Fague v. Corcoran ( 1884 )

Mr. Justice James

delivered the opinion of the court.

The court has decided to send this case back for. a new-trial. Some nineteen prayers were requested of the court below, of which two were granted and seventeen refused. Of these, we think the sixth, eighth, eleventh and nineteenth should have been granted. The.rixth prayer relates to what are known as the “Cooke assessments,” in which the whole cost of a street improvement had been assessed upon the adjoining property, instead of only one-third of the cost. And the prayer in substance was that if the Commissioners had adopted a general rule whereby all such assessments were cut down two-thirds then the plaintiff could not recover for this reduction, unless there was some proof that he contributed some specific service to that end. We think it plain that unless there was some proof of services rendered by the plaintiff i n effecting this reduction of twotliirds of the assessment, he would not be entitled to recover for that item of his bill. The prayer was quite applicable to the issue involved, and should have been granted.

The eighth prayer related to the plaintiff’s claim for effecting reductions in what is known as the “Emery assesments,” and the court was requested to instruct the jury that if, as a matter of law, no provision existed for the issuance of drawbacks or other credits for such reductions, the plaintiff’s claim for obtaining such reductions must he disallowed. We think this prayer should also have been granted. So, too, the eleventh prayer, in relation to certain grading which had been commenced, afterwards discontinued and the assessments cancelled by a general order of the Commissioners, the court was requested to instruct the jury that the plaintiff could-not recover any compensation on account of this cancellation of the assessment without showing that his services were directed to securing it. This prayer rests upon the same principle of law governing the sixth prayer, and should have been granted.

Finally, in prayer nineteen, the court was asked, but refused, to instruct the jury that for any services performed by the plaintiff before Congress, or any committee or member thereof, in securing or providing legislation in respect to special assessments on the defendant’s property, the plaintiff cannot recover.' There is a special reason in this case why this prayer should have been granted. The second count of the declaration had no reference to this claim, so that it could only be recovered, if at all, under the common counts, with the bill of particulars annexed. But, in the bill of particulars, there is no claim for any such service. The bill of particulars defines the application of the common counts, and is a part of the pleading under our system. It apprises the defendant what it is the plaintiff expects to recover on, and if there is no claim made in the bill of particulars for services before a committee of Congress in procuring this general legislation, it follows that no recovery can be had for such services, even if they had been rendered. This item should, therefore, have been disallowed. When the case goes back, the court below may allow an amendment of the bill of particulars, so as to add a charge for services of that kind, if the plaintiff wishes to include it in his recovery.