
    Iron Trap Rock Co. vs. Arthur J. Folleto, C. T.
    No. 79235.
    March 21, 1930.
   BLODGETT, P. J.

Heard upon demurrer of plaintiff to defendant's amended plea in set-off.

Defendant was allowed by the Court to file an amended third plea in set-off to the claim of plaintiff.

In the action plaintiff is attempting to recover from defendant, the City of Woonsocket, a largo amount claimed to be due from said city by reason of a contract between plaintiff and defendant for the delivery of crushed stone at a stated price. To this claim defendant is pleading in set-off that, admitting a contract was duly entered into between the parties, and further admitting that upon the deliveries of said stone to said city purporting to cover the materials delivered under said’contract, for which deliveries said city paid large .sums of money to plaintiff, the said bills so rendered did not reflect the correct amounts of stone alleged to have been delivered. The plea further sets forth by reason of said incorrect bills and vouchers the said city has already overpaid the plaintiff to the amount of $12. - 716.20, which said sum is now due defendant from plaintiff.

For plaintiff: Edwards & Angelí.

Por defendant:' Ovila Lambert.

The plea then sets out in particularity the amount of stone delivered as claimed by vouchers of plaintiff, the amounts actually delivered as claimed by defendant, and the tons charged over tons delivered.

The fourth amended plea of defendant sets forth a like state of facts as to a contract between plaintiff and defendant executed April 11, 1927, and that upon such contract there was paid to plaintiff $11,313.81 more than was due and owing.

As one ground of demurrer plaintiff claims no action would lie by the city against the Iron Trap Rock Co. for-overcharges on unpaid bills, yet on the other hand such overcharges would be a good and sufficient defence against said bills.

The pleas in this respect simply amount to a bill of particulars affecting the invalidity of the claim.

Plaintiff claims the pleas are duplicitous and vague and uncertain.

The only serious ground of demurrer is as to overcharges claimed in bills which have not been paid.

The language of -See. 11, Chapter 388. relating to pleas and set-off is explicit in its concluding conditions, “and for which he might maintain a suit in his own name.”

It is clear that in respect to overcharges claimed on unpaid bills the city of Woonsocket could not 'bring suit. While the distinction is more or less academic in the present action, yet it does prevent the defendant from including such overcharges in a plea in set-off. As to these an ordinary plea would suffice and the demurrer is sustained in such respect) otherwise demurrer is overruled.

All overcharges upon unpaid bills should be struck out from said pleas.  