Majority
p. 466James S. Virtue & Co., Resp’t, v. John Beacham, App’lt. (City Court of New York, General Term, Filed December 17, 1891.)
Headnote
1. Bill of particulars—Insufficiency.The mere fact that a bill of particulars served on demand fails to refer to one of the causes of action set forth in the complaint is not ground for a dismissal of that cause of action. If the bill of particulars is insufficient the defendant should move for a further or additional bill.
2. Contract—Sale.
An order for goods requested shipment of certain articles named, and proceeded: “ And if you please you can send me at the same time” other articles. Held, that under this order plaintiff could recover for the articles first named although he did not ship those mentioned in the second sentence.
Appeal from judgment entered on verdict of jury in favor of plaintiff.
Tecumseh Sherman, for app’lt; P. Q. Eckerson, for resp’t.
At the opening of the trial defendant moved to dismiss the first cause of action set forth in the complaint, on the ground that on demand plaintiff had served a bill of particulars which left out everything referring to the first cause of
p. 467
action. This motion was denied, and properly so, for if the bill of particulars served was insufficient the defendant should have moved for a further and additional bill. The defendant then •demanded that plaintiff elect as to which cause of action he desired to go to trial on, and plaintiff so elected the first cause of action and withdrew entirely his second alleged cause. The plaintiff had marked in evidence this order from defendant to plaintiff: “ Will you please ship me H. M. A. 100/1, 75/2,50/3-4, 5, 50/6-7, 8-9-10. And if you please you can send me at the •same time 50/1-2, 3, 4, 5 of Colonial.” The plaintiff shipped to fendant the books called for by the first sentence of the above •order and sued for their value, but did not ship the books referred to in the second sentence of such order. The defendant contends that plaintiff was compelled to ship all of the books referred to in said order, and that in default thereof he could not recover for those shipped. The two sentences of this order are so worded as to allow the plaintiff to either ship the books called for by the first and recover for their value, or to ship and recover for all the goods called for by both, but he would not be permitted to ship the goods mentioned in the second sentence and recover therefor without also shipping those called for by the first, for those mentioned in the second were to be shipped “ at the same time ” as those requested by the first The evidence to sustain plaintiff’s cause, although somewhat meagre, is ample to justify the verdict in his favor, and the same should not be disturbed.
Judgment affirmed, with costs.
Fitzsimons, J., concurs.