Hanson v. Lindstrom

• Court: North Dakota Supreme Court
• Writing for the Court: MORGAN
• Citation: Hanson v. Lindstrom, 15 N.D. 584, 108 N.W. 798 (N.D. 1906)
• Decision Date: 29 June 1906
• Parties: HANSON et al. v. LINDSTROM.

15 N.D. 584

108 N.W. 798

HANSON et al.

v.LINDSTROM.

Supreme Court of North Dakota.

June 29, 1906.

Syllabus by the Court.

A party is not bound to furinsh the bill of particulars provided for by section 5282, Rev. Codes 1899, on a mere demand; but, before delivery thereof can be compelled or penalties for the failure to do so can be inflicted, the court or judge must order that a bill of particulars be furnished.

A copy of an order for the delivery of a threshing machine outfit, accepted by the seller for a fixed price, on which certain payments have been made, is not a copy of an account, within the meaning of section 5282, Rev. Codes 1899.

A motion to direct a verdict should specify the grounds relied on.

A failure to comply with a stipulation providing for giving written notice of the failure of a machine to work as warranted defeats the right of the purchaser to defend an action for the purchase price, on the ground that there was a breach of the warranty, where such stipulation was a condition precedent to any liability on the warranty.

The fact that a foreign corporation is not authorized to do business in this state is a matter to be raised by answer, and need not be proven by the corporation plaintiff as part of its cause of action, although the complaint alleges that plaintiff has complied with the laws of the state in respect to doing business therein.

Unless the pleadings show the possession of writings or documents by a party, and unless it further appears from the pleadings that such documents will be necessarily used on the trial, a demand for the production of such writings must be made before the trial before secondary evidence of their contents can be received.

Appeal from District Court, Ransom County; Frank P. Allen, Judge.

Action by Ole Hanson and others against Louis Lindstrom. Judgment in favor of plaintiffs. From an order denying a new trial, defendant appeals. Affirmed.

T. A. Curtis, for appellant. Purcell, Bradley & Divet, for respondents.

MORGAN, C. J.

This is an action to recover a balance due on the purchase price of a threshing machine outfit. The contract is embodied in a written order for the threshing machine and attachments, upon the Advance Thresher Company, of Minneapolis, a foreign corporation. The machinery was delivered pursuant to the order and accepted by the defendant. In the order it was agreed by the defendant that he would make and deliver his promissory notes for the purchase price and secure the same by a mortgage on the machinery. The notes and mortgage were never delivered. After a trial before a jury, the trial court directed a verdict for the plaintiffs for the full amount due, being $1,244.63, after deducting $2,200 in payments from the purchase price, $3,320. Judgment was rendered on the verdict. Defendant made a motion for a new trial, which was denied, and he appeals.

It is defendant's first contention that the court erred in not sustaining his objection to the introduction of any evidence under the complaint. The ground of this objection is that the defendant demanded of plaintiffs' attorneys a copy of the order or contract mentioned in a general way in the complaint, in order that it might be used by defendant in the preparation of his answer. The defendant now claims that, a copy of the contract not having been furnished, the plaintiffs were not entitled to use the same as evidence on the trial. A decision of this question depends upon the construction to be given to section 5282, Rev. Codes 1899 (section 6868, Rev. Codes 1905), which reads as follows: “* * * It shall not be necessary for a party to set forth in a pleading the items of an account therein alleged; but he shall deliver to the adverse party, within ten days after the demand thereof in writing, a copy of the account, which, if the pleading is verified, must be verified by his own oath, or that of his agent or attorney, if within the personal knowledge of such agent or attorney, to the effect that he believes it to be true, or be precluded from giving evidence thereof. The court, or a judge thereof, may order a further account, when the one delivered is defective; and the court may in all cases order a bill of particulars of the claim of either party to be furnished.” It will be seen that said section applies to furnishing copies of accounts and bills of particulars. A copy of an account and a bill of particulars do not necessarily mean the same thing. A bill of particulars may be demanded on a claim which has no reference whatever to an accounting. The claim mentioned in the section on which a bill of particulars may be called for has a very broad application, and its meaning is almost as general as the words “cause of action” or “defense.” A bill of particulars may be demanded when the pleading is definite and certain as to the nature of the cause of action or defense, but further facts are required before the party can intelligently prepare his pleading or prepare for trial. Johnson v. G. N. Ry. Co., 12 N. D. 420, 97 N. W. 546.

In the case at bar, a copy of the contract was desired in order to prepare an answer. The contract called for was not a copy of an account within the meaning of section 5282, supra. Under said section a copy of an account may be procured on mere notice or demand, and, if not furnished, the party is precluded from giving evidence of the account. When a bill of particulars is demanded, and the application is in form, and the court deems it a proper case for the furnishing of a bill of particulars, the court orders that the same be furnished. In this case no application was made to the court to order a bill of particulars. Conceding, for the purposes of this case, that section 5282 applies, and that under it a copy of the contract was demandable thereunder, still no error was committed in allowing the contract to be received in evidence. The court must order the bill of particulars to be furnished before any penalty can be inflicted for the refusal to furnish it. It is not necessary to decide whether section 5644, Rev. Codes 1899, pertaining to allowing inspection of writings or books and furnishing copies thereof, applies to this case. It has been held that this section applies only to cases where such writings or books are to be used as evidence in the case and not for purposes of preparing pleadings. Kraus v. Sentinel Co. (Wis.) 23 N. W. 12. A party is not called upon to produce such papers or documents on the mere demand of the opposing party. The court may order their production upon proper application in a proper case. It is therefore clear that the defendant failed to comply with either of these statutes and cannot complain of the action of the trial court...