Moran v. Ebey

• Court: Montana Supreme Court
• Writing for the Court: HOLLOWAY, J.
• Citation: Moran v. Ebey, 39 Mont. 517, 104 P. 522 (Mont. 1909)
• Decision Date: 26 October 1909
• Parties: MORAN et al. v. EBEY.

104 P. 522

39 Mont. 517

MORAN et al. v. EBEY.

Supreme Court of Montana

October 26, 1909

Appeal from District Court, Lewis and Clark County; Thos. C. Bach Judge.

Action by Thomas F. Moran and Joseph N. Weggenman, copartners, etc against H. D. Ebey on an open account. From an order granting a new trial after the direction of a verdict for defendant defendant appeals. Affirmed.

Galen & Mettler, for appellant.

Clayberg & Horsky, for respondents.

HOLLOWAY J.

This action was brought to recover the balance due on an account for goods, wares, and merchandise alleged to have been sold and delivered to the defendant. The answer is a general denial. Upon the trial of the cause in the district court the defendant moved for a directed verdict, and this motion was granted. Subsequently the plaintiffs moved for a new trial, and this motion was likewise granted. From the order granting the new trial the defendant has appealed.

We think it appears from the record before us that this action was commenced in the court of a justice of the peace. The complaint shows that it was filed in the justice's court on May 14, 1907, and some of the witnesses testify that they were witnesses upon the trial of this case in the justice's court. But it is contended that the complaint is not sufficient as a pleading in the justice's court. The complaint is as follows: "Helena, Montana, May 1, 1907. H. D. Ebey to Thomas F. Moran and Joseph Weggenman, Copartners Doing Business under the Firm Name and Style of Moran & Weggenman, Dr. To balance for merchandise, consisting principally of meats, poultry, game, vegetables and market produce, at Helena, Montana, between November 20, 1906, and March 29, 1907, $255.12."

Sections 7005, 7007, Rev. Codes, provide: Section 7005. "Pleadings in justices' courts are not required to be in any particular form, but must be such as to enable a person of common understanding to know what is intended." And section 7007: "The complaint in justices' courts is a concise statement, in writing, of the facts constituting the plaintiff's cause of action; or a copy of the account *** upon which the action is based." It is contended that this complaint is not "a copy of the account upon which the action is based"; and the definition of the term "account" as given in 1 Cyc. 362 is relied upon. But, even conceding that the definition there given is the one generally accepted, still it does not govern in this instance, if the Code expressly or by fair intendment limits or qualifies that definition. It is said that the term "account" comprehends a list of items, whether debits or credits; but that this is not the meaning of the term as used in section 7007 above seems manifest from section 7016, which deals with the same subject-matter, viz., pleadings in justices' courts. Section 7016 provides: "When the cause of action *** or counterclaim, arises upon an account *** the court may, at any time, require either party to furnish to the other the items of an account or a bill of particulars." If the term "account," as used in section 7007 above, was intended to comprise a list of the items, the Legislature in section 7016 would doubtless have used the terms "copy of account or bill of particulars," but it did not do so. It used the term "bill of particulars" as synonymous with "items of an account" as distinguished from the account itself.

Some reliance is placed upon the decision of this court in Martin v. Heinze, 31 Mont. 68, 77 P. 427. In that case all that we decided was that, in an action upon an account stated, the defendant is not entitled to demand a bill of particulars. But in that case we were considering section 6569 (section 743, Code Civ. Proc. 1895), which seems to use the term "account" interchangeably with "items of the account," and this fact justifies the language employed. But the very fact that under section 7016 the defendant may demand a bill of particulars or the items of an account would seem to imply that the Legislature did not use the term "account" in section 7007 in the same sense that it is used in section 6569 above. There is not any reason for requiring the plaintiff to furnish the items of the account in his complaint, so long as the defendant may obtain them under the provisions of section 7016.

In Lataillade v. Santa Barbara Gas Co., 58 Cal. 4, the complaint filed in the court of a justice of the peace was in the following form: "Complaint. Santa Barbara, October 20, 1879. The Santa Barbara Gas Co. Dr. to Maria Antonia Lataillade. To balance due on rent of land, two hundred and fifty dollars." And of that complaint the court said: "The complaint filed in the court of the justice of the peace was sufficient to uphold a judgment by the justice, and sufficient, in the absence of special demurrer, to sustain the judgment of the superior court." Again, in Montgomery v. Superior Court, 68 Cal. 407, 9 P. 720, the same court said: "Pleadings in justices' courts must be construed with great liberality, and if the facts stated are sufficient to show the nature of the claim or defense relied upon, nothing further is required." The statute of California under which these cases were decided is identical with our own. We think the complaint in this action is sufficient to enable a person of common understanding to know what is intended, and this is the test prescribed by our Code, in section 7005 above, and is the general rule applicable in justices' courts. A general discussion of this subject may be found in 12 Ency. Pl. & Pr. 711, where a number of examples of pleadings, held to be sufficient, is given.

It is next urged that the trial court was correct in directing a verdict for defendant, and therefore erred in granting plaintiffs a new trial. In Ball v. Gussenhoven, 29 Mont. 321, 74 P. 871, this court said: "If...