Brewster v. Aldrich , 70 Conn. 51 ( 1897 )

Andrews, C. J.

The bill of particulars was applicable only to the count for work and labor. It was the duty of the plaMtiff to file his bill of particulars and to strike out the other counts, before the defendant could be called upon to plead, and of the trial court to see that this was done, before hearing the cause. New York Breweries Corporation, Limited, v. Baker, 68 Conn. 337, 342.

Under the first assignment no error appears. The finding of facts shows that the plaMtiff had proved the contract referred to in the first item of Ms bill of particulars.

Nor does any error appear under the second assignment. The plaMtiff might lawfully recover on the contract, unless the count was insufficient in substance, or unless there was a material variance. Nothing appears in the findMg or in the record to show either. An immaterial variance could have no effect. The most that can be claimed is that the contract alleged was for an agreed price, and that the plaintiff did not prove the price so alleged to have been agreed upon; and the conrt rendered judgment for the reasonable value of the work and labor performed. This was not error. Rules of Practice, II, § 8, p. 12.

There is no error.

In this opinion the other judges concurred.