p. 452Edward Rouget, Resp’t, v. Theodore Haight et al., App’lts.(Supreme Court, General Term, First DepartmentHeadnote
1. Pleading — Contract.In pleading upon a contract or agreement it is not necessary to state whether it was in writing or not.
2. Same — Motion to make definite.
The mere fact that the cause of action is stated generally and in such a mode as to show that there are items constituting it does not give a right to the remedy of having the averment made more definite and certain. It can cmly he sought when the allegations are so indefinite that the precise nature of the charge or defense is not apparent. If the charge or defense is definitely stated, although it involves details, the party should apply for a bill of particulars.
Appeal from an order requiring the counterclaim to be made more definite and certain.
The action was brought against the defendants to recover $7,500 upon a sealed instrument, which is set out in full in the complaint The answer of the defendant Theodore Haight alleges as a counterclaim that it was agreed by plaintiff and himself that plaintiff should advance to defendant sums of money not to exceed $10,000, to be used by defendant in dealing in oil and stocks, that all .purchases of such oil and stocks and all dealings therein should be at defendant’s risk and in his name, and that he should do all the necessary work in and about the same, and the plaintiff should, as his profit, receive fifteen per cent, on the amount advanced by him ; that relying upon this agreement, defendant made certain purchases of oil and called upon plaintiff to advance the money to pay for the same, which was refused; that defendant was damaged by such refusal, being unable to complete -his purchase as he had contracted to do.
The order appealed from directs defendant to amend his answer by showing whether this agreement was a written or verbal one, and to make the eleventh paragraph of the answer more definite and certain by stating the dates of purchase, the names of the sellers and the quantities of oil purchased, and by showing wherein defendant suffered damage, i. e., the items of damage.
Wyatt & Trimble, for app’lts; Samuel Cohen, for resp’t.
The defendant was not obliged to state whether the agreement upon which his counterclaim rests was in writing or not. In the language of the court of appeals, it was sufficient for him to allege the contract and breach without any specification of the evidence thereof. Tuttle v. Hannegan, 54 N. Y., 686 . The plaintiff in that case sought- to recover damages for a breach of a contract, and on the trial offered in evidence a written instrument in the form of a bond containing the agreement. It was objected that the action should have been brought thereon, but the court admitted it It was held that no error was committed, and for the reason stated.
The purchases and sales alleged to have been made under the agreement are not stated in detail, but nevertheless the cause of action is stated with sufficient definiteness to make apparent what
p. 453the defendant claims. It is stated generally, it is true, and in such a mode as to show that there are items constituting it. That, however, does not give the right to the remedy which may sometimes be invoked of making the averment more definite and certain. It can only be sought when the allegations are so indefinite that the precise nature of the charge or defense is not apparent. Here there is no doubt of the nature of the defense. The plaintiff is not, however, remediless, inasmuch as he may ask for the particulars and obtain them.
Tilton v. Beecher, 59 N. Y., 176 . In this case the border line between these remedies seems to have been reached, and illustrates how slight a difference may exist between the conditions requiring the application of the one or the other. It appears to be settled that if the charge or defense be definitely stated, although the statement involves details, it is sufficient to put the party to an application for a bill of particulars, and compels him to resort to that remedy although the result of either application would be the same. See
Jackman v. Lord, 30 N. Y. State Rep., 507;
Tilton v. Beecher,
supra.The order appealed from should, for these reasons, be reversed, with ten dollars costs and the disbursements of this appeal.
Tan Brunt, P. J., and Daniels, J., concur.