plaintiffs to the defendant, at his request, on the 1st day of May, 1849, at the city of Buffalo, in said county. And the plaintiffs say that the items in their account exceeded twenty in number.1 And the plaintiffs say that there is now due to them, from the defendant, the sum of $371.01, for which sum the plaintiffs demand judgment against the defendant, with interest from the 20th day of October, 1849, besides costs. that the pleading would have been more complete if it had stated whether the price claimed was fixed by contract between the parties, or, in the absence of a contract, was claimed as the value of the goods. This, however, he thinks is done in effect, for no contract as to price is alleged, and the claim of that sum as the price or sum due for them, without stating that there was a contract for it, is, in effect, claiming it as the value, and not the contract price of them. It may be added that the pleading in the case referred to (Allen v. Patterson) could, no doubt, be improved in other particulars, as by alleging affirmatively the sale and delivery of the goods, &c., and generally the kind and description of goods, so as to indentify the demand; as in the next precedent, No. 32. This is altogether unnecessary. By the original Code the items of an account were not required to be set out, where they exceeded twenty in number. But by the amendment of the next year, and as the Code now stands, it is unnecessary to set out the items of an account in any case. Still, where there are but few items, and it can conveniently be done, it will be as well to set them forth, as in No. 43, post, in order to save the trouble of subsequently furnishing a bill of particulars or copy of the account. (No. 32.) Another form for goods sold and delivered. Title of the Cause. The plaintiff complains of the defendant: That on the 1st day of May, 1849, at the city of Buffalo, he sold and delivered to the defendant goods and merchandise, consisting of various items of hardware, the prices of which were fixed and agreed upon at the sale, by and between the plantiff and defendant, amounting in the whole to the sum of $1 [or, if it be preferred, "the items of which, and prices agreed upon between the plaintiff and defendant, are set forth in the bill thereof, hereto annexed;"2 or, if $ 1 Notwithstanding the case of Allen v. Patterson, it seems to be necessary still, or, if not absolutely necessary, it is always proper and prudent, to state in this general way the nature of the claim, in order to avoid a motion by the defendant to make it more definite and certain. In the case of Lord v. Cheesborough (13 How., 558), referred to in the preceding note, it was held, on a motion to make the complaint more certain, that a complaint was defective in which the plaintiff' merely alleged that at the defendant's request he "rendered other services, as agent, for which he is entitled to have, as a fair reward, $50," or in which the allegation was general, "for work, labor and services done, and materials furnished by plaintiff," without specifying what work, when and where done, &c. It is undoubtedly a correct rule to adopt, in this and similar cases, that the demand should be so far identified as to distinguish it from every other demand of like nature. That it should be so described as to be generally known wherever it makes its appearance, so that, upon a recovery thereon, enough should appear in the complaint to constitute a sufficient bar to any other suit to enforce the same demand. (See Pleadings, 233, 234, 266.) 2 If the items are not set forth in the complaint, the defendant is always enabled to obtain them by demanding a copy of the account or bill of particulars. no price was agreed upon, "which merchandise was delivered on the defendant's order, and the same is reasonably worth the sum of $―."] That said sum is due from the defendant to the plaintiff, and no part thereof has been paid, [or, "that no part of said sum has been paid except the sum of $and there is still due from the defendant to the plaintiff, and unpaid thereon, the sum of $.”]1 Wherefore the plaintiff demands judgment against the defendant for, &c. with the plaintiff to pay him the sum of $ contracted month, for each and every month that the plaintiff should 1 It is allowable and proper to allege what payment has been made on the demand, and to state the exact balance claimed to be due. (See Blodgett v. Wilkinson, 12 How., 326.) 2 In cases of a special contract between the parties, where it has been rescinded or abandoned or put an end to by the wrongful act of the defendants, the plaintiff may resort to the common counts. So, where the work has been completely executed; so, also, where the work has been done pursuant to the contract, except as to time, and the defendant permits it to be done after the time has expired, the common counts are sufficient. But if the contract contains such spe said defendant has not paid plaintiff for the same, or any part thereof, except the sum of $ the, &c. paid in or about Wherefore the plaintiff demands judgment for, &c. (No. 34.) For labor and services, price not agreed on. Title of the Cause. The plaintiff complains of the defendant: That on or about the day of, at defendant's request,' he entered into the said defendant's employ and service, in the business of, [stating general nature of employment,] and so continued for one year. And the plaintiff alleges that his said services were reasonably worth the sum of $, and that he has not been paid anything on account thereof. Wherefore the plaintiff demands judgment, &c. cial provisions as require an allegation of performance, before the plaintiff would be entitled to recover, then the proper mode of pleading is on the contract itself and not on the common counts. Such was the rule before the Code; and although the same specialty in pleading may not now be required, yet the same certainty in the statement of material matters is still required. (Per SLOSSON, J., Adams v. The Mayor, &c., of New-York, 4 Duer, 305.) 1 As to pleading request, see note, post, p. 429. day of The plaintiff complains of the defendant: That on the he loaned the defendant, for his accommodation and at his request, and without any time being agreed upon for repayment, the sum of $. That he has demanded payment of the same, which the defendant refused, and still refuses, and neglects to make.1 Wherefore the plaintiff demands judgment for, &c. "for 1 The old common money counts, it is held, are still good, as money lent," for "money had and received," for "money paid, laid out and expended," &c. (Adams v. Holley, administrator, &c., 12 How., 327; and see Pleadings, 262-265.) The old form of the money count in an action of debt (with some trifling variation) may therefore be used or adopted in all these cases. The above complaint, if stated in such form, would be as follows: "The plaintiff complains, &c., that on the fendant became and was indebted to the plaintiff in the sum of $for so much money lent by said plaintiff to said defendant, to be paid by the said defendant when he should be thereunto afterwards requested; yet the said defendant, although requested, has not paid the same, in whole or in part, and said sum is still due. Wherefore the plaintiffs demand judgment, &c." day of the de The forms in the text, however, are intended to correspond more nearly with the facts of each case, and for that reason seem to me to be preferable. A complaint may be properly drawn, it seems, for the balance of an account, for money lent, money paid, had and received, &c., without a more particular statement. (Cudlipp v. Whipple, 4 Duer, 610.) |