This is an action of contract, in which the plaintiff set forth his demand in two counts ; and at the return term filed a bill of particulars, with nothing on its face to apply it to either count in particular.. The answer, like the bill of particulars, is general, and does not in direct terms apply to either count. The court of common pleas gave judgment for the . plaintiff for the amount of the goods which appeared by the bill of particulars to have been lawfully sold, and held that the plaintiff was not entitled to recover beyond these three items. The question upon the appeal is whether this ruling was right.
1. The ground taken by the plaintiff is that, as no answer has been filed to the demand set forth in the first count, he is entitled to judgment thereon for the whole sum claimed, to wit, $139.93. As the plaintiff treats these counts as separate counts, and as he clearly has the right to recover $73.25 oh the second count, the result would be that the plaintiff would be entitled to recover much more than the whole sum claimed as damages in his writ, or than is really his due, as we understand to be conceded. To remove this objection, however, and to manifest that he would avail himself of his supposed legal advantages resulting from the defect in the answer only to meet the defence under the statute, he now suggests he will release all beyond $139.93.
But the question is, whether the plaintiff is well sustained in the position that no answer has been filed to the first count. It is urged that it is so, because the answer speaks only of “ goods alleged to have been sold by said plaintiff to said defendant.” The answer is general as to its application, and specifies no particular count to which it professes to be an answer, and, as the defendant contends, is as extensive as the claim.
But it is said by the plaintiff that the bill of particulars, specifying certain articles sold, must apply exclusively to the second count, inasmuch as a bill of particulars is not required to be filed under a count in insimul computas sent, as the debt or consideration need not be stated, the ground of action being the accounting together. As a general principle, this is certainly true, though by the new practice act, St. 1852, c. 312, § 4, under which this action was commenced, bills of particulars are
However this may be, the question recurs upon the precise state of the facts found here, whether the defendant ought to be wholly deprived.of his defence to the first count, and judgment rendered against him for the whole amount thereof, for want of an answer. The plaintiff did not in terms apply his bill of particulars to the second count exclusively. If it be thus limited, it is wholly by reason of the fact that it is composed of items of goods sold and delivered, and is therefore more appropriate to the second count. This may be so; but when the plaintiff seeks an advantage by holding his adversary to strict rules of pleading, he must not.object to being met with like strictness as to his own pleadings. The plaintiff, by filing a bill of particulars, not applied in terms to either count, might well lead the defendant to adopt a like general mode of making his answer, and yet intending it as applicable to the whole claim.
If the plaintiff had filed an additional bill of particulars, specially applicable to the first count, or if he had in direct terms applied the bill of particulars filed, to the second count exclusively, then the defendant would have been bound specifically to answer both counts ; and the omission to answer one might furnish a ground for asking judgment upon the count not answered. But the plaintiff having filed one bill of particulars, which on its face did not refer to any particular count; the two counts exactly corresponding in amounts claimed and times stated; and the ad damnimn being a sum quite too small to be adapted to the claim of the plaintiff, if the two counts were really for
2. The objection made by the defendant, to the application of the money paid, cannot avail him. The payments and the appropriation of them were stated in the bill of particulars, and the answer raised no question as to the appropriation of these payments. Judgment affirmed.