Hastings, Eskridge & Co. v. Lee

The plaintiff sued in assumpsit to recover the balance alleged to be due and owing it by the defendants for the construction of a dwelling house. The declaration consisted of *72the common counts, and those apparently relied on were for work and labor performed and for goods, wares , and merchandise sold and delivered. The defendants declined to plead in the absence of a bill of particulars; whereupon the plaintiff filed a statement in which it was alleged that its demand was based upon the construction of a two story duplex dwelling house located near the town of Seaford, including the furnishing of all labor and materials required for it; and that the house was built according to certain specifications and drawings which had been prepared by an architect, except as altered by the defendants. The size of the building and detailed specifications were stated; and it was alleged that the fair value of the house was $6650.00 of which the defendants had paid $6400.00 “in various payments.” The defendants moved for further particulars.

The function of a bill of particulars is to procure a discovery of a litigant’s case with greater particularity than is disclosed by his pleadings. And where, as here, the declaration contains a count or counts in indebitatus assumpsit, the defendant, under Rule 26, is not required to plead until the plaintiff shall have filed “full particulars” of the demand under such count. The rule secures to a defendant coming within its terms the right to a particular specification of the grounds and items of the demand.

The fair value of the house consists of the fail-value of the labor and materials furnished plus a reasonable profit. The defendants are entitled to be informed with reasonable precision of the kinds and amounts of the materials supplied and of the labor costs. The fault of the bill of particulars is that it is argumentative, and not informative.

A further bill of particulars is ordered.