Stocklen v. Barrett

• Decision Date: 21 March 1911
• Citation: 58 Or. 281,114 P. 108
• Parties: STOCKLEN v. BARRETT et ux.
• Court: Oregon Supreme Court

114 P. 108

58 Or. 281

STOCKLEN v. BARRETT et ux.

Supreme Court of Oregon

March 21, 1911

Appeal from Circuit Court, Multnomah County; W.N. Gatens, Judge.

Action by Ed. R. Stocklen, doing business as the Yale Market &amp Grocery Company, against M.E. Barrett and wife. From a judgment in favor of defendants on appeal from the judgment of a justice of the peace, plaintiff appeals. Reversed.

Stocklen who is a dealer in groceries and meat, brought an action in the justice's court to recover from defendants the sum of $55.25, which he alleged to be the reasonable value of goods wares, and merchandise sold by him to defendants. Before the trial, the defendants demanded an itemized statement of the account, and in response thereto plaintiff furnished the following:

Portland Oregon, Feby. 6, 1909.

Mr. M.E. Barrett and Wife, Dr. Amt. forward .........

Jan. 1, 1907. Balance due for meat and groceries on this date ................ $55.25

To this was attached an affidavit, stating, in effect, that it was impossible for him to furnish an itemized account, as his books had been destroyed by fire, and that defendants had had an itemized account furnished them before the commencement of the action. Defendants thereupon moved the court to require plaintiff to make the statement more definite, which was denied. On the trial plaintiff had judgment, from which defendants appealed to the circuit court. Upon the appeal a jury was waived and defendants objected to any evidence by plaintiff concerning his account, on the ground of his failure to furnish an itemized statement thereof. The court admitted the testimony, subject to the objection. Plaintiff was also admitted to testify over objection that defendants had promised to pay the account and that a statement had been sent them, to which they had not objected. Plaintiff also testified that he sold the goods to defendants, made out sale slips, and knew that the prices charged were reasonable. On the conclusion of plaintiff's testimony, defendants moved for a nonsuit on the ground that there was no testimony to support plaintiff's claim, and later the court struck out plaintiff's testimony, and granted a nonsuit.

H.W. Strong, for appellant.

John Van Zante, for respondents.

McBRIDE, J. (after stating the facts as above).

We think the court below erred in striking out or refusing to consider the testimony offered on behalf of plaintiff. The demand for a bill of particulars rests upon the same principles as a motion to make a pleading more definite and certain. Conover v. Knight, 84 Wis. 639, 54 N.W 1002. In motions of that character a court will not require a party to be more definite in regard to matters concerning which he has no further knowledge. Cederson v. Oregon Nav. Co., 38 Or. 343, 358, 62 P. 637, 63 P. 763. In the case at bar the bill furnished was more definite than the complaint, in that it showed the character of goods furnished which the complaint wholly failed to show. There was not an entire failure to comply, but a part compliance, and whether plaintiff should be required to furnish...