Johnston v. Bowers

• Decision Date: 08 June 1903
• Parties: JOHNSTON v. BOWERS.
• Court: New Jersey Supreme Court

55 A. 230

69 N.J.L. 544

JOHNSTON

v. BOWERS.

Supreme Court of New Jersey.

June 8, 1903.

(Syllabus by the Court.)

Action by William Johnston against John W. Bowers. Verdict for plaintiff. Rule to show cause. Judgment on verdict, on conditions.

Argued February term, 1903, before GUMMERE, C. J., and FORT, HENDRICKSON, and PITNEY, JJ.

S. D. Olipbant, Jr., for plaintiff.

John Sykes, for defendant.

PITNEY, J. By the bill of particulars attached to and filed with the plaintiff's declaration, it appears that his claim against the defendant was made up as follows:

For work done and materials furnished by plaintiff for defendant in the building of a schoolhouse under contract

$3,520 00

For work and materials not included in the contract

319 85

$3,839 85

Credit due defendant against above account for work done and materials furnished by defendant for plaintiff

259 98

$3,579 87

By the admitted state of facts it appears that upon the trial there was a dispute between the parlies as to the sufficiency of the contract work done by the plaintiff, and also a dispute as to the items of extra work. By oversight, the credit item of $259.98 was not called to the attention of either court or jury, and so did not enter into the consideration of the jury in the making up of their verdict. The verdict was for $3,520.40, which included $115.00 for interest. It thus appears that as a result of the trial the plaintiff's claim of $3,839.85 was reduced to $3,404.80, to which was added $115.00 for interest thereon, making up the verdict of $3,520.40; and that the verdict gives no credit to the defendant for his counterclaim.

Defendant asks for a new trial on the ground that through accident an injustice has thus been done to him. But no complaint is made that injustice was done to either party with respect to those matters that were submitted to the consideration of the jury. Upon the agreed state of facts, we are bound to assume that the verdict is correct so far as it goes. Therefore neither party ought to be put to the expense and hazard of a new trial upon the matters thus controverted and concluded, if a just result can be otherwise reached.

Under section 237 of the practice act (Gen. St. p. 2572) the plaintiff may annex to his declaration a schedule containing the particulars of his demand, and in such case the defendant is not at liberty to make the statutory demand for a bill of particulars under section 230, and thereby stay the time for pleading. But, by the express terms of section 237, the party so annexing the same shall be bound thereby, unless in "case of surprise or for other good cause the court shall give relief." The effect of such a bill of particulars is not to enlarge or limit the averments of the pleading as a pleading, unless anything thus annexed is referred to in the body of the pleading as so annexed, under section 123 of the practice act. Harrison v. Vreeland, 38 N. J. Law, 306: Brown v. Warden, 44 N. J. Law, 177; Metzger v. Credit System Co., 59 N. J. Law, 340, 36 Atl. 661; Snyder v. Merchants' Insurance Co., 59 N. J. Law, 69, 34 Atl. 945; Voorhees v. Barr, 59 N. J. Law, 123, 35 Atl. 651; Melick v. Foster. 64 N. J. Law, 394, 45 Atl. 911; Shelmerdine v. Lippincott (Sup.) 54 Atl. 237. But the bill of particulars limits and defines, for the purposes of trial, the scope of the plaintiff's claim, and any credits thereon allowed are of course evidential against the plaintiff. Boody v. Pratt, 64 N. J. Law, 281, 45 Atl. 598; same case at a later stage (Err. & App.) 53 Atl. 470.

The suggestion that the credit item here in question is of such a character as to constitute a cross-demand on the part of the defendant against the plaintiff, and ought to have been pleaded as a set-off under the statute (Gen. St. p. 3109, §§ 1-4), is without force. In order to avoid circuity of action, the act treats a set-off in effect as a payment on eccount.

The earlier statute upon the same Subject, passed November 1, 1797 (Paterson's Daws, p. 254; Revision 1821, p. 305; Rev. St. 1847, p. 804, tit. 29, c. 2, § 11), required the defendant to plead payment and give notice of the set-off thereunder, a method of pleading that is still commonly followed, although perhaps not compulsory under our present act concerning set-off. But where the plaintiff himself acknowledges the subject-matter of the set-off, and treats it in his bill of particulars as a payment on account by applying it as a credit upon the amount of his demand, it seems unnecessary to cumber the record by requiring the defendant to file any special plea. Were we of n different opinion, we would, of course, permit the defendant to amend his pleadings. As it is admitted that the defendant is in truth entitled to the credit, we see no difficulty in dealing with the matter directly, upon the equity of the act concerning set-off, precisely as if the defendant's claim had been established by judgment. State v. Welsted, 11 N. J. Law, 397.

It is the established practice of courts of law to exercise such control over their own proceedings, judgments, and process as to see that justice and equity are done with respect to the disposition of the proceeds of a judgment. Thus, before choses in action were made assignable at law, the law courts constantly recognized equitable assignments, and protected the rights of the assignee by dealing with him as the party really entitled to enforce the cause of action and to receive the beneficial proceeds thereof. Belton v. Gibbon, 12 N. J. Law, 76; Sloan v. Sommers, 14 N. J. Law, 509, 512; Parsons v....