for such contingencies, or to state the indebtedness in foreign money of the value of so much domestic money.

3. Where no question is raised as to the genuineness of drafts on their introduction in evidence, such an objection will not be considered on appeal.

4. Though no foundation is laid for the introduction of copies of letters by requesting the production of the originals, such error will not cause a reversal where the letters are not. necessary for the case of him who introduces them.

5. Where a defendant appears and pleads, an order of inquiry as to damages under Code 1887. §§ 3284-3286. 3288, is not necessary.

6. In ordinary dealings a factor must obey his principal's orders as to prices and sales, but, if he advances on the goods to the principal, and demands payment of said advances, then, if said advances are not returned, he has a right to sell, and reimburse himself.

7. Where a defendant pleads the general issue, it is not error to reject special pleas of matter which may be proved under the former plea.

Error to circuit court, Powhatan county.

Action by George Angus & Co. against the George Campbell Company. Plaintiffs had judgment, and defendant brings error. Affirmed.

Wm. M. Flanagan, for plaintiff in error.

Willis B. Smith, for defendants in error.

RIELY, J. This is an action of assumpsit, and the declaration contains only the common counts. In every action of assumpsit the plaintiff is required to file with his declaration an account stating distinctly the several items of his claim, unless it be plainly described in the declaration. Section 3248, Code. The defendant demurred to the declaration solely on the ground of alleged defects in the bill of particulars. He claimed that it was vague and indefinite; and also that it was inconsistent with the declaration, in that it set forth transactions in sterling money, whereas the declaration alleged an indebtedness in and a promise to pay in the money of account of this state. Defects in a bill of particulars cannot be taken advantage of on a demurrer to the declaration. They are not within its scope, and it does not lie for such purpose. 1 Bart. Law Prac. 337; Abell v. Insurance Co., 18 W. Va. 400; and Sheppard v. Insurance Co., 21 W. Va. 368. Where a sufficient bill of particulars is not filed, the proper practice is to apply to the court to require the plaintiff to file an amended and sufficient account of his claim; and, if he fail to do so, to move the court to exclude evidence of any matter not sufficiently described as to give him notice of its nature and character. Tidd, Prac. 596-600; Bart. Law Prac. 337, 338; Moore v. Mau-ro, 4 Rand. (Va.) 488; Purdy v. Warden, 18 Wend. 671; and Starkweather v. Kittle, 17 Wend. 20. The court, therefore, properly overruled the demurrer. We have, notwithstanding, examined the amended bill of particulars filed by the plaintiffs after the first demurrer was sustained by the court, and find that the several items of the plaintiffs' demand are stated in such manner as to leave no doubt of the causes of action to be, and which were, relied upon on the trial. Matters of evidence are not required to be stated in a bill of particulars. Garfield v. Paris, 96 U. S. 557. And we further find that, although each item is for a transaction in foreign money, yet the value of such money is computed and expressed in domestic money. The defendant was without any reasonable ground of objection to the amended bill of particulars.

The first bill of exceptions was founded on the objection of the defendant to the introduction as evidence of certain papers and depositions "tending to show transactions between the parties in sterling money, " when the indebtedness alleged in the declaration was in money of account of the state. About this I had some difficulty at first, and thought that the declaration, in order to admit such evidence, should have set forth the indebted ness in sterling money, and left its value in domestic money to be ascertained by the jury under the provisions of the statute (section 2816, Code), or should have stated the indebtedness to be in foreign money of the value of so much domestic currency; and I still think this the more correct method (3 Rob. Prac. 498, 499; 2 Chit. PL 85, 86; Brown v. Jones, 10 Gill & J. 334). But upon reflecting on the office of a bill of particulars, —that it is to give a fuller and more particular specification of the matter contained in the declaration, and to be read in connection with it, —I have come to the conclusion that the bill of particulars supplies the defect of the declaration, if any, and that the objection of the defendant ought not to prevail. In the amended bill of particulars, as previously stated, the several items of the demand of the plaintiffs are not merely set forth in sterling money, but its value is calculated and expressed in federal money, and the aggregate in such money corresponds precisely with the amount alleged in the declaration. This being the case, it is the same in substance and in effect as if the indebtedness had been alleged in the declaration in foreign money of the value of so much domestic currency, which would have rendered admissible the evidence objected to.

It was also urged in the oral argument that the drafts and acceptances mentioned in the bill of particulars should not have been admitted as evidence, because their genuineness was not proved. An inspection of the bill of exceptions shows that this was not made a ground of objection to their Introduction on the trial in the lower court, and it cannot be raised and considered here now. The specific objection on this ground made to the admission of the letter of the defendant of August 8, 1891, confirms this view. The propriety of its admission will be adverted to further on.

Objection was...