Bolognesi v. Hirzel — 58 A.D. 530

Majority

p. 530

Alessandro Bolognesi and William Hartfield, Appellants, v. Charles F. Hirzel and Henry Feltmann, Respondents.

Headnote

Bill of pmtiaulours — not required when general damage only for a breach of contract is ashed—the construction of a pleading at Special Term is not binding on the trial court.

The complaint in an action alleged, that the defendants, who were the general agents of a steamship company, made a contract with the plaintiffs, by which the latter were to take exclusive charge of the passenger business of said steamship company for one-half of the commission of five per- cent which the steamship company allowed to the defendants as general agents; that the defendants had refused.'to permit the plaintiffs to continue to act as such agents under the agreement, and that by reason “Of the conduct'of the defend: ants and - their breach of the said agreement the plaintiffs have and will suffer damages in the loss of commissions that they could have and would have made under said agreement, and their disbursements and expenses, amounting altogether to the sum of twenty-five thousand dollars.”

Held, that the plaintiffs sought to recover only the general damages arising from the breach of the contract, namely, the lost commissions and the expenses incurred by them in consequence of the breach, and that for that reason the defendants were not entitled to a hill of particulars stating thedtems and amounts of which the damages were composed and á statement of the names of the persons with their place of business, the times when, and the places where; and the nature of the transactions, in connection with which said amount was claimed to have been lost.

Semble, that a construction placed upon a pleading, by a judge presiding at Special Term, upon a motion for a bill of particulars, is not binding upon the judge who subsequently tries the issues of fact in the case.

Appeal by the plaintiffs, Alessandro Bolognesi and another, 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 19th day of November, 1900, granting the defendants’ motion requiring the plaintiffs to give a bill of particulars or to stipulate that they will confine their claim to' general damages.

Lewis 0. Freembm, for the appellants.

Alfred J. Talley, for the respondents'.

This action is brought to recover damages for the breach of a contract. The complaint alleges that the defendants. were the gen

p. 531

eral agents in the United States of the ISTavigazione Generale Itiliana, a steamship company running lines between ports of Italy and Hew York; that they made a contract with the plaintiffs by which the plaintiffs were to take sole and exclusive charge of the passenger business of the.steamship company and do various things connected therewith, and the defendants agreed to pay them one-half of the commission of five per cent, which the steamship company allowed to the defendants as general agents. It is alleged that on the 1st of February, 1900, the defendants, in violation of the agreement, refused to permit the plaintiffs to continue to act as such agents under it, and that since that time the defendants have acted as such in the place of the plaintiffs. The 13th clause alleges that by reason “ of the conduct of the defendants and their breach of the said agreement, the plaintiffs have and will suffef damages in the loss of commissions that they could have and would have made under said agreement, and their disbursements and expenses amounting altogether to the sum of Twenty-five thousand dollars.”

k The defendants demand a verified copy of the items and amounts of which the damages are composed, and a statement of the names of the persons with their places of business, the times when and the places where, and the nature of the transactions in connection with, which said amount is claimed to have been lost.

Upon the argument it was claimed by the defendants that this allegation of the complaint might possibly be broad enough to permit the plaintiffs to recover special damages. The plaintiffs, on the' contrary, insist that they only ask for and would, only be allowed to recover general damages under the 13th clause, and that, therefore, the defendants had no right to a bill of particulars. We think that the contention, of the plaintiffs is correct.

"By the terms of the contract the compensation which the plaintiffs were to receive for their services was fixed at one-half of the commissions which the steamship company paid to the defendants as general agents. That was the extent of their right to recover, and all that they could be entitled to under the contract, and in the absence of some facts tending to show that they lost something else than these commissions, it is clear that for a breach of the contract they could recover only the commissions which they would have received if they had been permitted to continue under it, together

p. 532

with such necessary expenses as they were put to because, they were no longer permitted to do- the work the contract authorized them to do. Therefore, as the plaintiffs ask nothing more than what necessarily arises from the breach of the contract, because the defendants have received what the plaintiffs would have received, no reason appears why the bill of particulars should be ordered. (Commercial Nat. Bank v. Nand, 9 App. Div. 614 .)

But it is said that the defendants are .entitled to a construction of this allegation of the complaint so that they shall not be surprised on the trial. We are not aware of any' practice which permits a party to apply at Special Term for a construction of the pleadings which shall be binding upon the-judge who tries the case upon the issues of fact, and if that were the only reason why this motion was made, clearly it should have been denied. But passing that point, we put our reversal- of the order upon the ground that the complaint asks only for general damages, and for that reason the-" defendants were not entitled to a bill of particulars.

The order, therefore, must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Yaw Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

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

Cases cited

Commercial Nat. Bank v. Hand 9 App. Div. 614 N.Y. App. Div. 1896-11-06 p. 532