Clinchfield Coal Corp. v. Brooks

86 S.E. 829, 118 Va. 72, 1915 Va. LEXIS 124

• Court: Supreme Court of Virginia
• Decided: November 11, 1915
• Status: Published

Opinion

Keith, P.,

delivered the opinion of the court.

William M. Brooks brought an action of assumpsit against the Clinchfield Coal Corporation and filed his declaration. The defendant appeared, pleaded non assumpsit, and asked the court to require the plaintiff to file a bill of particulars of its claim, under section 3248 of the Code. This the court refused to do, and the defendant excepted. At the trial there was a verdict for the plaintiff, to which a writ of error was awarded.

During the progress of the trial numerous hills of exception were taken and are made the basis of numerous assignments of error. We deem it necessary to consider only the refusal of the court to order the bill of particulars to be filed, as requested by the defendant.

Section 3248 of the Code is as follows: “In every action of assumpsit the plaintiff shall file with his declaration an account stating distinctly the several items of his claim, unless it be plainly described in the declaration.”

There is the plain statutory requirement that in every action of assumpsit the plaintiff shall file an account with his declaration, and he can only be excused from doing so by showing that the claim is plainly described in the declaration.

The declaration under consideration is little more than a' skeleton, and does not state distinctly the several items of the plaintiff’s claim, but omits many particulars as to which we think the defendant should have been informed.

In Campbell Co. v. Angus & Co., 91 Va. 438, 22 S. E. 167, it is said: “The bill of particulars required by section 3248 of the Code is no part of the declaration, and a demurrer will not lie for defects in such bill. The proper course to pursue, where a sufficient bill of particulars is not filed, is to apply to the court to require the plaintiff to file an amended and sufficient account of his claim.”

This course was pursued in this case, and we are of opinion that it was reversible error to deny the request.

Without passing upon other assignments of error which may not arise in a future trial, the judgment of the circuit court is reversed and the case remanded to be further proceeded in.

Reversed.