Prince v. Takash

• Decision Date: 12 May 1903
• Citation: 75 Conn. 616,54 A. 1003
• Parties: PRINCE v. TAKASH.
• Court: Connecticut Supreme Court

54 A. 1003

75 Conn. 616

PRINCE

v. TAKASH.

Supreme Court of Errors of Connecticut.

May 12, 1903.

Appeal from Court of Common Pleas, New Haven County.

Action by Adolf Prince against Rosalie Takash for goods sold and delivered, brought to the court of common pleas, and erased from the docket for want of jurisdiction, after the plaintiff had been required to amend his bill of particulars by showing payments claimed to reduce the amount unpaid to a less sum than $100. Plaintiff appeals. Reversed.

Verrenice Munger§, for appellant.

Denis T. Walsh, for appellee.

HAMERSLEY, J. This action is brought to recover the price of goods sold to the defendant. In commencing the action the plaintiff used the form of complaint denominated in the rules under the practice act "common counts," and authorized for that purpose only. After the action was returned, the plaintiff filed a bill of particulars for the purpose of restating his cause of action so that the same shall be stated as required by the practice act. Until this is done either by a bill of particulars or other amendment or substituted complaint, there is no complaint for the purpose of taking a default or rendition of Judgment or requiring the defendant to answer. When this is done, the cause of action thus stated stands for the form of complaint used in commencing the action, and the date of this restatement is treated, for purposes of answering, as the return day of the action. In legal effect the bill of particulars, as filed by the plaintiff, framed a complaint which alleges that the plaintiff sold and delivered to the defendant at stated times specified merchandise at specified prices, amounting in the whole to $235.80; that the defendant has not paid for the same; and that the plaintiff claims $150 damages. Such a complaint states a good cause of action.

The fact that the amount agreed to be paid is greater than the amount claimed as damages is immaterial to any question before us. The claim for damages may be amended during trial, or the proof may reduce the amount of the agreed price. The gist of the action is the breach of the defendant's duty to pay for the goods at the time of the sale and delivery. It is plain that the complaint disclosed no ground for a dismissal of the action for want of jurisdiction.

The defendant moved for an order of court directing fuller and more particular statements of the ground of the plaintiff's claim set forth in his complaint, and included in his motion a request that the plaintiff be ordered to amend his bill of particulars (meaning his bill of particulars filed for the purpose of completing his complaint by restating his cause of action in the manner required by law) by stating "whether any part of the claim or demand contained therein has been paid." This motion was allowed, and the court ordered the plaintiff to amend his pleading by stating "whether any part of the claim or demand contained therein has been paid," and this order is recited in the judgment. The plaintiff, under protest, and to avoid the penalties he might incur through disobedience of an order of court, amended his complaint by stating that certain payments had been made. The agreed price of the goods sold exceeded in amount the payments stated by a sum less than $100. Thereupon, on motion of the defendant, the court ordered the case to be stricken from the docket. The reason of the action is thus stated in the judgment appealed from: The court "ordered and directed that said case be stricken from the docket of said court on the ground that it appears from the bill of particulars filed in said case by the plaintiff that said court had no jurisdiction of said case." This judgment is erroneous. The court went too far in ordering the plaintiff to state in his complaint the fact of payment. If the plaintiff had relied upon a book account as the ground of his claim or demand, and the court had ordered him to state the whole account, a different question would be presented. But the ground of action is the failure of the defendant to make the payments he was bound to make at the time of each sale alleged. Payments subsequent to this breach of duty, which is the ground of the plaintiff's claim, need not be stated nor negatived in his complaint. Payment is a defense consistent with the truth of the plaintiff's claim, and by the express terms of the practice act must be specially alleged and proved by the defendant. The court erred in making that portion of its order which directed the plaintiff to amend his complaint by stating whether or not payments had been made, and the plaintiff is entitled to have the statement of payments made in...