Snowling v. Plummer Granite Co.

Massachusetts Supreme Judicial Court

Snowling v. Plummer Granite Co.

108 Mass. 100

CourtMassachusetts Supreme Judicial Court

DecidedOctober 15, 1871

StatusPublished

Cited by17 cases

This text of 108 Mass. 100 (Snowling v. Plummer Granite Co.) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Snowling v. Plummer Granite Co., 108 Mass. 100 (Mass. 1871).

Pincite

Opinion

Gbay, J.

The practice act requires that, in an action of contract upon either of the common counts, a bill of particulars should be filed by the plaintiff, with the items numbered consecutively, and be deemed part of the record, and answered as such, and that the defendant should answer each item specifically. Gen. Sts. a. 129, §§ 10,18. By the same statute, the declaration and answer in every case, though not evidence for either party, are to be deemed allegations by which the party making them is bound. § 72.

This is an action upon an account annexed, which under our practice is one of the common counts. Stearns v. Washburn, 7 Gray, 187. The plaintiff, in the twenty-sixth item of his bill of particulars, admitted a credit of a certain sum in cash. The defendants in their answer expressly admitted that the several items of credit in the plaintiff’s bill of particulars were true. Such being the state of the pleadings, both parties were conclusively bound by their respective allegations, and neither could contradict what the one had thus asserted and the other admitted. Rundlett v. Weeber, 3 Gray, 263. Boston Acid Manufacturing Co. v. Moring, 15 Gray, 211. Walcott v. Kimball, 13 Allen, 460. The reference to the auditor was necessarily limited to the matters in issue between the parties, and no issue having been made as to the amount of this item, he had no authority to vary that amount. Gen. Sts. c. 121, § 46. Flint v. Hubbard, 1 Allen, 252. The ruling of the superior court was therefore correct.

If the plaintiff wished to reduce the credit as stated in his bill of particulars, he should have moved to amend. If an amendment had been moved for and allowed, the court might then have [102]*102admitted in evidence the whole report of the auditor, unless the rights of either party required a recommitment of the report to him. Washington County Insurance Co. v. Dawes, 6 Gray, 376. Kendall v. May, 10 Allen, 59.

Exceptions overruled,.

Free access — add to your briefcase to read the full text and ask questions with AI

Gbay, J.

The practice act requires that, in an action of contract upon either of the common counts, a bill of particulars should be filed by the plaintiff, with the items numbered consecutively, and be deemed part of the record, and answered as such, and that the defendant should answer each item specifically. Gen. Sts. a. 129, §§ 10,18. By the same statute, the declaration and answer in every case, though not evidence for either party, are to be deemed allegations by which the party making them is bound. § 72.

This is an action upon an account annexed, which under our practice is one of the common counts. Stearns v. Washburn, 7 Gray, 187. The plaintiff, in the twenty-sixth item of his bill of particulars, admitted a credit of a certain sum in cash. The defendants in their answer expressly admitted that the several items of credit in the plaintiff’s bill of particulars were true. Such being the state of the pleadings, both parties were conclusively bound by their respective allegations, and neither could contradict what the one had thus asserted and the other admitted. Rundlett v. Weeber, 3 Gray, 263. Boston Acid Manufacturing Co. v. Moring, 15 Gray, 211. Walcott v. Kimball, 13 Allen, 460. The reference to the auditor was necessarily limited to the matters in issue between the parties, and no issue having been made as to the amount of this item, he had no authority to vary that amount. Gen. Sts. c. 121, § 46. Flint v. Hubbard, 1 Allen, 252. The ruling of the superior court was therefore correct.

If the plaintiff wished to reduce the credit as stated in his bill of particulars, he should have moved to amend. If an amendment had been moved for and allowed, the court might then have [102]*102admitted in evidence the whole report of the auditor, unless the rights of either party required a recommitment of the report to him. Washington County Insurance Co. v. Dawes, 6 Gray, 376. Kendall v. May, 10 Allen, 59.

Exceptions overruled,.

Cite This Page — Counsel Stack

Bluebook (online)

108 Mass. 100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/snowling-v-plummer-granite-co-mass-1871.

Opinion

Related

Cite This Page — Counsel Stack