Craig v. Parish

43 App. D.C. 447, 1915 U.S. App. LEXIS 2635

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 19, 1915
• Docket: No. 2706
• Status: Published

Opinions

Mr. Justice Van Orsdel

delivered the opinion of the Court:

The contract of October 9, 1900, was a contingent agreement to pay a fixed sum upon the happening of a certain event, — the allowance of the ice claim. The consideration therein named was twofold, — “pecuniary and other aid.” The consideration is so indefinite that we held on the former appeal that it would not support the presumption of legality, but must be proved. We think the declaration, however, in the light of the foregoing bill of particulars, is sufficient to justify us in directing a trial. The issues are comparatively free from difficulty. Plaintiff has set forth, though' in a general way, the pecuniary«aid furnished with sufficient particularity, we’ think, in the light of the proof disclosed in two former trials, to advise defendant of the claims asserted.

As to the services rendered, sufficient is stated in the bill of particulars to apprise defendant of what they consisted. All that is required is proof that the alleged estimates were furnished, and that the services thus rendered formed part of the consideration named in the contract. The contract is contingent, and the parties have fixed the value of the services, including the pecuniary aid rendered, at an amount equal to 5 per cent of whatever sum should be awarded in the. ice claim. Tho court, therefore, is not concerned with any comparison between the amount of money advanced by Ramsey and the value of the services rendered to the sum here involved. A small sum of money advanced to Parish in his extremity might furnish a valid consideration for a security of such problematical value as the one Ramsey received. Hence, this is not a cas.e where the itemized particulars of demand must aggregate to a nicety in dollars and cents the total amount claimed.

The documents, letters, and memoranda called for in the motion of defendant for the amended bill of particulars arc matters of evidence within the control of plaintiff to produce or withhold at will. Plaintiff is not required to state or disclose her evidence in the bill of particulars. Garfield v. Paris, 96 U. S. 557, 24 L. ed. 821. Neither does mere suspicion that Ramsey furnished information to Parish in aid of the proper and effective presentation of the ice claim against the government at the time Ramsey was in the government service, or within two years thereafter, have any bearing upon the proper disclosure of particulars of demand. The contract on its 'face purports to have been made long after Ramsey left the government service. The services alleged to have been rendered on the ice claim are stated at a time when Ramsey could legitimately perform such services. Some of the loans mentioned in prior bills of particulars from the dates appear to have been made when Ramsey was in the government service, but there is nothing to prevent a government employee from loaning money to a claimant against the government, so long as it is not furnished to assist the claimant in prosecuting his claim. But whether or not Ramsey violated the statute in this particular is a matter of defense. Plaintiff is not required either to set out in the bill of particulars or prove a negative. Ramsey is presumed to have acted honestly, and it rests with the defense to prove the contrary. Of course, if it could be shown that Ramsey violated the law as to one item, it would so taint the whole contract as to prevent any recovery. Hazelton v. Sheckells, 202 U. S. 71, 78, 50 L. ed. 939, 941, 26 Sup. Ct. Rep. 567, 6 Ann. Cas. 217.

The action in assumpsit is equitable in character. It is therefore liberal in form and furnishes a remedy highly favored by the courts. In the present case, both of the parties to the original agreement are dead, and, of necessity, the transactions will have to be adduced from evidence more or less indirect in character, consisting largely of documents and memoranda. The inquiry, therefore, partakes much of the character of a disclosure in equity. A liberal rule should be applied in such eases in the matter of requiring particulars of demand. In general, it may be said that a bill of particulars is sufficient if information of the nature of a plaintiff’s claim is given with sufficient certainty that the defendant may not be misled or deceived. Wright v. Dickinson, 67 Mich. 580, 11 Am. St. Rep. 602, 35 N. W. 164; Hess v. Fox, 10 Wend. 437. It is hardly possible that defendant, after two trials on issues joined, is in danger either of being misled or deceived as to the nature of plaintiff's claim. Besides, the case on the former appeal was remanded for trial, not for dismissal, for failure to file an additional bill of particulars. Indeed, there is reputable authority to the effect that defects in a bill of particulars cannot be urged after pleading to the merits. Southern Bldg. & L. Asso. v. Price, 88 Md. 155, 42 L.R.A. 206, 41 Atl. 53. The reason is less apparent for such a proceeding in the face of a mandate directing a new trial.

The judgment is reversed with costs, and the cause is remanded for further proceedings not inconsistent with this opinion. Reversed and remanded.