John Dean vs. Benning E. Mann

HARTFORD COUNTY, SEPTEMBER TERM, 1859. Present, Stores, C. J., Hinman, Ellsworth, and Sanford, Js. John Dean vs. Benning E. Mann. A bill of particulars is properly an amplification of the declaration. Its object is to make a special statement of a demand which is generally stated in the declaration, and thereby to apprise the defendant of the particular claim* which he is to meet. A memorandum check is evidence in support of a count for money lent. A copy of the memorandum check filed as a bill of particulars is a sufficient one under such a count. Where there was a special count upon a memorandum check, and a general one for money lent, and a copy of the memorandum check was filed as a bill of particulars, it was held that the plaintiff did not thereby elect to rely on the special count and abandon the general one, but that the bill of . particulars was a sufficient one under the general count, and that the plaintiff might introduce the check in support of that count. A verdict having been rendered for the plaintiff On the general count and for the defendant on the special one, but upon a single issue joined, it was held that the defendant was not entitled to costs on the special count, under the rule, (Reg. Gen., Ch. 9, § 7., 18 Conn., 567,) which provides that the defendant may recover costs where there shall be two or more issues joined on distinct causes of action and a part shall be found for the defendant. Assumpsit. The declaration contained three counts, the first a special one upon the memorandum check set out below, the *second a special one on a promissory note of the same amount and date, and the third a general count for money lent. The defendant moved for a bill of particulars and the plaintiff filed the following: “ Memo. $500. Hartford, July 28, 1854. City Bank of Hartford. Pay to John Dean or order Five Hundred dollars, value received. B. E. Mann.” The defendant pleaded the general issue, which was closed to the court. On the trial the plaintiff offered in evidence the memorandum check set forth in his bill of particulars, and proved the execution, the presentment and non-payment thereof, and rested. No other evidence was introduced on the trial. The defendant claimed that the plaintiff was not entitled to recover, and that judgment should be rendered for the defendant, on the ground that the evidence offered by the plaintiff was not admissible under any count in the declaration except the first, and that that count was fatally defective in containing no averment that notice of the non-payment of thé check was ever given to the defendant, and that consequently no judgment could be rendered thereon for the plaintiff. But the court was of opinion that the evidence was admissible under the count for money lent, and therefore overruled the claim of the defendant and rendered judgment for the plaintiff. The court having found the issue for the plaintiff on one count only, the defendant moved for costs in his favor upon the other counts in the declaration ; bnt inasmuch as the plaintiff’s whole claim consisted of one item, to wit, the sum of money embraced in the memorandum check, the court was of opinion that the defendant was not entitled to costs on either count, and refused to allow him any costs. The defendant moved for a new trial for error in the rulings of the court. He also filed a motion in error, assigning as error on the record, that the bill of particulars contained no item of any matter embraced in any of the counts in the declaration except the count upon the check, on which count the court had rendered judgment for the defendant. [ *354 ] * Welles and Fellowes, for the defendant. 1. The main question arising on the motion in error in this case is, whether the judgment rendered for the plaintiff on the count for money lent is or is not erroneous. The determination of it depends on the effect to be given to the bill of particulars set out upon oyer and made a part of the record. The declaration contains a count upon a check, a count upon a note, and the common counts. The defendant being uncertain what claim the plaintiff relies on, applies to him for information, and is informed that he relies on the count upon the check alone, and on no other count, since he files a bill of particulars containing nothing but an exact copy of the check. The court renders judgment on the count upon the check for the defendant, and upon the count for money lent against him. In this the court erred, since the effect of the bill of particulars was to exclude the count for money lent from the declaration. 2. The same question arises on the motion for a new trial, in which it appears that the plaintiff offered no evidence but the check itself, and that the defendant claimed, as matter of law, that this evidence was not admissible under the count for money lent, and that the court ruled against this claim. Thus the effect of the bill of particulars was not to give true information to the defendant, but to deceive and entrap him. The court was misled by tbe case of Landon v. Sage, 11 Conn., 802, which bears no analogy to this case, there being no counts in that case but the common counts, and nothing in the bill of particulars to mislead the defendant. The case of Wade v. Beasley, 4 Esp., 7, is exactly in point. It should be distinctly observed that the question in this case is not as to the sufficiency of the bill of particulars, but simply as to its effect upon the declaration. 3. The Regulœ Generales, 18 Conn., 567, chap. 9, § 7, provide that each party shall be entitled to the costs of the issues found in his favor upon distinct causes of action. The causes of action in the count upon a check and the count upon a note are distinct from the causes of action in the count for money lent, and yet the court refused the ^defendant the costs of the issues found in his favor. [ *355 J This is error. T. C. Perkins and C. E. Perkins, for the plaintiff. 1. The memorandum check was admissible under the count for money lent. A note or draft is admissible evidence under the-common counts in an action by the holder against the maker. Edwards on Bills, 665, 666. A bank check is substantially a draft or bill of exchange, and is governed by the same rules. Id., 57, 58. A memorandum check is of itself merely evidence of money lent, like a due bill, or I. O. U. 2. The items specified in a bill of particulars are given for the purposes, and to be used in the manner, for which by law they may be used; not for any particular count, but under alL or any; and as the check was admissible under the special count, or the common count for money had and received, it only was specified. Landon v. Sage, 11 Conn., 302. 3. If it were not for the rule as to costs in 18 Conn., 567, (Reg. Gen., chap. 9, § 7,) no costs could be claimed here. That rule is, that when two issues shall be joined for distinct causes of action under different counts, and one issue is found for the plaintiff and one for defendant, the latter shall recover his costs. But here there was but one issue, and one cause of action ; and it does not appear from the motion that there was a hearing under more than one count. The act of 1858, which provided that one judge of the Superior Court should sit with the four judges of the Supreme Court of Errors in holding the latter court, was repealed at the session of the General Assembly, in May, 1859. See note, 27 Conn. Rep., 332, [MAJORITY — Sanford, J.] Sanford, J. The declaration in this case contains three counts. The first is a special count upon a memorandum check drawn by the defendant, the second, upon a promissory note, and the third is the common money count. The defendant demanded a bill of particulars, and the plaintiff gave him a copy of the check described in the first count; and the question before us is, whether, under this bill of particulars, the check recited was admissible evidence in support of any of the counts except the first. The argument against its admissibility seems to me to proceed upon a misconception of the object and the office of a ( *356 ] *bill of particulars. A bill of particulars is not given to indicate an election by the plaintiff of the particular count or counts on which he will claim to recover. It regards the subject matter of the claim with reference to the evidence on which it rests, rather than the manner in which that evidence is to be made available in the trial of the cause. The primary object of all pleading is, to apprise the adverse party of the claims made upon him, so that he may answer them, and prepare to meet them at the trial. When therefore, in a special count, by the description of the subject matter of the claim, and the statement of the facts on which such claim is founded, that primary object is accomplished, no bill of particulars is necessary or. demandable. But when, as in a common count for goods sold, money lent, &c., the pleading is so general as to leave uncertain what particular demand is intended, then the adverse party may need, and is entitled to, a bill of particulars, to guide him in his preparation for the trial. In reference to such counts, the particular is appropriately said to be an amplification of the declaration. But a bill of particulars “has no application whatever, when the demand is specifically set forth in the pleadings.” (Savage, Ch. J., in The People v. Monroe, 4 Wend., 200.) Hence it has been repeatedly decided, that when the declaration contains a special count as well as general ones, and the cause of action declared on in the special count is not mentioned in the “ particular,” the plaintiff may, nevertheless, prove, and recover under, his special count, as w'ell as give evidence of the cause or causes of action specified in his particular, under any count, general or special, adapted to their' recovery. The People v. Monroe, 4 Wend., 200. Hunter v. Welsh, 1 Stark., 224. Cooper v. Amos, 2 C. & P., 267. 2 Archb. Prac., 222. 1 Cow. & Hill Notes to Phill. Ev., 3rd Ed., 636, 7, 8. Smith v. Hicks, 5 Wend., 848. 1 Phill. Ev., 490. 3 Stark Ev., 1056. Landon v. Sage, 11 Conn., 302. Bishop v. Perkins, 19 id., 300. Such being the office and object of a bill of particulars, it follows that a recital or statement of the plaintiff’s whole evidence in this particular, unaccompanied by any intimation under which of the *counts in his [ *357 ] declaration he intends to use that evidence, leaves him at liberty to use it under such of them as are in point of law adapted to the claim in litigation, because the defendant, being conclusively presumed to know the law, by such a particular, and with reference to such a declaration, can never be misled. Hess v. Fox, 10 Wend., 437. Smith v. Hicks, supra. The complaint of this defendant is, that the effect of the particular was not to give true information to the defendant, but to deceive and entrap him, simply because of “ its effect upon the declaration.” How the mere recital, in a bill of particulars, of evidence, admissible and pertinent under two or more counts, could, “ by its effect upon the declaration,” or in any other way, deceive or entrap the defendant, it is difficult to discover. The proceedings in our courts every day exhibit cases in which the plaintiff states the same cause of action in two or more counts, arid substantially alike in each of them, so that his evidence is admissible, and he is entitled to recover, under either. But I think it has never been decided that a judgment in the plaintiff’s favor on one count, and against him on the other, for that reason is erroneous. In the case of Wade v. Beasley, 4 Esp., 7, cited by the defendant’s counsel, the declaration contained a special count upon a promissory note, and a general count for money lent. The plaintiff had given a bill of particulars, in which he stated that the action was brought to recover the amount of a note, describing it as it was described in the special count. The note when produced upon the trial was found to be without the proper stamp, and was therefore inadmissible in evidence under any count, whether specified in the particular or not. The plaintiff then offered other evidence of a loan of the money for which the note was given, but Lord Kenyon, Ch. J., rejected that evidence, because no intimation was given in the particular of any intention to introduce suck evidence. The difference between that case and the case at bar is manifest and material. In both of them, indeed, the particular pointed only to the written instrument declared on [ *358 ] and *specifically described in the special counts, as the evidence on which the plaintiff intended to rely, so that the defendant could not he required to come prepared to meet any other claim or any other evidence. But in Wade v. Beasley, the evidence to which the plaintiff had confined himself by his particular was, by reason of the statutory prohibition, inadmissible under any count, and was not in fact offered under the money counts—other evidence, in no way mentioned or alluded to in the particular, being resorted to instead of it. In the case at bar, the check recited in the particular was a valid instrument, to which no objection was or could be taken for want of any substantial, formal, or statutory requisite, and was the very evidence introduced under the common count, and on which the recovery was had. A valid promissory note is evidence against the maker of it under the common count for money lent, and, prima facie, sufficient evidence to maintain such count, because, in legal contemplation, it proves a loan of money, as it proves also the promise of re-payment which its language imports ; and, had the note in the case of Wade v. Beasley been duly stamped, it would undoubtedly have been admissible and admitted under either or both of the counts at the election of the plaintiff. The defendant’s' objections were therefore rightly overruled. The superior court decided correctly also in relation to the costs. The plaintiff claimed but one .cause of action, and the only issue was upon his right to recover upon that. The rule cited by the defendant’s counsel authorizes the allowance of costs to both parties only when two or more issues are joined for distinct causes of action. Reg. Gen., ch. 9, § 7., 18 Conn., 567. The judgment compained of should be affirmed, and the motion for a.new trial, denied.. In this opinion the other judges concurred. Judgment affirmed. New trial not advised.