United States Land & Investment Co. v. Mercantile Trust Co.

Majority

p. 187

The United States Land & Investment Co., App’lt, v. The Mercantile Trust Co., Resp’t.

(Supreme Court, General Term, First Department,

Filed November 7, 1889.)

Headnote

Specific performance—Bill of particulars.

Where an action was brought to compel a specific performance of an agreement by defendant to certify plaintiff’s bonds, and for damages for a refusal so to do, and the complaint alleged that plaintiff had entered into contracts and enterprises and contracted obligations greatly to its advantage and from which it might reasonably expect to realize large profits had defendant performed its agreement, and that from defendant’s failure it had suffered great loss, Held, that defendant was entitled to a bill of particulars stating the alleged contracts and enterprises, and what profits were expected therefrom.

Appeal from an order directing the plaintiff to give a bill of particulars.

Walter 8. Cowles, for app’lt; Allan McCulloh, for resp’t.

This action was brought to compel a specific performance of an alleged agreement relative to the certification of the plaintiff’s bonds by the defendant, and to recover damages suffered in consequence of the defendant’s alleged refusal to perform the agreement. The complaint, after stating the making of the agreement suggested, and compliance with its terms, alleges that the plaintiff has entered into large and important business contracts and enterprises, and contracted large pecuniary obligations, which were contracts and enterprises greatly to its advantage, and from which it reasonably expected to, and would, realize large pecuniary profits if the defendant had performed its contract; and, further, that by reason of the defendant’s refusal to perform its part of the contract the plaintiff had been, and was, subjected to great pecuniary loss and damage. Upon these allegations the learned justice in the court below thought the defendant entitled to a bill of particulars, as sought, of these contracts and enterprises, and of what profits were expected therefrom.

The learned counsel for the respondent seems to contend that the action being one seeking only to enforce the specific performance of a contract, the application for the bill of particulars should have been denied in loto, urging in reference to the prayer for damages that the plaintiff would, after an adjudication upon his demand for equitable relief, seek by subsequent proceedings in the action to obtain damages for the defendant’s persistent and continued breach of the contract, damages which it would have sustained; and this to avoid multiplicity and circuity of action. But this view cannot be sustained. A bill of particulars is proper in all descriptions of actions where the circumstances are such that justice demands the party should be informed of the matters for which he is to be tried with greater particularity. Tilton v. Beecher, 59 N. Y., 176 , 184; Dwight v. The Germania Life Ins. Co., 84 N. Y., 493 , 505; Cunard v. Francklyn, 111 N. Y., 511 ; 19 N. Y. State Rep., 641.

Without considering, therefore, the discretionary element involved in directing the order, it is quite apparent that it should

p. 188

have been granted. The defendant should not be subjected to a trial or called upon to answer charges so indefinite as those contained in the complaint and to which reference has been particularly made; nor should the defendant be required to go to trial as long as the claim for damages remains without a full exposition of all the elements of which they are composed. The whole subject, that view being carried out, would be before the trial court, which could award damages if the plaintiff’s cause of action was sustained in that respect, and avoid circuity of action by not sending the subject of damages to a referee for investigation. The direct mode of disposing of the issues presented by the pleadings is that which the courts will favor invariably, as the most speedy and the least expensive way to determine them.

For these reasons the order appealed from should be affirmed, with ten dollars costs and the disbursements.

Daniels, J., concurs.