
    Denison D. Brewster vs. Henry L. Aldrich et al.
    Second Judicial District, Norwich,
    October Term, 1897.
    Andbews, C. J., Tobbance, Baldwin, Hamebsley and Hall, Js.
    It is the duty of the trial court to see that a complaint which contains the common counts only, is amended before the cause is heard, by striking out all of the counts to which the plaintiff’s bill of particulars does not relate.
    In an action upon the common count for work and labor, the plaintiff’s bill of particulars alleged that the work was done at an agreed price, the amount of which was stated. Held that the plaintiff might prove and recover the reasonable value of his work and labor, notwithstanding such allegation of a specific contract price.
    [Argued October 19th
    decided November 30th, 1897.]
    Action to recover for work and labor, brought to the Court of Commou Pleas iu New London County and tried to the court, Noyes, J.; facts found and judgment rendered for the plaintiff, and appeal by the defendants for alleged errors in the rulings of the court.
    
      No error.
    
    The bill of particulars filed by the plaintiff, was as follows :•
    
      H. L. Aldrich & Son.
    1889. To D. D. Brewster, Dr.
    To kalsomining rooms in mill at agreed price $400.00
    Aug. 19 To work of 6 men 1 day each, painting 15.00
    u 20 u “ u “ . 15.00
    21 15.00
    22 4 . 10.00
    Sept. 6 8 7.50
    7. . 7.50
    9 7.50
    10 1/2 . 3.75
    $481.25
    The finding stated the following facts: “ 1. The plaintiff brought his action upon the £ common counts ’ with bill of particulars, the defendants filed their answer, and the plaintiffs replied—all as on file. 2. At the commencement of the trial the plaintiff, by leave of the court, amended his complaint by striking out all the counts except the one now remaining. 3. In July, 1889, the plaintiff, who is a painter, agreed with the defendants, who are the owners of a cotton mill in Moosup, Connecticut, to do the labor of kalsomining and painting the interior of said mill, one coat, for $400, and to do a good job, one coat work. It was agreed that the work should be done while the mill was in operation, and the plaintiff examined, and had full opportunity to examine, the premises before making the agreement. 4. The work contemplated under said contract is stated in the bill of particulars, which also includes one day’s extra work painting, which was performed at the request of the defendants and which was worth $2.50. The other items of painting stated in the bill of particulars were contemplated and performed under said contract, and were not allowed as extra work. 5. The plaintiff did a good job, one coat work, considering the nature of the work required and the circumstances under which it was required to be done, and executed his part of the agreement before the commencement of this action. 6. It was agreed upon the trial that the items in the plea of set-off should be treated as payments, if the plaintiff was entitled to recover. 7. There is due the plaintiff from the defendants, after deducting such payments from the contract price, a balance of $177.54; for which amount, with $2.50 for said extra work, and interest, judgment was rendered as on file. Upon the trial the defendants claimed and asked the court to rule: (1) That the plaintiff could not recover on said contract, because the plaintiff had not proved the contract referred to in the first item of Ms bill of particulars. (2) That the plaMtiff could not recover on said contract upon the count set forth M Ms complaint. The court did not so rule, but rendered judgment as on file.”
    The defendants appealed and filed two reasons of appeal: the first, that the court erred M not sustaMing their first claim; and second, that the court erred M not sustaMing their second claim.
    
      Solomon Lucas, for the appellants (defendants).
    
      Frank T. Brown, for the appellee (plaMtiff).
   Andrews, C. J.

The bill of particulars was applicable only to the count for work and labor. It was the duty of the plaMtiff to file his bill of particulars and to strike out the other counts, before the defendant could be called upon to plead, and of the trial court to see that this was done, before hearing the cause. New York Breweries Corporation, Limited, v. Baker, 68 Conn. 337, 342.

Under the first assignment no error appears. The finding of facts shows that the plaMtiff had proved the contract referred to in the first item of Ms bill of particulars.

Nor does any error appear under the second assignment. The plaMtiff might lawfully recover on the contract, unless the count was insufficient in substance, or unless there was a material variance. Nothing appears in the findMg or in the record to show either. An immaterial variance could have no effect. The most that can be claimed is that the contract alleged was for an agreed price, and that the plaintiff did not prove the price so alleged to have been agreed upon; and the conrt rendered judgment for the reasonable value of the work and labor performed. This was not error. Rules of Practice, II, § 8, p. 12.

There is no error.

In this opinion the other judges concurred.  