Andrew Bennett vs. George Davis.
Amendment. Pleading. Declaration adjudged bad on demurrer. Account annexed.
A sufficient declaration must contain all the allegations necessary to make out the plaintiff’s case, without reference to a paper not attached.
An account annexed is a part of the declaration. As each item is, or may be, a separate contract of itself, no proof in regard to such contract is admissible unless the contract is alleged in the declaration.
Where an amendment is necessary, and is not made, a demurrer will be sustained.
On exceptions.
Assumpsit upon an account annexed. The count in the writ was in the common form, but the account' referred to as annexed thereto was this:
“George Davis to Andrew Bennett, Dr.”
“To groceries as per bill of particulars rendered, $28.52.”
At the entry term of the action, the defendant filed a demurrer which was joined by the plaintiff and overruled by the justice presiding, and the defendant excepted.
T. JD. Hashell, for the defendant.
My client objects that this declaration gives him no notice of the items or cause for which he is sued; and that, until they are specified, he cannot intelligibly defend. The plaintiff, by joining the demurrer, refuses to let us know for what we are sued, until we learn it, for the first time, from the evidence at the trial. Tho plaintiff might have amended, as the following citations show, but *545they also show that such amendment is necessary. Butler v. Millett, 47 Maine, 492; Tarbell v. Dickinson, 3 Cash., 349; Dorr v. McKinney, 9 Allen, 361; Priston v. Neale, 12 Gray, 222; Burgess v. Bugbee, 100 Mass., 152.
R. W. Robinson, for the plaintiff.
The words “according to the account annexed,” and the account itself, might be rejected as surplusage, and yet the declaration be good on demurrer.
Daneoeth, J.
A sufficient declaration must contain. all the allegations neeessary to make out the plaintiff’s case, without reference to a paper not attached.
An account annexed is a part of the declaration. As each item is, or may be, a separate contract of itself, no proof in regard to such contract is admissible, unless the contract relied upon is alleged in the declaration. The bill annexed in this case shows-that different items are' relied upon, but does not state what they are.
It is clear that the plaintiff cannot sustain his action, nor can he have judgment upon default, without an amendment; and where an amendment is necessary, and is not made, a demurrer will be sustained. Exceptions sustained.
Declaration adjudged bad..
Appleton, C'.. J., Walton, Dickerson, Barrows and Virgin, JJ., concurred.-