Majority
p. 694William F. Drake et al. plaintiffs and respondents, vs. Stephen H. Thayer et al. defendants and appellants.
Headnote
1. Where the “claim”-of the plaintiffs purported to consist solely of money advanced generally to one of the defendants, and not of certain fictitious sums alleged in the complaint to have been entered in the books of the plaintiffs, by such of the.defendants as had previously been their clerks; Held that no specification of the latter sums, or any thing relating to them could properly form any part of a bill of particulars of the claim of the plaintiffs.2. A statement of “ the nature, character and purpose ” of entries of moneys alleged never to have been advanced, cannot form any part of a bill of particulars of money actually advanced; and even if inserted in it, could not perform the office of one, either by limiting the generality of a complaint or indicating the particular entries -intended.
3. Where the complaint has already shown the general nature, character and purposes of such entries, to order a repetition of the same matter in a bill of particulars would be useless.
4. The objection, that however novel, out of place, irregular or unsupported by prior allegations, a requisition on the plaintiffs to discover all the contents
p. 695(Before Bobektsoií, Ch. X, and Gabviií and McCunif, JX) Heard October 7, 1867; decided March —, 1868.
of their books relating to certain entries therein, or their views of the nature, "character and purpose of such entries, contained in an order for a mere bill of particulars, may be, it must be enforced, unless appealed from, is purely technical, and must be treated as such.
5. An order for a bill of particulars should not require the plaintiffs, besides giving the particulars of what they claim to be the false representations of the defendants, -which are the basis of the action, to state in a bill of particulars extrinsic facts not bearing on their nature, character or purpose.
6. The office of a bill of particulars is merely to limit the generality of a complaint, and prevent a surprise on the trial; but not to furnish evidence.
This was a motion for a re-argument of an appeal from an order made at special term, denying an application by the defendants for a further bill of particulars of the plaintiffs’ claim in this action which should show “the nature, character and purpose of items and amounts given in ” a previous “ bill of particulars as credited ” to one of the defendants, (J. H. Biglow.) Such motion was founded .on the appeal papers; the order of the general term affirming that appealed from; the opinion of the court delivered on the hearing of such appeal; and an affidavit of the attorney for the defendants, stating that such order “resulted from a palpable and vital misapprehension of the material facts before the court; and on which the same were predicated.”
The action was one for damages caused to -the plaintiffs by being induced to pay-certain moneys to the defendant Biglow, by means of certain fraudulent entries in their account books to his credit, in their account therein with Mm made by the other defendants who were their clerks, employed and confided in to make true entries therein, and also by means of a fraudulent omission by them to make certain other entries therein to his debit; which ought to have been made. Which entries and omissions were claimed to have been made in pursuance of a fraudulent conspiracy entered into by some of such defendants, with the defendant Bigelow to defraud the plaintiffs, which was known to the rest of the defendants and concealed by them
p. 696
from the plaintiffs for the same purpose. By a reliance on which entries, and in consequence of which omissions, the plaintiffs were induced to pay such sums of money to the defendant Biglow.
The complaint alleged the existence, in January, 1864, of a firm, consisting of one of the plaintiffs, (Albert Drake,) and one James Drake,, doing business in the city of Eew York as stock and specie brokers, who were employed by the defendant Biglow in numerous transactions in buying and selling stocks and gold coin for. him to a. large amount. That, sums earned by such firm for commissions on such transactions to a certain amount (¡$108.07) were omitted to be entered in the account of the defendant Biglow in the account books of such firm, by the other defendants, in pursuance of such conspiracy.
The complaint further alleged that the plaintiffs, together with the said James Drake, in June, 1864, formed a limited partnership for dealing in stocks and gold coin, wherein they were general and he was the special partners. That four of the defendants (Thayer, Gferner, Quinn and Persiam) were in their employment as clerks in December, 1863, another (Walter) in their employ in May, 1864, and the sixth (Halsted) in January, 1865, and they so continued until May, 1865. That by reason of the extent of the business of such firm, the keeping of the books and accounts of such firm, and making of purchases and sales by such firms were entrusted to such defendants, so employed as clerks; great confidence was reposed in them; and the plaintiffs relied upon the accounts kept by them with the defendant Biglow in such books. That a few days previous to the 4th of May, 1865, it appeared by the account so kept by such defendants with him in their ledger, that the plaintiffs owed .him $10,000, which they paid him, believing that they owed him that sum ; when they did not. That in like manner, on such 4th of May, 1865, they paid him a certain balance appearing due on such books, ($1256.21,) and in like manner they had previously paid him other sums of
p. 697
money so charged.' At its fifteenth folio such complaint alleged that since May 4, 1865, Biglow was credited on the ledger.of the plaintiffs with various sums not paid by him to such firm, and with which he was not entitled to be credited, amounting, with the omitted sums, to over ten thousand dollars ($10,151.25.) It also alleged, in a subsequent part, that some of the defendants who were the clerks of the plaintiffs, with the aid of the others, made contracts in the name of the plaintiffs, as brokers, for the purchase and sale of stocks and gold 'coin, which they entered in some of the books of the latter, but not in their ledger, as made for Biglow, and paid for that so bought with the money or checks of the plaintiffs, and received the price of that so sold in their name, deposited it to their credit in a bank, and passed any profit on such transactions to the credit of Biglow. Such complaint demanded as relief the payment of $10,259.32, with interest from May 4, 1865, which sum of money the plaintiffs claimed to have been their damages by the acts of the defendants therein set forth. The summons gave notice of applying for the relief demanded in such complaint, and not of judgment for the sum claimed.
Upon an affidavit of the attorney for the defendants, setting forth, among other things, that they were entitled to “ a copy of the plaintiffs’ account specifying the items and particulars of the plaintiffs’ claim in this action-, and showing the nature, character and purpose of the entries of the sums alleged infolio 15 of the complaint to have been credited to the defendant Biglow,” an order was granted to show cause “why the plaintiffs should not furnish the defendants’ attorney a copy of the plaintiffs’ account, specifying the items or particulars of the plaintiffs’ claim in this action as specified in ” such affidavit, or why the defendants should not have other relief. Upon such cause being shown, an order was made requiring the plaintiffs to deliver, within a certain time after service of such order,, (ten days,) “ a bill of particulars of their claim in this action, as specified in said order to show cause,
p. 698
specifying the items and particulars of said claim, giving the dates and amounts thereof, and showing the nature, character and purpose of the entries of. the sums alleged in folio 15 of the complaint.” Upon that order the plaintiffs served upon the defendants’ attorney three lists of items, with dates and amounts therein, verified by the oaths of such plaintiffs, that they contained the particulars of their claims. The heading of the first thereof was “ Bill of particulars of amount of commissions earned by the firm of I. M. Drake & Co. on purchases and sales of stocks, &c. for the account of L. H. Biglow, and omitted to be charged against him,’.’ of the second, “ Bill of particulars of amounts credited to L. H. Biglow on the books of Drake Brothers, but never in fact paid to said Drake Brothers,” and of the third, “ Bill .of particulars of amounts earned by the firm of Drake Brothers on purchases and sales of stocks, &c. for the account of L. H. Biglow, and omitted to be charged against him, including tax on sales not deducted from the amount of sales.” The-first contained eighteen items stated to be of gold or stock purchased, with the dates and amounts. The second, of seventy-two items of “ cash ” credited, with their dates and amounts; and the third, thirty-seven items of what is stated therein to be purchases and sales of gold coin and shares in a mining company. After the receipt of such lists, an order was made by one of the justices of this court, upon an affidavit of the attorney of the defendants of their insufficiency, requiring the plaintiffs within a certain time (five days) after service of a copy of it, to give a further bill of particulars of their claim, showing the nature, character and purpose of the items, given in “ the hill of particulars served,” as credited 11 to the defendant on the hooks of the plaintiffs’’ orto “ show cause on a certain day why the same should not be furnished.” Upon cause being shown on such order, the motion was denied, and from the order so denying it, an appeal was taken, upon which the same was affirmed, with costs.
Four grounds were assigned for the denial of such motion
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at special term, by the justice who denied it, in an opinion delivered by him:
1st. That the plaintiffs’ “claim” consisted solely of money advanced to the defendant Biglow, and not of the fictitious sums alleged in the complaint to have been entered in the books of the plaintiffs by those defendants who were their clerks.
2d. That a statement of “ the nature, character and purpose ” of entries of moneys which were never advanced, could not form part of a bill of particulars of money advanced, and even if inserted in it, could not perform any part of the offices of one, either by limiting the generality of a complaint, or indicating the particular entries intended.
3d. That the complaint had already shown the general nature, character and purposes of such entries, and to order a repetition of it in a bill of particulars would be useless.
4. That the lists of items served identified the entries intended, with sufficient definiteness and certainty to enable the defendants to prepare to meet on the trial of the issues, the allegations in the complaint.
The order appealed from, was affirmed mainly upon the grounds, that there was no objection made to the first and third parts of the bills of particulars, and that the nature and character of the items in the third part appeared by it and by the complaint.
W. Howard Wait, for the appellants,
J. 0. Garter, for the respondents.
The objection made in this case, on behalf of the defendants, that however novel, out of place, irregular, or unsupported by any prior allegations, a requisition on the plaintiffs to discover all the contents of their books relating to certain entries therein, or their views of the nature, character and purpose of such entries, contained in an order for a mere bill of particulars
p. 700
maybe, it must be enforced, unless appealed from, is purely technical and must be treated as such. Assuming such doctrine to be law, and that a court cannot refuse to enforce an order once made by it however frivolous, or however useless or impossible a compliance with it may bo, notwithstanding the maxim “lex non cogit ad vana aut impossibilia,” the defendants are not entitled to its benefit in this case. The first order for a bill of particulars not only, pursuant to the order on which it granted requires one to be furnished of the claim of the plaintiffs, but also as additional relief, that it should show the nature, character and purpose of certain entries in the ledger of the plaintiffs. The second abandons all further demand for the particulars of the claim of the plaintiffs or of any charges alleged to be omited from their books, and is confined to requiring that the nature, character and purpose of certain items in a bill of particulars rendered in consequence of the first order, and relating entirely to credits in such ledger to the defendant Biglow, should be shown in an additional “bill of particulars ” as it is called. The exigency of such second order of course cannot be extended beyond that of the first. Both are confined to entries and items of false representations, as they are claimed to be, and not to those of any actual transactions. Of course neither can require the plaintiffs, besides giving the particulars of what they claim to he false representations, which form the basis of their action, to state bill of particulars extrinsic facts bearing on their nature, in a character or purpose. The assumption, that the entries in the ledger of the plaintiffs, by which they allege themselves to have been deceived, must have been founded on prior entries in a day book or journal, specifying the details of some transactions, out of which the supposed credit given to the defendant Biglow in such ledger arose,_ is entirely unwarranted. There is no .evidence before us of even the existence of such books, much less of any entries in them; nor can any presumption be raised from the pleadings, that the plaintiffs know any thing more of the nature, character
p. 701
or purpose of such entries in their ledger, than they have given in their complaint and second part of their bill of particulars; and recourse must be had to some other proceeding than an order for a bill of particulars, in order to ascertain if they possess such knowledge, and compel them to disclose it. The office of such a supplemental statement as a bill of particulars, is merely to. limit the generality of a complaint, and prevent a surprise on the trial, but not to furnish evidence. I cannot understand the purpose of the entries in this case, (under the pleadings,) to be any thing else than a deception of the plaintiffs; their character to be other than a mere credit to the defendant Biglow, of a sum of money not due to him, without specifying.from what it arose; or their nature, to go beyond a mere entry in an account book of the plaintiff. The terms of the order are of the most general kind, and the plaintiffs have complied with it in the same way. If the defendants desire more precise details, they should have procured one more specific.
It is very true that the plaintiffs may be bound to prove on the trial, that they did not owe the defendant Biglow, the money they paid him, and which was credited to him on their books. But they are not bound to disclose how they mean to prove it, or with what transactions, or of¡ what nature, the false entries in their ledger are connected, if any such transactions are claimed by the defendants to have occurred, hi or will they be either entitled, or bound to elect on the trial whether they will treat any actual transactions as their own or Biglow’s-. The evidence introduced must alone determine whose it was, and whether its occurrence sustains the allegations of the complaint or not.
The distinction taken at special term by the court, between an action for the moneys falsely charged in the books of the plaintiffs, and one for money obtained on the faith of those charges, was therefore vital on the question of the nature of the plaintiffs’ claim, of which the defendants were
p. 702
entitled to the particulars, and it did not deserve the term “metaphysical,” sneeringly applied to it in the points for the defendants. Nor was the suggestion by the court, that the plaintiffs had already characterized in their complaint the entries in their books as false, and stated they were intended to deceive, and thus already given their general nature, character and purpose a “ subterfuge ” as it is indecorously called in such points. Nor have I been able to discover that the material facts before this court at general term, were palpably and vitally misapprehended by it. The motion for a re-argument must therefore be denied, with costs.