Randall v. Glenn , 2 Gill 430 ( 1844 )

Spence, J.,

delivered the opinion of this court.

The declaration in this case, has a count for money lent and advanced, and money had and received. The suit was brought to the May term 1841, of Baltimore county court. At May term 1841, of the same court, the defendant demanded a list, or bill of particulars, and the court passed an order upon the the plaintiff, that he deliver to the said Beale RandalPs attorneys, or file in the court, the particulars of the claim for which the suit was brought; and in the meantime, that all proceedings be staid. And thereupon, the said Glenn, by his attorney, filed in court, the following bill of particulars, to wit:

“In Baltimore county court, plaintiff’s bill of particulars, for money advanced by the said John Glenn to the said Beale Randall, at his instance and request, at various times, up to 16th May 1834, amounting to $18,120.60.” “Interest on the same, from 16th May 1834, until paid,” which said bill is thus endorsed, to wit: “service copy admitted 18th May 1841.”

After the service of this bill of particulars was thus admitted, the defendant pleaded nil debel; the plaintiff joined issue, and the cause was continued from term to term, until September term 1842. The first exception in. this case, raises the first question to be decided by this court; and inasmuch as the defendant’s motion fully presents the question, we insert it as follows:

“When this case was called for trial, the defendant, by his attorney, moved the court to stay all proceedings in the cause, because the plaintiff had not complied with the demand made by the defendant, on the 7th of May 1841, of the bill of particulars of the plaintiff’s claim, by his paper filed as such particulars, and served on the defendant on the 18th of May 1841, which motion the court over-ruled.”

The law seems well settled upon authority, that in actions of this class, the defendant may at any time before he has pleaded to the merits, if the declaration do not disclose the particulars of the plaintiff’s demand, call on plaintiff to exhibit them. Vide Mercer vs. Seyer, 3 Jno. Rep. 248. But it seems to be too late, after pleading to the merits, to object to the want of such a statement, or that the same is defective. Long vs. Kinard, Harper Consti., C. of S. Carolina 47.

In the case now under consideration, after the defendant had service of the bill, he filed his plea, and issue was joined, and the cause continued until September term 1842; and not before the cause was called for trial, did the defendant make the suggestion, that the plaintiff had not complied with the demand made of the particulars of his claim. This application of the defendant, at this stage of the case, after issue joined, and when the cause was called up for trial, for a continuance of the cause, might be considered as addressed to the discretion of the court, and we concur with the opinion of Gibbs, C. J., in Lovelock vs. Cheveley 3, Eng. Com. Law Rep. 185, where he says, “bills of particulars undoubtedly facililate the trial of a cause, but they must not be permitted to obstruct the justice of it. The party who objects to particulars, as insufficient, must make his complaint at the proper time. He cannot wait till the trial of the cause, and then raise an objection, which, if earlier made, might have been disposed of. In this case, if the plaintiff had not time to tax the bill, he might have applied to the court, but by keeping the particulars, he has waived his objection.” So in the case under consideration, if the defendant deemed the plaintiff’s bill of particulars insufficient, he should have made his motion earlier, when the defect, if there were any, might have been remedied, and the delay of the trial of the cause avoided; whereas by Ms delay, he has rendered himself obnoxious to the charge of having waived his objections. This was a matter in the sound discretion of the court, under all the circumstances of the case, and therefore, one from which an appeal does not lie, any more than it will on a refusal to grant a new trial.

At the trial of this cause, the plaintiff offered in evidence to the jury, a certain paper writing, purporting to be a mortgage from Beale Randall to John Glenn, which contained the following recital:

“Whereas Beale Randall, of the city of Baltimore, stands indebted unto John Glenn, of the same place, in a large sum of money for advances, the amount of which is to be hereby ascertained, upon an examination of their accounts, by Reverdy Johnson and James W. McCulloh, Esqs., mutually appointed by the said Beale Randall and John Glenn, for that purpose,” it being admitted, that said paper writing was signed and delivered by the said defendant, to said Glenn, as such submission on his, defendant’s, part, and that said Glenn agreed to such submission, and it was made accordingly. And the plaintiff further offered in evidence to the jury, a paper writing, admitted to have been signed by the said R. Johnson and James W. McCulloh, Esqs., as of the date it purports to have been signed, purporting to ascertain the amount so due. It was also admitted, that the parties had notice of the meeting of the referees, and by themselves, or agents, attended said meeting, and admitted notice of the said ascertainment, by said paper writing.

The defendant then objected to the admissibility of said paper writing in evidence, under the pleadings in this cause; which objection the court over-ruled, and permitted the evidence to go to the jury.

Our next enquiry is, therefore, whether there was error in this act of the court?

The ground of objection to the admissibility of this evidence was, first, that there was no count in the declaration under which it was admissible; that in order to let it in, there should have been a count on the award, or an account stated; that the original contract was merged in the reference and award.

The doctrine is too well settled at this day, to admit a doubt, that where parties submit matters in controversy, for the purpose of a final determination, and the arbitrators make an award, in such a case, that the original contract, or cause of action, is merged by the submission and award. It is true, that in England, the courts have, and do profess to make a distinction between submissions by parol, and by bond; but the American cases, so far as we have been able to ascertain, do not profess to hold this distinction.

The mortgage in this case recites, that whereas Beale Randall, of the city of Baltimore, stands indebted to John Glenn, of the same place, in a large sum of money for advances, the amount of which is hereby to be ascertained, upon an examination of their accounts, by Reverdy Johnson and James W. McCalloh, Esqs., mutually appointed, &c.

There is a distinction between a submission by parties of matters in controversy, to the judgment of two or more individuals, who are to decide the controversy, and a reference of a collateral, incidental matter of appraisement, or calculation, or the submission of a particular question, forming only a link in the chain of evidence, not calculated to put an end to controversy. Vide 4 vol. Cowens, Philip’s 1, note 240, p. 149. Garr vs. Gomez, 9 Wend. 649.

We hold, that the reference in this case, was a mere matter of calculation and ascertainment, as to the amount of money which had been advanced by Glenn to Randall, which the mortgage was intended to secure; that the reference and ascertainment did not merge the original contract; and that as an admission of the defendant, it was admissible in evidence, under the pleadings in this cause, of the amount due the plaintiff. Keen vs. Butshore, vide 1 Espi. 193. And King vs. Butshore, 1 Peakes, N. P. C. 227.

JUDGMENT AFFIRMED.