Miller v. Kent

Headnote

Bill of particulars—when should he ordered.

A broker who is the agent of his client is, and ought to be, required to show fully and specifically each item of the account which he charges against his client.

Each of the parties to such an account is entitled to know and to have presented to him, when a demand is made for a loss supposed or real, the items which make up such loss, and to be given an opportunity not only to inspect and ascertain the correctness of the same, but to controvert such items whenever it becomes necessary.

This is an appeal from an order at special teim denying plaintiffs’ motion for a further bill of particulars. The learned justice admitted plaintiffs’ right to a bill of particu

lars of defendant’s counter-claim in the opinion, hut denied the right in the order, as he subsequently settled it. This reconsideration and change of his decision-was because defendant’s counsel cited Hoff agt. Pentz ( 1 Abb. N. C., 288 ). Plaintiff’s appeal is from “ each and every part of said order.” The following clause in said order, to wit, “ and it appearing, and not being controverted, that the bill of particulars already served contains all the items of the account stated alleged as a counter-claim,” is a recital which the papers in the case clearly controvert. The action is brought to compel the defendants to account to plaintiffs for the profits on certain extensive purchases and sales of lard which defendants, as commission brokers, made for plaintiffs and others, from August 1, 1879, to January 16, 1880, under an agreement signed by all the defendants, who were to share the profits and losses according to prescribed rules of division. The defendants Kent and Poole were originally parties to that agreement, but subsequently withdrew therefrom and acted solely in the relation of brokers to the plaintiffs and the other defendants. Defendants have refused to furnish any accounts to plaintiffs whatever, and judgment is asked for an accounting. Defendants Kent and Poole, in their answer, admit the agreement, but deny every other allegation in the complaint, “ except that large quantities of lard were bought and sold under said agreement.” They also claim that plaintiffs were not entitled to an accounting when the action was begun. They further allege that “ after the beginning of this action ” defendants rendered to plaintiffs an account in which -plaintiffs’ firm was found justly indebted to the said firm of E. A. Kent & Company in a large sum, to wit, §11,586.29, which sum said plaintiffs then and there promised and agreed to pay said E. A. Kent & Company.” Plaintiffs’ reply denies any accounting whatever. The affidavit of plaintiffs show that they had been trying, since October first, to get some information of these purchases and sales, but they could obtain nothing more definite than “ Ex. B.” The affidavit

further states the series of motions, discontinuances, frivolous demurrers and other tactics whereby defendants have postponed giving plaintiffs this information. The affidavit further shows that this information was sought by examining defend-' ant before trial. That after defendant had secured a further delay by appeal, he, by his evasive answers, still conceals this information from the plaintiffs. By the defendants’ examination, it appears that they profess to be unable to give this information without their books; that they refused to look at their books to get the information; they refused to bring them into court under subpoena; that some of their books were in Chicago; that even if they did look at the books, their knowledge of practical" book-keeping was so limited that they couldn’t give-the information. Defendant in an affidavit read in opposition to plaintiff’s demand for particulars says: “ That plaintiff’s proportionate share is correctly set forth in the £ bill of particulars as served.’ “ Exhibit B.” But this bill of particulars which he calls an account stated, was rendered after the commencement of this action, and contains no items or particulars whatsoever. His counsel evidently served it in the form of an account stated, so as to invoke the authority of Hoff agt. Pentz, to defeat plaintiffs in obtaining a bill of particulars. The allegation by defendant in his answer of an account stated and settled, and that plaintiff promised to pay the balance, was reckless and unscrupulous in the extreme. For he admits that he did not serve it till after the action was begun, in which he was charged with gross fraud. His attorney’s object in securing such an answer from defendant appears by the following clause in his affidavit: “ I believe the bill of particulars of defendant’s counter-claim is good and sufficient in law, being a copy of an account stated, which he pleads,” and he quotes Hoff agt. Pentz in support of his position. These affidavits are substantially the same as were before this Court on defendant’s appeal from the order requiring him to be examined before trial. In the opinion of Ch. J. Davis, in affirming that order, he used the following

language ( 59 How. Pr., 325 ): “ The plaintiffs show to our satisfaction that they could not get such an account of the transactions of the defendants, alleged to have been made on their behalf, as they were clearly entitled to. A commission merchant or broker has no right to conceal from his customer any portion of his business and dealings in relation to the property alleged to have been bought and sold; and where he withholds the fullest information on that subject, the right to examination before trial in an action brought to recover alleged profits, or to adjust the unsettled accounts, should be fully accorded. We are not at all satisfied with the good faith of the alleged proffers of the examination of the defendant’s books, &c. The disingenuousness of the attempt thus to defeat the examination of defendant as a witness must have struck the court below as it does this court.” The perusal of defendant’s testimony taken under that order will, we think, strengthen and confirm the suspicions of this court as. to the disingenuousness of defendants.