Daily capital journal. (Salem, Oregon) 1903-1919, 1911-03-24
SUPREME COURT DECISIONS.
lcOntInued rlom page three.

Dcdl llOln lut ClTCulL COuTl lOT Null i
nomah county. The Hon. w. N Cat
ems, fudge Argued and submitted (
March 1, 1911 II. w. Strong, for ap-
pellant John Van Zante, for respon-
dent. Mcbride, J. Reversed and re-
StoCklen, who is a dealer in groc-
cries and meat, brought an action in
the Justices court to recover from de-
PENDANTS the sum of $55.25, which he
to be the reasonable value Of
goods, wares and merchandise sold
by him to defendants. Before the
trial the defendants demanded an
itemlzed statement of the account
and in response thereto plaintiff fur
nished the following:
Portland, Greg, Feb. 6, 1909.
Mr.. M. e. Barrett and Wife, DR..
Amt. Forward ..............
Jan. 1, 1907, Balance due for meats
and groceries on this date. $55.25"
To this was attached an affidavit,
stating, in effect, that 1t was impos-
sible for him to furnish an itemized
account as his books had been de-
stroyed by fire and that defendant
had had an itemized account fur
nished them before the commence
ment of the action. Defendants there
upon moved the court to require
plaintiff to make the statement more
definite, which was denied. On the
trial plaintiff had Judgment, from
which defendants appealed to the
circuit court. Upon the appeal a jury
was waived and defendants objected
to any evidence by plaintiff concern
ing his account, on the ground of his
failure to furnish any itemized state.
ment thereof The court admitted the
testimony, subject to the objection.
Plaintiff was also admitted to testify
over objection that defendants had
promised to pay the account and that
a statement had been sent them. to
which they had not objected. Plain
tin also testified that he sold the
goods to defendants, made out sale
slips, and knew that the prices
charged were reasonable. On the
conclusion of plaintiffs testimony de-
PENDANTS moved for a nonsuit on the
ground that there was no testimony
to support plaintiffs claim, and later
the court struck out plaintiffs testi-
mony and granted a nonsult.
Mcbride, j.; We think the court
below erred in striking out or refus-
ing to consider the testimony offered
on behalf of plaintiff. The demand
for bill Of particulars rests upon
the same principles as a motion to
make a pleading more definite and
certain; Conover v. Knight, S4 Wis
6S9. In motions of that character n
court Will not require a party to be
more definite in regard to matters
concerning which he has no further
knowledge: Cederson V, Oregon Nav
Co, SS Or S4S, S5S.
In the case at bar the bill furnished
was more definite than the complaint.
In that it showed the character of
goods furnished which the complaint
wholly failed to show. There was not
an entire failure to comply but a
part compliance and whether plain
TIN should be required to furnish a
further bill rested in the sound dis
cretion of the court.
1t would be reproach upon the
law and a sacrifice of justice to pro-
cedure If party should be wholly
debarred from giving evidence of his
claim, merely because through the
misfortune of fire the particular items
that went to make up the total had
been destroyed. The better opinion
Is that where a party shows that IL
is an impossibility for him to make a
more specific statement he will not
De punished for a failure to comply
with demand by having his evil
dence excluded; Rossman V. Book. 97
Mich, 4SO; Mosheim v. Pawn, Is N.
Y Supp 166; Wheelock V. Barney, ~
Ind 46s.
1t was claimed by defendants, and
apparently held by the court. that
evidence on behalf of plaintiff that
defendant NJ L, Barrett had admitted
that the balance due was $55.25 was
incompetent While II is true that
the evidence offered tended to prove
an account stated, It was also admis-
sible In this action for goods sold as
an admission by defendants OF the
justice of plaintiffs demand: DUFFY
" Hickey 6S Wis, S12; Bonnel V.
Mawha, 81 N j Law 19S; Theus &
Marbury v Jipson, 8 Tex. Civ App.
2Si,
Some claim is made by defendants