
    Robbins et al. v. Butler.
    1. Construction op Civil Code — Itemized Statement op Account. Section 67 of the Civil Code, which provides that in suit upon an account, when not set out in the complaint, an itemized statement thereof shall be furnished within five days after demand therefor, is directory as to time. And it is sufficiently complied witli when the trial court, exercising a reasonable • discretion, finds that the account delivered is reasonably specific, that a satisfactory excuse is given for not furnishing it within the statutory period, and that defendant had ample time, after receiving it, to prepare for trial.
    3. Motions por New Trial— Exceptions. — Prior to the code amendments of 1SS7 it was necessary to duly save an exception to rulings upon motions for a new trial; interposing the proper objection was not alone sufficient.
    
      Appeal from District Court of A rapahoe County.
    
    Hugh Butler, who was plaintiff below, brought this action to recover reasonable attorney’s fees for services rendered appellants, who were defendants below. The complaint contained a general allegation as to the suits prosecuted and defended, and other professional labor performed. Defendants’ answer, after denying the averments of the complaint, sets up, as separate and distinct defenses — First, that the services were reasonably worth but $500, which sum had been paid plaintiff, and received and accepted by him as full satisfaction; second, that after the rendition of the services mentioned plaintiff and defendants agreed as to the amount that should be paid, which amount was $500, and was paid and received as full satisfaction. Plaintiff replied to these defenses. Defendants also made demand under section 07, Code of Civil Procedure of 18S3, for an itemized Statement of plaintiff’s account. This statement was furnished, but not within five days from the date of demand therefor.
    A motion was made before trial for an order precluding plaintiff from offering evidence to prove the account. This motion was denied. At the trial the same objection was taken when evidence was offered, hut it was again overruled. Plaintiff recovered a judgment for 81,000, from which the present appeal was taken.
    Section 67, above mentioned, reads: “It shall not be necessary for a party to set forth in a pleading the items of an account therein alleged; but he shall deliver to the adverse party, within five days after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof. The court, or judge thereof, may order a further account when the one delivered is too general, or is defective in any particular.”
    Mr. Oscar Reuter, for appellants.
    Mr. A. B. McKinley and Mr. T. D. Y¡T. Yonley, for appellee.
   Chief Justice Helm

delivered the opinion of the court.

Appellants’ objection, resting upon the sufficiency of the pleadings, must be overruled. In the first place, it nowhere appears in the record that they reserved any exception to the ruling of the court in denying their motion for judgment upon the pleadings. At the time this cause was tried, in order to secure a review by this court, it was not only necessary that objection be made, but also that exception be duly saved. But secondly, if we assume that the exception in question was taken, and proceed to consider the sufficiency of the pleadings, counsel’s challenge must still be denied. Upon the most liberal interpretation the answer contains but two new defenses, and these defenses were sufficiently traversed by the replication. These traverses constitute separate paragraphs in the latter plea. The statute did not require that they should be numbered, or that each should in words specify the particular defense to which it related.

“Nor is the remaining objection of appellants, well taken. From the record before us we are bound to assume that the itemized statement of account furnished defendants in response to their demand was sufficiently specific; also, that it was received by them within ample time before the trial to make preparation looking to its disproval. The order denying the motion to preclude evidence by plaintiff in support of his claim contains the following language: It appears to the court that a sufficient copy of the account, or bill of particulars, or matters alleged in the complaint, has been served upon the said defendants in time to enable them to prepare for trial of this cause according to the assignment thereof, and that a reasonable excuse has been shown for not complying with the demand within the five days provided by statute.” There is nothing in the record that conflicts in the least with the conclusions thus announced. Moreover, the record does not disclose even a claim by defendants that they were in any way injured by the delay in responding to their demand.

The sole question presented in this connection, therefore, is, did the failure of plaintiff to furnish an itemized statement till after the expiration of five days from the date of demand therefor deprive the court of discretion, and absolutely inhibit the reception of evidence to establish the cause of action?

Different minor tests have been adopted by courts in the attempt to formulate general rules by which to determine whether statutes are mandatory or directory. That certain statutory provisions were intended to be directory merely, and should be so held, is unquestionable; but too much caution cannot be exercised by courts in distinguishing between the essential and the non-essential. The danger is that things deemed essential by the legislative mind will not appear so to the judicial mind, or vice versa, and that thus the legislative will may be defeated. An indiscriminate application of any one of the minor recognized tests, where the strict letter of the statute might seem to warrant it, would in many cases he grossly erroneous. For instance, the rule that where an act is to be performed within a given time, and a penalty is provided for its non-performance, the statute is mandatory, may be qualified by other language or circumstances showing clearly that time is not of the essence of the provision, and that in this respect it is directory. This we conceive to be the correct view of the statute under consideration, and a proper qualification of the above rule, which is relied upon by counsel for appellants.

It will he observed that the bill of particulars is to be furnished within a specified number of days after demand, not within a designated period before trial. It may be received one day or six months prior to the trial of the cause, but, if delivered within five days after demand, the strict letter of the statute is complied with. As we shall presently see, amendments of defective statements are provided for by the statute itself. To hold that a statement of account so imperfect as to practically give no information may be amended by leave of court on the day of trial, but that the court is absolutely without discretion to permit proof in support of a full and satisfactory statement delivered months before trial, merely because it was received on the sixth instead of the fifth day after demand, is an absurdity to be avoided, if legally possible.

The fundamental rule of interpretation, in our judgment, furnishes an avenue of escape. We think a proper regard for the legislative design forbids such a construction of the statute as will bring this incongruity within its purview. First, the intent of the legislature to give courts a large discretionary power in dealing with pleadings and procedure generally is evidenced by the repeated code provision commanding a liberal construction in the interest of justice. And the further intention to invest courts with some discretion and authority in connection with the particular subject under consideration, which pertains to the department of pleading, is expressly shown by the last clause of said section 67: “The court, or judge thereof, may order a further account when the one delivered is too general, or is defective in any particular’.” And second, the necessity for inserting an itemized statement or bill of particulars in the complaint is dispensed with; but, to shield defendant from harm through the resulting disadvantage, plaintiff is required to furnish such a statement, reasonably sufficient to apprise him of the specific items constituting the claim, so that he may not be surprised, and may arrange his defense fully thereto. But no possible injury can result to defendant if the statement be delivered on the sixth or" seventh day after demand, provided ample time remains to prepare for trial. The period prescribed within which this statement shall be delivered is therefore not of the substance or essence of the provision. We cannot doubt but that the legislative intent is fairly complied with if the delivery take place so as to leave defendant sufficient time for preparation. In our judgment the spirit of the provision is not violated by the admission of evidence when the court, exercising a reasonable discretion, finds, as in the present case, that the account delivered is sufficiently specific; that defendant has had ample time to prepare for trial; and that a satisfactory excuse is given for not delivering the account within five days after demand.

• The judgment of the court below is affirmed.

Affirmed.

Mr. Justice Elliott, having presided at the trial below, did not participate in this decision.  