Reincke v. Texas Co. — 150 A.D. 210

Majority

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Edgar A. Reincke, Respondent, v. The Texas Company, Appellant.

First Department,

April 12, 1912.

Headnote

Pleading—MU of particulars — action for commissions—names of customers.

In an action by the plaintiff, as assignee of a company operating in the Republic of Brazil, to recover commissions and balances due under a contract made by his assignor with the defendants to dispose of shipments of petroleum products, the defendant is entitled to a bill of particulars stating the names of the persons to whom each cargo or part thereof was sold, and the plaintiff cannot refuse to give these names upon the ground that the information is not sought in good faith where the defendant has no opportunity either to advise itself of the fact of the sale or to prepare its answer intelligently until it is advised of the names of the persons to whom its products are claimed to have been sold.

Appeal by tile defendant, The Texas Company, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 13th day of February, 1912, modifying an order entered in said clerk’s office on the lfth day of October, 1911, which required the plaintiff to furnish a bill of particulars, by striking out certain parts of said order.

William R. Begg, for the appellant.

George E. Morgan, for the respondent.

The firm of Fry, Yofile & Co. of Rio Janeiro, in the Republic of Brazil, on January 21,1910, entered into a contract with defendant whereby the former was to dispose of shipments of petroleum products made to it by the latter, paying therefor by drafts against London credits opened by the firm, each draft representing the invoice value of each separate cargo. After sales had been made the defendant was to be charged with the amount of the draft together with the disbursements and expenses incidental to the sales and was to be credited with the proceeds of the sales. The- agreement also contained the following clause: “ A separate account of each cargo, expenses, and disbursements, credits and sales, is to be kept and ren

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dered to the principals [meaning the defendant herein] in • detail at the closing out of each cargo, but in any event not less than every three months, at which time or quarterly periods a settlement of balances shall be made, as provided for in this agreement.”

Plaintiff brings this action as assignee of the claim of Fry, Youle & Co., upon two separate causes of action: (1) To recover a balance of $46,224.64, claimed to be due as the excess of the amounts of drafts, disbursements and expenses over the actual sales made; (2) to recover the sum of $14,439, due for commissions on sales made. Plaintiff having been directed to furnish a bill of particulars of his claims, obtained an order modifying such direction by striking out the requirement that plaintiff should furnish defendant with the names of the persons to whom each of said cargoes or parts thereof were sold. From such order of modification this appeal is taken.

Plaintiff resists giving these names upon the ground, among others, that the information desired is not sought in good faith; that the firm of Fry, Youle & Co. has built up a large business in Brazil and has acquired a list of some 400 purchasers of petroleum and petroleum products in Brazil, whose aggregate business with the firm amounts to over $1,000,000 annually in such merchandise alone; that defendant is about to establish a sales agency of its own in Brazil, and that it desires the list for the direct introduction of its goods there.

The defendant has by its moving papers made out a proper case for the furnishing of a bill of particulars. It is entitled to be advised of the names of the persons to whom the sales are alleged to have been made upon which plaintiff claims both a balance due and commissions. Plaintiff cannot by simply stating the date of a sale and its amount close the door to defendant’s inquiry into the good faith or exact particulars of the sale by refusing to give the name of his vendee. Defendant has no opportunity either to advise itself of the fact of the sale or prepare its answer intelligently until it is advised of the names of individuals or firms to which its goods are claimed to have been sold. Dor could plaintiff upon the trial resist the disclosure of the names of these purchasers, as he claims he could do, for the name of a vendee is as much an essential

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element of the account of the sale as the date or the amount thereof. Had plaintiff’s assignors desired .to insure the secrecy of their list of' customers they should have 'guarded it by some appropriate provision in their agreement. .

The order appealed from must, therefore, be reversed, with ten dollars costs, and the application to modify the original order for a bill of particulars denied, with ten dollars costs.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.