Butler Bros. v. Connolly

SHEPARD, Acting P. J. This is an appeal by defendant from a judgment for plaintiff for money due.

Facts

Plaintiff was the owner and defendant the manager of a store at Ontario, California, during July 1956 to January 1959. Serious shortages of inventory were discovered on annual check and plaintiff brought this action to recover $60,000 from defendant. The complaint is in three alternative counts, the first count being in the form of the common count of goods sold and delivered for which defendants agreed to pay; the second being in the form of the common count of money received by defendants for the use and benefit of plaintiffs; the third being in the form of the common count of money lent.

Nonsuit was granted as to defendant’s wife, Irene F. Connolly. Judgment was rendered in favor of plaintiffs and against appealing defendant in the sum of $60,000 and in favor of defendant on his cross-complaint in the sum of $2,649.42, for accumulated wages and retirement deposits. This appeal is solely from the portion of the judgment in favor of plaintiffs. Plaintiffs’ cross-appeal was dismissed by stipulation at the time of argument.

[24]Rulings on Evidence

Defendant’s first six contentions all involve substantially the same subject matter; that is, that evidence relating to inventories and accounts should not have been admitted or should have been stricken because, according to defendant, the bills of particulars furnished by plaintiffs on defendants’ demand and on order of court, were insufficient. With these contentions we cannot agree.

The purpose of a bill of particulars is to apprise defendant of the details of plaintiffs’ claim in order that defendant may intelligently present whatever defenses he may have. (Ames v. Bell, 5 Cal.App. 1, 4 [1] [89 P. 619] ; Gallwey v. Castelhun, 35 Cal.App. 589, 591 [170 P. 657]; Banchero v. Coffis, 96 Cal.App.2d 717, 722 [216 P.2d 151] ; Gilmore v. Hill, 152 Cal.App.2d 881, 882 [1] [313 P.2d 898].)

In the case here at bar, defendant was in complete personal charge of the store. Plaintiff, in response to the first demand for a bill of particulars, gave a detailed statement of the relationship of the parties; that defendant as manager of plaintiffs’ store intentionally and systematically gave false accountings to plaintiffs; that defendant destroyed some of the records so that plaintiff could not identify each individual item but that the total overall amount of deficiency in inventory was $59,233; that by reason of false inventory plaintiff paid items of salary to defendant to which defendant was not entitled, listing 48 items of salary. Thereafter, defendant moved for an order for a further bill of particulars and the order being granted, plaintiff served and filed a further bill stating that the specific items are not all known, being many thousands in number; the detail of the duties of defendant as store manager for plaintiff; the fact that the total sales receipts were $59,233 less than should have been received on the basis of the price reported by defendant, calculated on inventory depletion; giving a more complete breakdown on the items of salary overpayment by reason of false information; plaintiffs’ source of information on salary payments; and the specific dates of false accounting. Reference is made to the fact that 2,188 pages of inventory are involved and that said inventories would be available for defendants’ examination and copying at request. Thereafter, a second further bill of particulars was rendered, again explaining inability to specify all items hut giving 203 specifically identified falsified items in the inventory at the close of the year 1957, the total falsification amounting to $30,142.70,