
    VICTORIO DE LA ROSA, Plff., v. SUCRERIE CENTRALE COLOSO DE PORTO RICO, Dft.
    San Juan,
    Law,
    No. 1150.
    Bill of Pabticulaes.
    Bill of Particulars — Statute of Limitations.
    1. Unless the Statute of Limitations is pleaded it is considered waived, and to enable a defendant to plead the statute the complaint must definitely state the date of the origin of an account.
    Bill of Particulars — Discretion of Court.
    2. The granting of an application for a bill of particulars is within the broad judicial discretion of the court.
    Opinion filed February 8, 1917.
    
      Messrs. Francis & Soto for plaintiff.
    
      Messrs. Dexter & Almiroty for defendant.
   HamiltoN, Judge,

delivered tbe following opinion:

Tbe complaint in tbis case is for commissions cláimed to bave been earned by tbe plaintiff in securing cane contracts for tbe defendant under a contract with tbe plaintiff dated December 23,1907, tbe commissions to be 1 cent for every hundred pounds of sugar cane secured by intervention of tbe plaintiff, tbis arrangement being confirmed in 1908 and 1909. Tbe defendant demands a bill of particulars under § 124 of tbe Code of Civil Procedure. Tbe plaintiff denies that tbe suit is on an account within tbe meaning of tbe statute, and alleges that tbe books containing tbe results of tbe contract were kept by tbe defendant itself, and are within tbe knowledge or control of tbe plaintiff.

Tbe Code of Civil Procedure of Porto Pico is substantially tbe same as that in force in California, and indeed both come from a common source. Section 124, governing tbe subject of bill of particulars, is as follows:

“It is not necessary for a party to set forth in pleadings tbe items of an account therein alleged, but be must deliver to the adverse party, within ten days after a demand thereof in writing, a copy of tbe account, or be precluded from giving evidence thereof. Tbe court or judge thereof may order a further account than tbe one delivered if it is too general, or is defective in any particular.”

Tbis is practically identical with § 454 of tbe California Code of Civil Procedure, and is to be similarly construed. Tbe Avord “account” used applies to almost every demand upon a contract consisting of several items. Long Beach City School Dist. v. Dodge, 135 Cal. 401, 67 Pac. 499. To tbe same effect is Barkley v. Rensselaer & S. R. Co. 27 Hun, 515, tbe Code of Civil Procedure of New York and that of California being mucb tbe same. Bor many purposes a bill of particulars under tbe statute is an amplification of tbe complaint. It makes tbe demand more specific and limits proof to tbe items set out. Edelman v. McDonell, 126 Cal. 210, 213, 58 Pac. 528; Chapman v. Bent, 6 Cal. Unrep. 740, 65 Pac. 961.

Tbe ground urged for a bill of particulars in this instance is that some of tbe items may antedate tbe period of limitations. It is true that tbe defense of tbe Statute of Limitations is one wbicb must be pleaded. A claim once accrued is good indefinitely unless tbe defense of tbe statute is raised. A claim is not ipso facto barred because it appears to antedate tbe period of limitations fixed by statute. Tbe statute must be pleaded. In order that this may be done, it follows that tbe complaint must be definite as to date of tbe origin of tbe claim, otherwise tbe defendant has not sufficient notice to cause him to plead tbe statute. A complaint should show not only tbe nature and character of tbe claim, but tbe period within wbicb it arose. Sutherland, Code PI. § 4455.

Tbe subject, moreover, is within tbe broad judicial discretion of tbe court, to be employed with tbe view of enabling parties to prepare their pleadings in evidence for tbe trial of tbe real issues involved, while not, on tbe other band, imposing unnecessary labor on any party. Butler v. Mann, 9 Abb. N. C. 49. Tbe granting of tbe application for tbe bill of particulars is therefore discretionary with tbe court. Tilton v. Beecher, 59 N. Y. 176, 17 Am. Rep; 337; People v. Tweed, 63 N. Y. 194.

If tbe defendant has tbe means of obtaining tbe information, there is no reason for ordering tbe plaintiff to furnish it to him. Ferry v. King County, 2 Wash. 337, 26 Pac. 538. It cannot be said, however, that in this case the pleadings show that the information is all within the knowledge of the defendant alone, as was stated on the. argument. The defendant has the right to know whether or not the plaintiff intends to include in his suit any items beyond the Statute of Limitations. The discretion of the court could not be exercised in favor of the plaintiff so as to leave the defendant in doubt as to his proper pleadings.

It' follows that the motion must be granted to the extent of requiring the plaintiff to specify within what years arose the causes of action now sued on. This does not apply to any further itemization.

It is so ordered.  