Stabile v. Danini

⁵⁶⁸ Briscoe, J., delivered, the opinion of the Court. The appellant, Louis Stabile, sued the appellee', John Danini-, in the Superior Court of Baltimore City, to recover damages for the breach of a contract under seal, dated July 18, 1916, to provide the materials and to. perform all the work in erecting seven dwellings and two stores to be built on property located on the north side of Eastern avenue, extended, in Baltimore County, for the sum' of $14,000. The declaration avers-, that the defendant was to do everything required by the general conditions of the contract, the specifications and the drawings, that the work under the contract should be substantially completed by December 1, 1916, or pay tbe plaintiff' tbe sum of ten dollars for each and every day’s delay as liquidated damages. The declaration, then, avers, as a breach of the contract, first, that the defendant did not provide, the materials and perform the work, as set forth and required by the contract, although the plaintiff paid the defendant, the sum of $14,-000, and, second, that, the defendant did not substantially complete the work by December 1, 1916, and the plaintiff claimed the sum of five thousand dollars., as damages.

The defendant appeared to the suit, and filed a demand for a bill of particulars of the plaintiff’s claim. An answer was filed to this demand by the plaintiff, stating that the declaration was a sufficient bill of particulars. The Court below sustained the defendant’s exception to the plaintiff’s answer', and directed the plaintiff to file a bill of particulars in accordance with the1 demand on or before tbe 28th of "November, 1917. Tbe plaintiff refused to comply with the order, requiring'him to. file a hill of particulars, and the Court entered a judgment! of non pros and a judgment for the defendant for costs.

Erom this judgment the plaintiff has appealed. A motion is made to dismiss the appeal upon the ground that the action of the Conrt, in granting or refusing a demand for a bill of particulars, is within the sound discretion ⁵⁶⁹ of tho Court, and is not reviewable on appeal to tbis Court until final judgment. The rule upon this subject is not only well settled in this and other jurisdictions., but has been applied, and enforced by a number of recent, cases, in this Court, and it need not be discussed on this appeal. Warfield v. State, 116 Md. 599 ; Burk v. Tinsley, 80 Md. 100 ; Freud v. State, 129 Md. 636 .

The appeal in this ease, however, is. taken from a judgment of non pros and a judgment for the defendant, for costs. Erom such a judgment an appeal will lie.