date on appeal from a judgment for defendant rendered after overruling a demurrer to the an

swer.

2. Gen. St. 1902, § 1119, which provides that no action against a municipal or other corporation for a personal injury shall be brought but within one year from the date of the injury, is retrospective so far as it applies to existing rights of action, and is not unconstitutional when applied to a right of action for a personal injury occurring January 11, 1902, the limitation, though adopted June 11, 1901, not going into force until July 1, 1902.

3. The revision of 1902 (Gen. St. 1902, § 1119), which provides that no action against a municipal or other corporation for injury to the person shall be brought but within one year from the date of the injury, applies to actions against any corporation, public or private, for an injury to the person, and supersedes Pub. Acts 1897, p. 883, c. 189, allowing six years within which to sue for a personal injury, except that an action against a municipal or railway or street railway corporation must be brought in one year.

Appeal from Superior Court, New Haven County; Milton A. Shumway, Judge.

a

Action by John F. Fitzgerald against the Scovil Manufacturing Company. From judgment for defendant, plaintiff appeals. Affirmed.

This is an action to recover for injury to the person. The complaint alleged that the date of the injury was January 11, 1902. Defendant set up in its answer that the action was not brought within one year from the date after the injury. The demurrer to the answer was overruled, and, on plaintiff refusing to plead further, judgment for defendant was rendered.

John O'Neill and William Kennedy, for appellant. Lucien F. Burpee, for appellee.

**

BALDWIN, J. This action was brought on September 17, 1903, and the complaint counts on an injury which is alleged to have occurred on January 11, 1902. On July 1, 1902, the revision of 1902 of the General Statutes went into effect. It provides (section 1119) that "no action against a municipal or other corporation to recover damages for injury to the person * shall be brought but within one year from the date of such injury." The law previously existing had given six years for suit on such a cause of action as the complaint alleged, unless it were one against a "municipal corporation, railway or street railway corporation," in which case only one year was allowed. Pub. Acts 1897, p. 883, c. 189. The date of the injury alleged in the complaint was, when pleaded, immaterial, but became material on the filing of the answer. Gould on Pleading, III, § 70. It should, therefore, on the record presented on appeal, be treated as the true date.

Gen. St. 1902, § 1119, was prospective in so far as it applied only to future actions. It was also retrospective in so far as it might apply to existing rights of action. As to these it was not unconstitutional, provided in each case a reasonable time, taking all the

circumstances into consideration, were given for the commencement of suit before the bar took effect. Terry v. Anderson, 98 U. S. 628, 24 L. Ed. 365; Wheeler v. Jackson, 137 U. S. 245, 255, 11 Sup. Ct. 76, 34 L. Ed. 659. In the case now before us the plaintiff could have brought his action at any time before January 12, 1903. This gave him more than six months for that purpose. It cannot be pronounced, as matter of law, unreasonable to require him to elect within that period whether to sue or not, particularly when the limitation in question, while not going into force until July 1, 1902, had been adopted June 11, 1901. Gen. St. 1902, p. 1183.

It is contended that the revision made no alteration in the former law, but was merely designed to condense the form of expression, and so applies only to municipal, railway, or street railway corporations, or to municipal and other corporations of a public or quasi public character. Its language is too plain to admit of such a construction. The change effected was one of substance, and it must be presumed that the General Assembly had it in view, both when the revision was adopted in 1901 and when it was confirmed in 1903. Gen. St. 1902, p. 1183; Pub. Acts 1903, p. 116, c. 153. That it was a change not inconsistent with the legislative intent is evidenced by the amendment to section 1119, enacted in 1903, by which it was made applicable to all actions for injuries to the person. Pub. Acts 1903, p. 114, c. 149.

It was made one of the grounds of demurrer that section 1119 was unconstitutional, because it was legislation favoring a particular class of persons; but, as this point was not presented in argument before us, it is unnecessary to consider it.

There is no error. The other Judges concurred.

STATED-EVIDENCE-ADMISSIBILITY.

1. Under Gen. St. 1902, § 627, which provides that common counts may be used for the commencement of an action in all cases when any of the counts is a general statement of the cause of action, and that, before any default shall be entered or judgment rendered thereon, plaintiff shall furnish a bill of particulars, common counts for money paid and for work performed for defendant and the bill of particulars applicable to the counts are not demurrable for failing to allege that the money was paid and the work performed at defendant's request, and the remedy is by motion to make the bill of particulars more specific.

2. The original complaint contained the common counts for money paid and for work performed. A bill of particulars applicable to the counts was furnished. A count for account stated was added by amendment. The bill of particulars previously filed contained an account of plaintiff with defendant, with the items of it,

and the sum of the items, which sum was the precise sum named in the count for account stated. Held that, in the absence of motion or demurrer to the count or bill of particulars raising the question whether the bill of particulars was applicable to the count, or together stated a cause of action for account stated, the court properly ruled that the count was a part of the complaint, so as to enable plaintiff to allege in his reply a special contract and a settlement of the amount due thereunder.

3. Where, in an action on an account stated for work done, a letter written by defendant after receiving from plaintiff a bill for the amount claimed, together with certain machinery sent by plaintiff at defendant's request to the effect that he returned the machinery to plaintiff as defective, that he failed to see why any bill had been sent, as the machinery proved useless, and that plaintiff's foreman had admitted that the work had not been properly done was received in evidence as rebutting any inference of an account stated which might arise from defendant's silence after receiving the bill, it was not error to admit in evidence plaintiff's letter in reply, stating that the machinery and the bill had been sent at defendant's request and on his agreement to pay the amount, and that there had been no admission that the work had been done improperly.

4. Where, in an action for work done, defendant testified that he called at plaintiff's factory, and told the secretary that the work was not satisfactory, and that the bill ought not to be paid, and that the secretary replied that plaintiff ought not to have undertaken the work, as it did not have appliances to do the work properly, it was not error to permit the secretary, after having had his attention called to the interview, to testify in rebuttal that defendant wanted to settle the matter on payment of a specified sum, thereby showing that no such conversation as testified to by defendant occurred.

Appeal from Court of Common Pleas, New Haven County; Leverett M. Hubbard, Judge. Action by the Hoggson & Pettis Manufacturing Company against Clarence M. Sears. From a judgment for plaintiff, defendant appeals. Affirmed.

The original complaint contained the common counts, with the omission of paragraph 9 for account stated, and also of paragraphs 7 and 8, as given in form 85. The indebtedness alleged under each paragraph was $178.50. During the term to which the action was made returnable the plaintiff filed the following bill of particulars:

C. M. Sears to The Hoggson & Pettis Mfg. Co. Dr. 1902.

..........

75

Feb. 13. To express charges on castings from Brown & Sharpe... Apr. 8. To work on gauge parts............... 177 75 Amount due The Hoggson & Pettis Mfg. Co. $178 50 The defendant thereupon demurred to paragraph 2 of the complaint, alleging that the plaintiff had laid out and expended money for the defendant to said amount, and to that part of the bill of particulars applicable to said paragraph, upon the grounds, in substance, that they contained no allegation of any debt or duty owed by the defendant to any third person, or that the defendant requested the plaintiff to pay, or that it was the right or duty of the plaintiff to pay, money to any third person for the defendant's benefit; and also demurred to paragraph 5

of the complaint, which alleges that the plaintiff has performed work and rendered services for the defendant of the price and value of said sum, and to that part of the bill of particulars applicable to said paragraph, upon the ground, in substance, that they contained no allegation that the defendant requested the performance of the work, or that the "gauge parts" were ever delivered to the defendant, or that the defendant was liable to the plaintiff for any work he might have done. The court having overruled this demurrer, the defendant filed an answer, alleging, in substance, that the plaintiff entered into an oral contract with the defendant to manufacture certain instruments for the measurement of minute differences of distance, and to deliver 50 of them in one week and a half after they were ordered; that the plaintiff failed in certain described respects to perform said work according to said contract; and that the services rendered by the plaintiff were of no value. To this answer the plaintiff replied, in substance, that about January 1, 1902, the plaintiff and defendant entered into a contract whereby the plaintiff was to furnish the labor of its employés and the use of machinery in attempting to manufacture and assemble certain parts of the instruments described in the answer at the price of 50 cents an hour for each employé engaged upon said work, the defendant to have the right to superintend and direct said work; that the plaintiff furnished its workmen and machinery, and the work of experimenting and endeavoring to perfect said instrument was carried on under the personal direction of the defendant until about the 8th of April, 1902, when the defendant desired to stop said work, and it was then agreed between them that the defendant, in settlement of the plaintiff's account, should pay to the plaintiff as the cost and expense incurred in so furnishing workmen and machinery the sum of $177.75 in lieu of the charge of 50 cents an hour for each workman, as before agreed; and that said account, so stated and agreed upon, was the cause of action stated in the complaint and bill of particulars. The plaintiff afterwards, by leave of court, amended the complaint by inserting as a paragraph of the common counts the following: "(7) And said sum was found to be due to the plaintiff from the defendant on an account then and there stated between them;" and the defendant amended his answer by denying the allegations of said paragraph 7 and the bill of particulars applicable thereto, if said count should be held to be a part of the complaint. The defendant thereafter demurred to the plaintiff's reply upon the grounds, among others, that it was a departure, since it did not strengthen or sustain either of the only two grounds of action stated in the complaint, namely, for money laid out and expended for the defendant and for work and labor performed for the defendant, but set up a new cause of action for account stated,

not contained in the complaint, and that the matter set up in the reply was such as could not properly be stated as part of a reply, but could only properly be alleged as a part of the complaint. This demurrer was overruled, and the defendant then denied the averments of the reply. The overruling of these two demurrers are among the reasons of appeal assigned.

Frank S. Bishop, for appellant. Hobart L. Hotchkiss, for appellee.

HALL, J. (after stating the facts). The trial court did not err in overruling the demurrer to the complaint and bill of particulars. That the form of complaint denominated the "common counts" in the rules under the practice act is so far a sufficient complaint as not to be demurrable after the plaintiff has filed a proper bill of particulars of the items of the claims described in the several common counts, is now a matter of statute. Section 627, Gen. St. 1902, provides that such common counts may be used for the commencement of an action in all cases when any of the counts is a general statement of the cause of action, but that "before any default shall be entered or judgment shall be rendered thereon the plaintiff shall furnish a bill of particulars of the items or items of his claims." It is true that suits may be commenced by the common counts, in which the real cause of action is such that, to enable the parties to plead correctly and properly try the case, the plaintiff will be required to file by way of amendment a substitute complaint or complete statement of the facts showing the cause of action; and when this is done the common counts drop out of the case. Kelsey v. Punderford, 76 Conn. 271-275, 56 Atl. 579. But it was manifestly intended by the language of the statute that in some cases the common counts might remain in the pleadings as a sufficient form of complaint after the plaintiff had filed only a sufficient statement of the items of his claims. In this class of cases the office of the bill of particulars is not to supply some necessary allegation of the complaint without which it would be insufficient upon demurrer, but to furnish a sufficiently particular statement or bill of the items of the claims which are generally described by the allegations of the several common counts. Kelsey v. Punderford, supra. Such bill of particulars generally gives the date, quantity, character, price, or value of the items of plaintiff's claims. The facts of a case may be such as to require even a more detailed statement in the bill of particulars, and may be such as to justify an order by the trial court that such bill of particulars states whether money alleged to have been expended or work alleged to have been performed for the defendant was paid or performed at the defendant's request. In such cases, however, neither the complaint nor bill of particulars would be open to demurrer

because of the absence of such statement of request. The remedy would be by motion to make the bill of particulars more specific. In the present case, the plaintiff having filed a bill of particulars containing items applicable to the counts for money paid and expended and work performed for the defendant, the complaint and bill of particulars were not demurrable, even if, upon motion, the bill of particulars might properly have been required to be made more specific.

Upon the demurrer to the reply and in his claims of law in the argument the defendant contends that the complaint contains no count for account stated, since, as he claims, that count, though added by amendment, was at once stricken out, because the bill of particulars which had been filed was not applicable to it. The count for account stated, when so added by amendment, became an allegation that on or before the 11th of September, 1902, the sum of $178.50 was found to be due to the plaintiff from the defendant on an account then and there stated between them. This was an averment that in a proper matter of account a settlement had been made, and a balance ascertained and struck by the parties. It was not necessary that the count itself should state the items of the account, nor that it should correctly state the balance agreed upon. Proof of an acknowledgment by the defendant that a certain sum was due the plaintiff at a certain time in settlement of the account was sufficient to support the averment of the complaint. 1 Swift's Dig. pp. 577-704. The bill of particulars, although it was filed before the count for account stated was added, contains an account of the plaintiff with the defendant, with the items of it, and the sum of the items, and a statement that such sum, $178.50 (being the precise sum named in the complaint in the count for account stated), is the amount due the plaintiff; and the court has found that at a settlement between them, after the work done by the plaintiff had been performed, the defendant agreed that there was due the plaintiff $177.75 as the cost of said work and use of machinery, and that the defendant then promised to pay said sum within a short time. The defendant has made no attempt by motion, or by demurrer to the count for account stated, or bill of particulars, to raise the question of whether the bill of particulars is applicable to that count, or whether they together sufficiently state a cause of action for account stated. It was held in Hatch v. Boucher, 77 Conn. 347, 59 Atl. 422, that the item, "Balance due for meats furnished to date," appearing under a certain date in a bill of particulars, was sufficiently specific as an item applicable to the count for account stated. The trial court correctly ruled that the count for account stated remained in the pleadings as a part of the complaint. If there was any technical error in overruling the other grounds of the demurrer to the reply, we are unable to dis

cover how it could have embarrassed the defendant in the trial, or how it could have affected the final judgment; since upon the facts found the plaintiff was entitled, upon the counts for work performed and money expended, to recover the amount of the judgment rendered.

It is found that a few days after the account had been settled, and the defendant had promised to pay the sum of $177.75, as before stated, and after he had received from the plaintiff a bill for said amount, together with the parts of said instrument made by the plaintiff, and certain tools and dies, all sent by the plaintiff at the defendant's request, the defendant mailed a letter to the plaintiff, prepared by the defendant's counsel, in which the defendant stated, among other things, that he had returned said "parts" to the plaintiff as defective; that he had received the bill for $177.75, but failed to see why any bill had been sent to him, as the "parts" were absolutely worthless, and that plaintiff's foreman had admitted that the work had not been properly done. This letter was admitted in evidence against the plaintiff's objection, having been offered by the defendant as a part of the correspondence between the parties, as rebutting by its statements any inference of an account stated which might arise from defendant's silence after receiving the bill, and as showing that, plaintiff having thus abandoned its work on the gauge parts, they were returned to plaintiff to be completed. The plaintiff, against the defendant's objection, was thereupon permitted to lay in evidence its letter in reply, in which it was stated, among other things, that said parts and said bill had been sent at the defendant's request, and upon defendant's agreement to pay said amount, and that there had been no admission by plaintiff that the work had been improperly done. The defendant has no cause to complain of such ruling. Having admitted the defendant's letter, the court properly received with it the plaintiff's reply for the purpose for which it was offered, namely, of showing the plaintiff's dissent expressed to the defendant, from the statements of the defendant's letter. For the purpose of proving that the plaintiff had not done its work properly, the defendant testified that he, in company with one Griffin, called at plaintiff's factory, and told Mr. Kennedy, the secretary, that the work was not satisfactory, and that he did not think that he ought to pay the bill, and that Kennedy replied that the plaintiff ought not to have taken the contract to do any of the work, as the plaintiff did not have the machinery and appliances to do the work properly. In rebuttal Kennedy was called as a witness, and, his attention having been called to this interview, was asked to state what was said. He replied, "Mr. Sears [the defendant] wanted to settle the matter on payment of $50." The defendant's objection and motion that this answer be stricken out

upon the ground "that anything in the nature of a peace offering is privileged, and not admissible in evidence," was overruled. As we read the record, this question was asked and the answer was given not for the purpose of proving an admission of liability by the defendant to the amount of $50, but only for the purpose of contradicting the testimony of the defendant by showing that no such conversation as that testified to by the defendant occurred at the interview at which Griffin was present, and Kennedy's answer was admitted simply for that purpose. Under these circumstances, even if it can be said that it appears sufficiently clear from Kennedy's answer that the defendant's proposal of settlement was such an offer of compromise as will be presumed to have been made without prejudice, the ruling of the court does not furnish sufficient ground for granting a new trial.

The decision of the trial court that Kennedy had authority to make the agreement of settlement with the defendant is amply sustained by the uncontroverted facts.

Other rulings complained of in the appeal require no discussion.

There is no error. The other Judges concurred.

LEONE v. KELLY.

(77 Conn. 569)

(Supreme Court of Errors of Connecticut. March 9, 1905.)

ANIMALS-LIABILITY FOR DAMAGES DONE BY

DOG-SUFFICIENCY OF COMPLAINT

-SCIENTER.

1. If the allegations of a complaint show that the action is based on a public statute not penal, it is sufficient, without counting on or reciting the statute.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Statutes, § 378.]

2. Gen. St. 1902, § 4487, fixing the liability of the owner or keeper for damages done by a dog, is remedial, and not penal, and hence the complaint in an action founded thereon need not mention the statute.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Statutes, § 378.]

3. The complaint in an action under Gen. St. 1902, § 4487, making the owner or keeper liable for damages done by a dog, need not allege scienter, or other facts dispensing with the necessity of scienter.

Appeal from Superior Court, New Haven County; Ralph Wheeler, Judge.

Action for personal injuries caused by the bite of a dog, by Jacinto Leone, guardian of Ralph Wheeler, Jr., an infant, against Daniel F. Kelly. From a judgment for plaintiff, defendant appeals. Affirmed.

Samuel E. Hoyt and Isaac Wolfe, for appellant. Edwin S. Thomas, for appellee.

PRENTICE, J. The plaintiff is a minor, who sues by his guardian and next friend. He claims to have established upon the trial

to the jury that while he was lawfully traveling upon the highway he was bitten by the defendant's dog. The defendant thereupon claimed to the court that the action, by reason of the averments of the complaint, was one at common law, and asked the court to give the jury instructions upon the subJect of scienter and contributory negligence, which he claimed to be appropriate to that form of action. The only reasons of appeal which are pursued in the brief of his counsel relate to the refusal of the court to give these instructions. It is conceded by them that none of the reasons of appeal are well founded unless the complaint is to be regarded as one at common law. They contend that it must be so regarded, since the statute is neither counted upon nor recited therein. Gould on Pleading, c. 3, § 16, note. Whatever may have been the rule formerly, and as applicable to common-law declarations, it is not now, and under our practice act, essential to the sufficiency of complaints framed for recovery upon a domestic public statute, not penal, that the statute be either counted upon or recited. It is enough if the averments of the complaint are such as to show that the action is brought upon the statute, and not otherwise. Griswold v. Gallup, 22 Conn. 208; Clark v. North Muskegon, 88 Mich. 308, 50 N. W. 254; McHarg v. Eastman, 35 How. Prac. 205; Hance v. Wabash Western Ry., 56 Mo. App. 476; Ervin v. State ex rel., 150 Ind. 332, 48 N. E. 249; Denver, etc., R. Co. v. De Graff, 2 Colo. App. 42, 29 Pac. 664; Morrisey v. Hughes, 65 Vt. 553, 27 Atl. 205. This principle has even been extended to apply to actions upon penal statutes. Reynolds v. Chicago & Alton R. Co., 85 Mo. 90; State v. Owsley, 17 Mont. 94, 42 Pac. 105, Bliss on Code Pleading, 181. In Broschart v. Tuttle, 59 Conn. 2, 21 Atl. 925, 11 L. R. A. 33, the question of the propriety of this extension was raised, but not passed upon. Our statute (section 4487, Gen. St. 1902) regulating the liability for damage done by dogs is a remedial and not a penal one. Sedgwick on Construction, etc., 32; Neal v. Moultrie, 12 Ga. 104.

The present complaint was unmistakably framed upon the statute. By no possibility is it susceptible of a double character. It sets out the precise facts which bring the case within the statute, and none others, and thus pleads it. Gould on Pleading, c. 3, § 16, note. It does not state a cause of action at common law. Averments essential to such an action are wholly absent. At common law an allegation of scienter, or an averment of other facts dispensing with the necessity of its presence, was essential. Wooff v. Chalker, 31 Conn. 121, 81 Am. Dec. 175; Beckett v. Beckett, 48 Mo. 396; Mareau v. Vanatta, 88 Ill. 132; Spring Co. v. Edgar, 99 U. S. 645, 25 L. Ed. 487; Buxentine v. Sharp, 3 Salk. 12; 1 Chitty's Pleading, § 72; 2 Cyc. 368 et seq. This complaint contains neither. There is no error. All concur.

(77 Vt. 234)

OSGOOD. CENTRAL VERMONT R. CO. (Supreme Court of Vermont. Orange. March 9, 1905.)

RAILROADS-CONTRACTS-CONTRACT TO INDEM

NIFY AGAINST NEGLIGENCE-STATUTORY

PROHIBITION-PUBLIC POLICY.

1. Where there is a promise to do two things, one legal and the other illegal, the promise to do the legal act will be enforced, and the promise to do the illegal disregarded, irrespective of whether there are two distinct promises, or whether there is one promise that is divisible, or whether the consideration for the two promises is entire or apportionable.

[Ed. Note. For cases in point, see vol. 11, Cent. Dig. Contracts, §§ 701-712.]

2. V. S. 3924, provides that, when any engineer or other agent of a railroad is guilty of negligence whereby an injury is done to a person or corporation, he shall be imprisoned or fined, but that the statute shall not exempt a person or a corporation from an action for damages. Plaintiff, to whom defendant railroad company leased a piece of its roadway for a site for a coal and lumber shed at an annual rental, agreed to indemnify defendant from all liability for loss or damage to himself, his property or servants, occasioned by the negligence of defendant's servants. Held, in an action for negligently running an engine against a shed built on the premises pursuant to the lease, that the implied inhibition to contract did not extend to injuries in which the public has no interest, and that part of the contract covering the injury, being severable from the rest of the contract of indemnity, was enforceable.

3. The promise of indemnity involved in the action was not unenforceable as contrary to public policy.

Exceptions from Orange County Court; John W. Rowell, Judge.

Action by Arthur G. Osgood against the Central Vermont Railroad Company. Judg. ment in favor of plaintiff, and defendant brings exceptions. Judgment reversed.

Argued before ROWELL, C. J., and TYLER, MUNSON, START, WATSON, HASELTON, and POWERS, JJ.

M. M. Wilson and E. M. Harvey, for plaintiff. C. W. Witters, for defendant.

ROWELL, C. J. The case is this: The defendant leased to the plaintiff for five years a piece of its roadway for a site for a coal and lumber shed, at an annual rent of $15, payable in advance, in consideration of which the plaintiff agreed to pay said rent, and to indemnify and save harmless the defendant from all liability for loss, damage, or injury to himself, his property, servants, or agents, while upon or about said premises, occasioned by fire or otherwise, resulting from the negligence of the defendant, its servants, agents, or in any other manner. The action is for negligently running an engine and a car off a spur track and against the plaintiff's shed, built upon said premises pursuant to said lease, thereby wrecking the same, and breaking and destroying divers wagons and other carriages stored therein.

The plaintiff claims that said contract is in contravention of sections 3924 and 3926 of