Thornton, J., dissenting. — I dissent. The motion of the defendant for a further and more particular copy of the account sued on was denied by the court below, “ on the ground that in an action on an account stated no account need be furnished under the law.”
The statute on this subject is section 454, Code of Civil Procedure:—
“It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within five days after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof. The court or judge thereof may order a further account when the one delivered is too general, or is defective in any particular.”
The bill of items or particulars furnished on the action was of the most general character, and the defendant followed the usual practice in moving for one more particular. (Providence T. Co. v. Prader, 32 Cal. 638; 91 Am. Dec. 598.)
The account furnished was not a copy of the account sued on as an account stated, but something entirely different.
The question to be determined is whether, in an action on an account stated, a defendant is entitled to a bill of particulars, or, as it is sometimes styled, a bill of items. Certainly the demand of defendant comes within the statute, for an account is alleged in the first count of the complaint. I cannot see that it makes any difference as to the right to make the demand that the pleader counts on an account stated, unless it is held that an account stated is not an account, and I cannot perceive that it can be so held.
[74]In New York, where the statute is the same as regards this point as that of this state (N. Y, Code Proc., sec. 158), it was held by the superior court of New York that the account alleged in a pleading, the refusal to deliver a copy of which by the party alleging it precludes him. from giving evidence of it under the Code of Procedure (section 158), is some written instrument existing before the commencement of the action, evidence of the existence and contents of which is material to the party alleging it; in other words, an account claimed to have been rendered and acquiesced in,—that is, an account stated. (Johnson v. Mallory, 2 Robt. 681, in which cause the point is directly decided. See also Barkley v. R. & S. R. R. Co., 27 Hun, 516.) In the last case cited the court said: “In ordinary language, the word ‘account* is applied to almost any claim or contract which consists of several items. And there is no necessity for giving any limited meaning to the word as it is used in section 531, Code of Civil. Procedure.” (For section 531, see Bliss’s N. Y. Ann. Code, p. 396. Section 531 seems to have been enacted in place of section 158, above mentioned, of the New York code.)
In Brown v. Calvert, 4 Dana, 220, which was an action of assumpsit, the declaration containing only -the general counts (of which it may be said a count upon an account stated is one), the court said: “Whenever the form of the declaration is so general as not to apprise the defendant of the nature, character, and extent of the claim set up against him, he may demand a bill of particulars. Such a bill is not only proper, by way of limiting the plaintiff in his proof, to the specific demands claimed by him, but is essential to enable the defendant to prepare fully for his defense, and to guard him against surprise. The right is not only sanctioned by authority, but by reason and propriety.”
In Johnson v. Mallory, supra, it is said that the provision of the statute above referred to “ can only be con[75]strued to be intended to point out the mode of pleading an account, as well as to ascertain what account was intended. (2 Robt. 683.)
In Smith v. Hicks, 5 Wend. 51, it is held that a bill of particulars is sufficiently definite if it apprise the other side of the evidence that is to be offered, so that he cannot mistake as to his preparation to resist the claim.
The office of a bill of particulars is to apprise a party of the specific demands of the adverse party when the pleadings are general, and leave uncertain what is particularly demanded, either in the complaint or answer. (People v. Monroe Common Pleas, 4 Wend. 200; Drake v. Thayer, 5 Robt. 694.)
The bill of particulars is considered and construed as an amplification of the pleading to which it relates, and in that sense forming a part of it. (Bowman v. Earle, 3 Duer, 691; Chrysler v. James, 1 Hill, 214; Brown v. Williams, 4 Wend. 360, 368; Starkweather v. Kittle, 17 Wend. 20; Gay v. Cary, 9 Cow. 44; Ryckman v. Haight, 15 Johns. 222.)
The above cases show that the defendant is entitled to a bill of particulars, when the complaint is general, to enable him to prepare to resist the claim on which he is sued. It should be furnished to enable the defendant to prepare his defense, and if defendant must by his answer attack the items of the account, or any of them, for fraud, error, or mistake, in order to be heard in regard to them (and such seems to be the law in this state when the pleadings are verified: see Terry v. Sickles, 13 Cal. 427), then certainly he ought to have a bill delivered to him to enable him to prepare his answer assailing the items on the grounds mentioned.
As to the generality of the complaint, I cannot conceive a count more general than one setting up an account stated.
As to alleging an account in a complaint, the count on an account stated is the only one of the common [76]counts, whether in debt or assumpsit, in which an account is mentioned. (See, for the common counts referred to, 2 Chitty’s Pleading, 37-114, 385-387.) I have examined the forms of these counts as given by Chitty, and do not find any other count than one on the account stated, in which an account is ever alleged.
In the Regulæ Generales of Trinity term (1831), it is provided that a bill of particulars shall be delivered by the plaintiff with every declaration containing counts in indebitatus assumpsit, or debt on simple contract. (See appendix to 1 Chitty’s Pleading, 726, 727.)
It is highly probable that the sections (158 and 531) of the New York Code of Procedure, and the section 454 of the Code of Civil Procedure in this state, were framed in view of this rule of Trinity term, following what had always been the practice.
The above authorities establish, in my judgment, the true construction of the statute (Civ. Code Proc., sec. 454) in force in this state. They show that when the complaint counts on an account stated, the defendant is entitled as a matter of right on demand to have furnished him a copy of the account or bill of items or particulars. They show that he is so entitled, to enable him, first, to ascertain the account on which he is sued. (Johnson v. Mallory, 2 Robt. 683); second, to prepare his defense to the claim on which the action is brought against him; third, to frame his answer so as to attack the items * of it which he desires to assail for fraud, error, or mistake, and thus be enabled to offer evidence in regard to such items. The statute was framed to promote justice between and to secure a full and fair hearing to litigants, and in construing it the rule established by the code should be followed and regarded. This rule will be found in section 4 of the Code of Civil Procedure, and is in these words: “The code establishes the law of this state respecting all the subjects to which it relates, and its provisions and all proceedings under it are to be [77]liberally construed with a view to effect its objects and to promote justice.”
The construction of section 454 adopted in the prevailing opinion, in my judgment, is narrow and illiberal, defeats the object of the code provision, and must result in failure to promote justice. This is said with the highest respect for the judgment of the justices who concur in it.
I think the motion of the defendant for another and further copy of the account sued on and alleged in the first count of the complaint should have been granted, and the court erred in denying it.
In the prevailing opinion, an account stated seems to be regarded as a contract, and therefore a defendant is not entitled to a copy of it when an action is brought on it. We know of no rule of law which holds that an account stated is a contract. It is only evidence of a contract,—a contract, too, implied by law. Independent of an express promise to pay the balance ascertained by it, it can be nothing more than evidence of a contract which the law implies from circumstances.
It is also said in the prevailing opinion that “ the penalty for refusing to furnish an account is, that the party refusing to so furnish it shall be precluded from proving it, but it can have no application to a case where, as in an action on an account stated, he is not required to prove the account.”
The plaintiff is required to prove any account on which he sues when the answer of defendant puts its existence in issue. This is true of an account stated as well as any other. And in this case the defendant denied that any account was ever stated, and the plaintiff, in opening his cause, was very careful to prove it. The account furnished is not the account to be proved. The account alleged in the pleading is the one of which proof must be made. And section 454 precludes a party failing to deliver a copy of the account, not from proving the ac[78]count which he is to deliver, but from giving evidence of the account alleged in the pleadings. As here, an account stated is alleged, and it is that account he is precluded by conduct “from giving evidence thereof.” He is not allowed to give any evidence showing that the account counted on was ever stated, or even had an existence; in other words, as regards such account, he must go out of court, — be nonsuited.
But it is said that there should be no reversal, because the defendant suffered no injury from the denial of his motion, as he had in his possession and produced on the trial the accounts which had been rendered to him. But this production occurred some time after his motion was denied. The court, when it denied the motion, had no knowledge that any account had been rendered. The defendant was then told that as the complaint was on an account stated, the law gave him no right to have a copy of any account furnished to him. The court below seems to have taken it for granted that the mere allegation in the complaint that an account had been stated between the parties must be taken as true, and that, under such circumstances, the defendant had no right to the relief asked for, whether an account had been rendered or stated, or not.
The record shows that defendant’s motion was denied on the 30th of September, 1881, and the accounts referred to were produced on a trial which commenced on the 19th of December following, eighty days after the denial of the motion.
If the defendant had lost or mislaid the account which seems to have been rendered more than a year before suit brought, and he had to assail particular items of the account in his answer, it would have been a hard case upon him to have to plead without having the account to show to his counsel, that he might by answer attack any items objected to.
But in fact, as shown above, the defendant had a [79]right to ascertain on what account he was sued, so as to make preparation by pleading and procuring his proof to resist the claim in suit. He had a right to have the account, even if he had it in his possession when making the demand under the statute, identified as the account which he had to meet, so that he might not be put to conjecture what account he had to answer to and furnish evidence against. If the plaintiff had, in reply to his demand, stated in writing that the account alleged in the complaint referred to the account rendered him at such a date (specifying it), I think it would have been sufficient, unless the defendant had destroyed or lost or mislaid the account rendered. In such case of destruction or loss or mislaying, the defendant ought, on motion, to have had allowed him a copy of the account sued on.
Put the record furnishes conclusive evidence that the defendant was injured by this ruling.
The defendant offered evidence to impeach the correctness of certain items claimed to be in the account sued on as an account stated. The items mentioned were items of interest, and an account of Naglee and Mills charged to defendant against his objection. The same evidence was also offered to show that certain items sued for were barred by the statute of limitations.
To this offer plaintiff objected, upon the ground that the defendant had only denied that the account had been • stated, and had not attacked the statement for fraud or mistake, and that the testimony was not admissible under the pleadings.
The court admitted the evidence as to the defense of the statute of limitations only, and excluded it for all other purposes, thus sustaining the objection of plaintiff with the exception as above stated.
That the defendant suffered injury we think is clear. He was deprived of the means which the law afforded him of ascertaining what account he was sued on, so [80]that he might in his answer have assailed the items he intended to impeach; and when afterward he comes to offer his impeaching evidence, he is told that his answer is defective in not attacking such items, and his evidence must therefore be excluded.
We have no doubt that the court erred to the injury of defendant in denying his motion for the account. And further, that having denied this motion, when the defendant offered evidence to impeach items of the account for error or mistake, the court erred in excluding the evidence. No principle of law authorizes a court to deny to a defendant the means of properly setting forth his defense in his answer, and when he afterward endeavors to make such defense, to deprive him of it, and reject it because he has not properly set it forth.
I concur with what is said by Justice Temple, that under our statute a custom which would prove an agreement to pay more than legal interest is against law. I also agree with him that an assent to an account stated does not, under the statute of limitations of this state, take the account from the operation of the statute. The very point, in my opinion, has been adjudged in Weatherwax v. Consumnes V. M. Co., 17 Cal. 345. (See Wood on Limitations, sec. 280.)
Nor do I think that the writing relied on, viz., “ Received December 8, 1880, of Henry M. Naglee, one thousand dollars on account of the within,” was an acknowledgment signed by the defendant, as required by the statute. It could not be held to be signed by defendant, for the reason that he did not intend to sign anything. Where, in an olographic will, commencing with the pronoun I, and followed by the testator’s name, such name has been held a signing of the will, it was so held, because the court was satisfied that it was so intended by the writer. If anything appears on the face of the writing showing that the testator did not intend his name so written to be his signature, it would not be so held. [81]Here there is nothing showing that the defendant intended his name to be a signature to anything. He never could have supposed that he was signing an acknowledgment of a debt.
In fact, in writing the above words, he was doing what he had a right to demand the party to whom he paid the money should do, viz., to furnish-him with a written, receipt for the money.
For the foregoing reasons, I am of opinion that the; judgment and order should be reversed.
Rehearing denied.