ROBERT LANGDON, et al., Appellants, v. DAVID H. BROWN, Respondent.
Decided March 2, 1885.
Dill of particulars in a case where it cannotbe demanded as of course—Discretion in ordering—proper exercise of-—order for bill obtained by the other party.
In an action brought on a guarantee by defendant to pay for goods sold to a third party, the defendant pleaded a recoupment on account of the bad condition of some of the goods, and the plaintiff procured an order for the particulars of such claim by defendant.
Held, that the giving by the plaintiff a bill of particulars of the goods sold to the third person, was a facility for the defendants making their bill of particulars that the plaintiff should give, and the order requiring plaintiff so to do was upheld as a proper exercise of discretion.
Before Sedgwick, Ch. J., and O’Gorman, J.
Appeal by plaintiffs from order directing them to furnish a bill of particulars of the claim made in the complaint.
The action was on a guarantee by defendant to pay for such goods as plaintiff might sell to Lowry & Brown not exceeding a certain sum. The complaint alleged a sale to Lowry & Brown to an amount covered by the guarantee.
Further facts appear in the opinion.
Francis Forbes, attorney and of counsel for appellants,
argued :—The fact that plaintiffs obtained an order directing defendant to serve a bill of particulars of his defense does not entitle him to a bill of particulars from the plaintiffs to aid in the preparation of his own bill. It is not the office of a bill of particulars to furnish evidence (Drake v. Thayer, 5 Robt. 694 ; Fullerton v. Gaylord, 7 Ib. 551). But defendant would not have any greater knowledge of what damaged goods were in the hands of tailors after service of a bill of particulars than before. He states that there were such goods, and therefore must have better knowledge of them than the plaintiff. If so, he is not entitled to a bill.
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William H. Sage, attorney and of counsel for defendant,
argued :—A bill of particulars of the plaintiffs’ account is made necessary by the order which they obtained that the defendant serve a bill of the particulars of his defense. The affidavits submitted made a case for the exercise of the discretion of the court below, irrespective of the defendant’s right to demand the items of said account, and such discretion was correctly exercised (Dwight v. Germania Insurance Co., 84 N. Y. 507 ; Witkowski v. Paramore, 93 Ib. 470 ; Morss v. Hasbrook, 13 Week. Dig. 393; Bryon v. Durrie, 6 Abb. N. C. 139). An itemized account of plaintiffs’ claim is necessary to enable defendant on the trial to prove that the damaged goods were part of those sued for in this action. Defendant has only part of plaintiff’s invoices, and he is entitled to copies of all,of them, so as to identify the goods.
By the Court.
Sedgwick, Ch. J.
The action was not upon an account, and' the complaint did not allege any account (Code Civ. Pro. § 531). The plaintiffs were not bound, therefore, by the section, to give particulars upon the mere demand of defendant’s attorney. They did, however, yield to a demand made that they serve “ a copy of the account or claim for goods sold and delivered, set forth in the complaint herein,” and served upon defendant’s attorney something that has the appearance of a bill given by a merchant to a customer, but containing only charges of money, as due at specified dates. There is nothing to show whether or not this is a copy of anything. On receiving it, the defendant’s attorney took an order to show cause why plaintiff should not give a further bill of particulars, “ specifying thereon, the number of each piece of goods sold to the firm of Lowry & Brown.” The court ordered that such a bill be given, and from this order this appeal is taken.
If the validity of the order depended upon whether, if the first bill served was one that could not properly be demanded, there could be a further bill ordered on the ground of defendant’s absolute right to it, there *369might be ground for doubt. Substantially, however, after the plaintiffs had voluntarily furnished what 'they did furnish, it was a question for the discretion of the court, whether further particulars should be given ; for under the last sentence of the section specified, the court may in any case direct a bill of the particulars of the claim of either party to be delivered to the adverse party. The matter that shows that the court exercised discretion properly, is, that it appearing that the plaintiff had procured an order for the particulars of the defendant’s claim for a recoupment on account of the bad condition of some of the goods averred by the complaint to have been sold, the present order was a facility for the defendant’s making his bill of particulars that the plaintiffs should give.
Order affirmed, with $10 costs, and disbursements to. be taxed.
O’Gorman, J., concurred.