Majority
p. 49Charles A. Boardman and George R. Nichols, Pl’ffs and Resp’ts, v. David A. Trotter, Impleaded With Robert H. Bruce, Def’t and App’lt. (New York Common Pleas, General Term, Filed June 3, 1889.)
Headnote
1. Bill op pabticulabs—Defenses.A bill of particulars will not be refused because the answer, or so much thereof as sets up new matter in avoidance, does not “ give color ” to the plaintiff. The old common law rule of “giving color” applied only to-one plea, that of confession and avoidance; if it was not observed, the plea was defective. But the rule, if it ever had any application to the particulars of a plaintiff’s demand in an action, has no place in our present practice. A defendant now answers but once; he may plead as many defenses as bethinks he has, however inconsistent with each other they may be.
3. Same—When bill op pabticubabs should be obdebed.
The foundation of plaintiffs’ claim is what was done by the plaintiffs as the agents of the firm of Tait &. Co., the predecessors of the defendants’' firm, in selling certain leas. The sum sued for is the balance claimed to-be due 'after deducting the proceeds of the sale. As that sale is the basis of the claim against the defendant, he ought to have the particulars of the-sale he asks for, whether he denies his liability or not.
Appeal from an order of the special term, denying a motion for a further bill of particulars.
The complaint alleges that in May, 1885, plaintiffs instructed the firm of Tait & Go., of Amoy, China, to buy for them certain teas, and put them in funds t.o do so. Tait & Co. bought certain teas, which were sent to plaintiffs. The latter claim that these were of poor quality, and that they rejected them and threw them back upon Tait &. Co., notifying the latter that they should sell the teas for their account. Such sales they profess to have made, and aver that after crediting the proceeds against their own original advances, freight and commissions, a balance of
p. 50
$1,720.15 remains due, for which judgment is asked. It is ■alleged that defendants David A. Trotter and Robert Bruce -compose the present firm of Tait & Co., and have assumed the obligations of that firm as it was constituted in 1885.
The action was commenced by attachment on April 24, 1888, and the summons was published against the defendants, Bruce and Trotter, as composing the firm of Tait &, Co. The defendant Bruce did not appear. On December 26, 1888, the defendant Trotter appeared and answered, admitting that the said “Robert H. Bruce was carrying on business as the firm of Tait & Co., at Amoy, in China, at the times mentioned in the complaint, but he denies that lie (David A. Trotter) was at such times a partner in the said firm of Tait & Co., or that he, the said David A. Trotter, or any firm of which he is or has been a member, lias since or at any time had any interest in or benefit from the said shipment of tea mentioned in the complaint, or .assumed, taken or accepted any liability whatsoever in respect thereof.”
On February 11, 1889, the defendant Trotter demanded a copy of account or bill of particulars of the plaintiff’s claim, showing (1) the dates and amounts alleged by the plaintiffs to have been paid for freight and other charges, and the name of the parties to whom such payments were made ; (2) the dates and amounts of each sale claimed to have been made, description of the property sold and the names of the purchasers.
On February 21,1889, the plaintiffs furnished an account of sales, containing about forty items, being the sales claimed to have been made for the account and at the risk of Tait & Co. This account of sales does not give the date of any sale, nor the name of any person to whom the plaintiffs, as the alleged agents of Tait & Co., paid or sold anything.
The defendant Trotter then moved for an order “requiring the plaintiffs to serve a further bill of particulars herein, giving the dates and names, as specified in defendant’s demand for bill of particulars.”
The motion for a further bill of particulars was denied at special term, the presiding judge, Van Hoesen, in his opinion holding: “If Trotter is not, nor ever was anywise interested in or responsible for the transactions of Tait & Co., it is entirely unnecessary for him to champion the ■cause of that firm; and though a bill of particulars might be ordered if Tait & Co. were moving for it, I do not think it proper to make the order • on the application of Trotter. It may be said that if it should be decided that Trotter is a member of the firm of Tait & Co., he would then be -entitled to a bill of particulars. That is true; but he must,
p. 51The defendant in his answer denies that he is or ever was interested in or responsible for the firm of Tait & Co. Hence he is not in a position to require particulars of a claim which is against said firm. Plaintiffs should not be required to discuss the names of the-purchasers of the tea.
to use the language of the old system of pleading, give color to his adversary. Whilst he denies that he has any interest in the firm of Tait & Co., I decline to order a bill of particulars to which only Tait & Co. are entitled.”
Martin & Smith. for appellant.
The plaintiffs profess to have sold these teas at private sale for account of Tait & Co. They are therefore bound to give to their principal, every detail of the transaction. Marvin v. Brooks, 94 N. Y., 75 . The reason given for denying the defendant, the-relief sought is insufficient. Whatever be the basis of a claim, the person against whom it is made, is entitled to the particulars of it, whether he admit or deny the basis. To hold otherwise is in effect to say that a person cannot have several defences to an action. Section 507 once contained a provision that the defenses, if more than one were pleaded, must not be “ inconsistent,” but 1879 this was. stricken out, and it is now the practice to plead utterly inconsistent defences. Bruce v. Burr, 67 N. Y., 240 . The-old common law doctrine of “ giving color,” even if still in vogue, does not apply. It was merely a rule that a defense-of new matter must not also traverse the declaration. A plea equivalent to the general issue, would be stricken out, as being “ double and argumentative.” 1 Chit. PL, 526.
Wm. S. Beamen, for resp'ts.
We are unable to agree with the learned judge of the court below, that the defendant should be refused a bill of particulars because the answer, or so much of it as sets up new matter in avoidance, does not “ give color” to the plaintiff.
This rule of pleading applied only to one plea, that of confession and avoidance. If it was not observed, the plea was defective. We think the rule, if it ever had any application to particulars of a plaintiff’s demand in an action, has no place in the present practice, but has gone with the system to which it belonged. A defendant now answers but once, and he may plead as many defenses as he thinks he has.
The facts which appear upon this appeal are as follows: The plaintiffs allege, in their complaint, that they instructed the firm of Tait & Co., of Amoy, China, to buy for them certain teas, and sent to them a letter of credit to draw against upon the execution of the plaintiffs’ orders. Tait & Co. thereupon bought certain teas, and sent them to the plaintiffs, who were not satisfied with them, claiming that
p. 52
"they were not of the grade ordered. They notified Tait 8c Co. that they rejected the teas, and should sell them for their account. They allege that they made such sale, and claim, that after crediting the proceeds against the money advanced, freight and commissions, a balance remains due which they seek to recover in this action. They further aver that the defendants compose the present firm of Tait <& Co., and have acquired the assets, assumed the obligations, and continued the business of Tait 8c Co. as it existed, at the time of this transaction, in 1885. The answer of the defendant, Trotter, admits that the teas were ordered •of Tait & Co., and that the advances to that firm were made by the plaintiffs; but denies that he was a member of the first firm of Tait 8c Co., or that he or any firm of. which he is or was a member, assumed any responsibility in respect to the said teas. He then alleges that the firm of Tait & Co. bought and shipped the grade and quality of teas which the plaintiffs ordered, and that in the purchase of the teas they acted as agents for the plaintiffs, and executed the •order faithfully; and further charges that the plaintiffs were never authorized to sell the teas, and did not sell them to the best advantage.
These are defenses which the defendants had a right to plead. The foundation of the plaintiffs’ claim is what was done bjr the plaintiffs as the agents of the first firm of Tait & Co. in selling the teas; the sum sued for is the balance claimed, to be due after deducting the proceeds of the sale. As that sale is the basis of the claim against the defendant, we have no doubt that he ought to have the particular’s of the sale which he asks for, whether he denies his liability or not.
The order appealed from should be reversed, and the motion granted with costs.