Waidner v. Pauly

Citations

• 141 Ill. 442
• 30 N.E. 1025

Syllabus

<p>1. Bill of particulars—its purpose and effect. The object of requiring the plaintiff to file a bill of particulars is to inform the defendant of tile claim he is called upon to defend against, and its effect is to limit and restrict the plaintiff, on the trial, to proof of the particular cause or causes of action therein mentioned.</p> <p>2. Same—subject to amendment. Although a bill of particulars, when filed, restricts the plaintiff to the particular cause of action therein set forth, it is subject to amendment, as any other pleading.</p> <p>3. Pleading—account stated—variance. The sum or amount alleged in a count on an account stated is not material, and the precise amount alleged to have been found due need not be proved to avoid a variance. The acknowledgment by the defendant of the sum due creates an implied promise to pay the amount, and it is not necessary to set forth the subject matter of the original debt.</p> <p>4. Practice—variance—when urged. If a variance exists between the allegation of the sum due upon an account stated and the proof, it is the duty of the defendant to specifically urge it on the trial, to the end that it may be obviated by proper amendments. It is too late to urge it on motion for new trial or on error.</p> <p>5. Same—abandoning the common counts—effect. Where the plaintiff, after the impaneling of the jury, elects to abandon the cause of action under the common counts and rely on the count on an account stated, this will operate as an amendment of the pleadings, and as an abandonment of his bill of particulars for other causes of act-ion. If the effect of this is to surprise the defendant, he may, by showing surprise in fact, be entitled to a continuance.</p> <p>6. Same—failure to file declaration before second term. If the plaintiff fails to file his declaration ten days before the second term of the court after the defendant is served with process, the defendant, if he has not waived the right, may have the suit dismissed. Un