Wiggins v. Guthrie

• Court: North Carolina Supreme Court
• Writing for the Court: SMITH, C.J.
• Citation: Wiggins v. Guthrie, 7 S.E. 761, 101 N. C. 661 (N.C. 1888)
• Decision Date: 12 November 1888
• Parties: WIGGINS v. GUTHRIE.

7 S.E. 761

101 N.C. 661

WIGGINS v. GUTHRIE.

Supreme Court of North Carolina

November 12, 1888

Appeal from superior court, Durham county; MERRIMON, Judge.

This was an action by J. W. Wiggins against W. A. Guthrie to recover balance due on an alleged sale of lumber by plaintiff to defendant. There was verdict and judgment for plaintiff.

Defendant appeals.

In an action to recover for lumber used in defendant's house which plaintiff alleged he sold to the builder for defendant's use, plaintiff was asked on cross-examination why he had charged the lumber to the builder, and stated that the builder gave orders on defendant for the money. Held that plaintiff had a right to sustain his statement by introducing such an order as a part of his explanation.

W. A Guthrie and A. W. Graham, for appellant.

SMITH C.J.

The action is to recover the balance due on an alleged contract for the sale and delivery of a lot of lumber by the plaintiff to the defendant. The latter denies that any such contract was entered into, and further sets up a counter-claim based upon allegations of fact contained in his answer, not material to be stated. Two issues were submitted to the jury (1) Did the plaintiff furnish material to the defendant under a contract with him? The jury answer, and say, "Yes." (2) If so, what sum, if any, is due from defendant to plaintiff for such material? The jury respond: "Six hundred and thirty-nine dollars and sixty-five cents, with interest from the 1st day of November, 1886." The testimony is voluminous, needlessly in detail, and it is only adverted to in the examination of the errors in law assigned, so far as will render the objections intelligible.

Upon the introduction of the plaintiff as a witness on his own behalf, objection was made to his testifying in support of the claim, because, when demanded, he had failed to furnish a bill of particulars thereof, under section 259 of the Code. This section declares that while "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 a demand 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," etc. This enactment, which, in case of a disregard of the demand, shuts out all proof of the items of the claim coming from any witness, (and does not close the mouth of the party making it alone,) is intended to meet the case of a complaint that does not set out the particulars, and confine the evidence at the trial to such as are set forth. Its aim is to supply an omission to give them in the pleading, and hence, when furnished, they become substantially and in legal effect a part of the complaint itself. People v. Monroe, 4 Wend. 200. "The better practice," say the court in Kellogg v. Paine, 8 How. Pr. 329, "is for a party who intends to preclude his adversary from proving an account on the ground that he has not complied with a demand or an order for the particulars of such account, to apply for an order to that effect before the trial, so as to have the question settled before the trial." The propriety of this course is strikingly manifest in this case. But a complete answer to the objection is furnished in the fact that such bill is attached to the complaint, and made by reference a part of it, so that no such demand is authorized, unless the statement is defective; and the appropriate remedy for this is an application to the court for a more definite bill, in which the defects should be pointed out. Kellogg v. Paine, supra. There was no error in receiving the testimony offered.

As the controversy is essentially upon the point of the defendant's responsibility upon any contract, express or implied, to the plaintiff for the lumber furnished and used in the construction of the defendant's dwelling, it is necessary to set out the evidence pertinent to that issue, abbreviated only, or omitted, when it passes beyond the scope of that inquiry.

The plaintiff, after stating that he had furnished lumber to build the house in Durham that the defendant lives in, and testifying to various entries of lumber in his books, which where exhibited, between August 18 and December 24, 1886, proceeds thus: "Was acquainted with Mr. Guthrie before furnished the lumber. Paid the Bush Hill bill in full myself. Didn't made a cent out of it. First time I spoke to Mr. Guthrie was on 13th of November. I presented him bill on 13th, including all lumber except Bush Hill bill, and asked him for the money. His reply was I must look to the man I sold the lumber to. I told him that was just what I was doing; I sold him the lumber; gave him the credit through his agent, Pugin. He said, well, he didn't know anything about it, and couldn't pay it. I insisted on the payment, and he suggested we walk down to Mr. Pugin's office. We did so; had a talk with him (Pugin) about it. I stated to Pugin what I had stated to Mr. Guthrie,--this was in Mr. Guthrie's presence,--and told him what Mr. Guthrie's reply was. I asked Mr. Pugin if he didn't instruct me to send this lumber to Mr. Guthrie's house, and he would see I got the money for it. Pugin said he did. I further asked if he didn't tell me that he paid Mr. Guthrie's money out, and would see that Mr. Ransley paid all the bills. He said he did tell me so, and I needn't to be uneasy,--I would get my money; that there was a sufficient amount still due on the contract to pay all the bills; and further stated about the amount that had been paid on the contract--about $1,900, the contract being for about $3,500--would leave a balance of about $1,600 still due. I asked Mr. Pugin, in Mr. Guthrie's presence, if he didn't tell me he was Mr. Guthrie's agent, that all the money passed through his hands, and that he would see that I got my money. Mr. Guthrie said that he couldn't go round town assuming everybody's bills; that he didn't buy the lumber, and wouldn't pay for it, unless there was a surplus after the house was completed. Pugin then went on to say how much money it would take to complete the house; said it would take $600 or $700, and wouldn't certainly exceed $1,000. I then told Mr. Guthrie that I had just sent an order off from Mr. Pugin for his inside work, which I should countermand by that train unless he paid these bills. He turned off, and said 'All right!' and walked out of Mr. Pugin's office; turned and came back, and said, about that Bush Hill order, 'Don't countermand that order. Let it come along; and when the bill comes, send it to me, and I'll send you my check for it,'--and instructed me, at the same time, to charge it up to his private account. He turned and went off, and said no more right then; last I saw of him for several days. After that time, some time after first talk, had a talk with him on the street, near corner of R. Blacknall & Son's drug-store. I asked him to settle the bills for the lumber I presented. He said he never intended to settle them till he did it at the end of the law. I then told him that I should sue him, that I had sent the lumber there by the request of his agent, Pugin, and should sue him unless he paid them. He said 'All right!' and walked off." Notwithstanding the defendant's objections, the court admitted the above conversations in evidence, and defendant excepted.

Plaintiff further testified as follows: "The first of the Bush Hill bill arrived December 9th; last, about 24th. Didn't know at time what bill would amount to. Mr. Guthrie, in Pugin's office, did not deny that Pugin was his agent. All my bills, exclusive of Bush Hill, amount to $636.97 before any payment. He paid $100 November 13th, after conversation in Pugin's office, and before Bush Hill bill arrived. [Check for $100 shown in evidence.] Got the money on that check. I credited this amount on bill of lumber I furnished Mr. Guthrie. At that time he owed me no other debt; had no dealings with him up to that time. Cross-examined. Bush Hill bill was rendered to me March 15th. Paid the bill few days after I got it. Think the first bill sent to me was turned over to Mr. Guthrie. [Receipt for the bill, March 17, 1887, shown in evidence.] This was after I brought this suit. Ransley was building Mr. Guthrie's house. I didn't sell any lumber to Ransley. I very often got checks like the one shown. Have never made any charge to Ransley. The items of August 18, 1886, to September 4th, are charged to W. A. Guthrie; this from the ledger. On the journal, Aug. 18th, 1886, Joseph Ransley for W. A. Guthrie house. This is just as it stood there the day entry was made. I made the entries to suit my own convenience in keeping books. The reason I charged to Ransley was because he gave orders on Guthrie for the lumber. [Order shown. Its introduction objected to by defendant. Objection overruled, and defendant excepted.] Dated September 4th; includes bill from August 18th to September 4th. This order was presented to Mr. Pugin. Can't say I ever showed this order to Guthrie; may have done it. November 19th--[this order was read to the jury]--this order was for lumber I furnished Mr. Guthrie at the instance of Mr. Pugin. Pugin said, when I presented the order, it was all right and he would write to Mr. Guthrie, and get the money and pay it off." The defendant objected to the order of September 4th, but the plaintiff's counsel insisted that, as the defendant asked on the cross-examination the reason the plaintiff charged bills to Ransley, and the plaintiff gave as his reason that Ransley gave orders on Guthrie for the money, he should...