The pleadings in this case were very general in their form. The complaint alleged, among other things, that the defendant was indebted to the plaintiff for board furnished, to which the former answered by a denial, putting the claim at issue. The defendant further answered by setting up a counter-claim for board furnished by him to the plaintiff, to which the latter replied with a denial. On this state of the pleadings, if nothing else had occurred, either party would have been at liberty, as against the other, to have resisted his adversary's claim for board upon the ground that the relations between the parties, as father-in-law and son-in-law, and the *Page 117 attendant circumstances were such as to negative any implied contracts to pay for board and require for success proof of an express agreement to pay; and if that defense failed, then to establish the amount and value of the board furnished. The two positions were not necessarily inconsistent. It might turn out in favor of either party that, while there was no implied contract, there was yet an express agreement to pay on one side and not on the other, and so, respectively, each party could insist upon his own claim while denying his adversary's, and neither conceded an implied contract by asserting his own right of action. But at some time each party furnished to the other a bill of particulars, and upon that served by the plaintiff the question arises argued on this appeal. It contained a charge against the defendant for board, and a credit allowed him for similar service of a less amount, and that credit, it is claimed, admits that for board to some amount the defendant was entitled to be paid; and so the referee erred in refusing wholly an allowance for that item and on both sides, upon the ground that in the absence of an express agreement the circumstances repelled an implied one. We are now rended that a bill of particulars is to be deemed an amplification of the pleadings and that similar admissions have been held to be sufficient basis for a judgment. It may be that the credit here given was an admission of the fact that board to the amount stated was furnished by the defendant to the plaintiff, but we do not think, having reference to the form of the pleadings and the issues raised by them, that the credit is a conclusive admission of legal liability to that amount. It is impossible to harmonize such a liability with the denials of the answer and reply, and, therefore, I think the bill of particulars must be construed to contain only a conditional or contingent admission framed to operate in a possible emergency. As no item could be proved on the trial ordinarily, unless embraced in the bill, it became necessary to name in that every charge which upon any theory at the trial might become admissible; and so the plaintiff while resisting the defendant's claim upon a ground equally fatal to his own might guard *Page 118 against the possible failure of that resistance by pleading and itemizing his own charge for board as in excess of the defendant's, and the credit given is in connection with the charge made and upon the theory that both charge and credit may by possibility prove to be a legal liability. The admission fairly requires to be treated as a concession of the fact that board had been furnished but does not waive the right claimed by the denial on each side of contesting a resultant liability flowing from the fact admitted. It is as if the plaintiff had said — board was furnished, so much by me and so much by my adversary, but I deny that either, for a reason which affects both, is a legal charge; yet if mine is allowed it amounts to so much, and I will prove it at that, while my adversary's is the less sum which in that event I admit. If this was hypothetical pleading, or the theories were in one view inconsistent, it is further to be observed that no objection was made upon the trial in any manner raising the question. The trial went from its beginning to its end upon an assumption that the question of legal liability for board was an open one on each side, and if defendant held the contrary he should have objected to the evidence offered to defeat his claim and relied upon the alleged admission. The attention of the referee would then have been called to it, and he could have ruled upon it and possibly the plaintiff might then have sought leave to amend, and obtained permission to strike out the credit as made under a mistake as to its effect and construction. A bill of particulars, like a pleading, may be amended. (Melvin v. Wood, 3 Keyes, 533.) And when the amendment sought is to strike out what is unessential to the bill and a needless addition, leaving the plaintiff's side of the account unchanged, it would seem quite possible to permit it. It is not the office of a bill of particulars to furnish a defendant with facts whereon to found an affirmative defense in his behalf. (Drake v. Thayer, 5 Robt. 694.) A plaintiff is not bound to furnish a statement of payments or offsets which he has voluntarily credited. (Ryckman v. Haight, 15 Johns. 222;Williams v. Shaw, 4 Abb. Pr. 209.) Where he has done so in such manner as by mistake to have *Page 119 perilled his right or made ambiguous his meaning an amendment allowed would not be an unwarranted discretion. But in this case the defendant went to judgment without once relying upon the alleged admission, or drawing attention to it, or claiming anything under it. He sees the evidence which defeats it offered and given in silence, and not until the decision is made, when opportunity for amendment is gone, does he raise the point. We think that is too late and furnishes no just ground for a reversal of the conclusion reached.
The judgment should be affirmed with costs.
All concur, except RUGER, Ch. J., not voting.
Judgment affirmed.