Isaac v. Wilisch — 53 N.Y. St. Rep. 360

Majority

p. 360

Hermann Isaac, App’lt, v. Robert Wilisch et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed May 12, 1893.)

Headnote

1. Bill of pabticulabs—Bbeach of cohteact.

Plaintiff was defendant’s sales agent in the United States, and brought suit for their failure to deliver goods on orders forwarded by him and alleged to have been accepted by defendants. Annexed to the complaint, as an exhibit was a schedule of the orders and their numbers, and of the amount of each order and its value. fieM.that a hill of particulars of the names and addresses of the persons to whom plaintiff made the alleged sales was properly required of him.

2. Same.

Plaintiff claimed to have an exclusive contract with defendants for the sale in the United States of their goods, and brought suit against them for an alleged violation of such contract, in that they sold goods to other parties, and for the violation of a subsequent agreement whereby plaintiff was to forbear to prosecute the claim, in consideration of which defendants were to pay him a certain percentage of the total goods before that time shipped. Held, that plaintiff should not he required to furnish defendants with a bill of particulars of the names of the parties other than the plaintiff from whom defendants took orders and to whom they sold and delivered goods, as such information was thoroughly with defendants.

3. Same.

In an action for breach of an agreement arising from short deliveries and defects in quality, whereby, in consideration of plaintiff’s forbearing to prosecute such claim, defendants agreed to pay him a. certain sum, Held, that defendants’ demand for a bill of particulars of the numbers of the orders i-> which there were shortages and defects, the amount of ihe shortages anil the natn e of the defc'-tk was properly refused.

p. 361

Appeal from an order directing plaintiff to furnish, a bill of particulars of the causes of action set forth in the complaint

Butler, Stillman & Hubbard (A. H. Van Brunt and John Notman, of counsel), for app’lt; George J. Greenfield, for resp’ts.

The plaintiff, doing business in this city, entered into a written contract with the defendants, who were manufacturers of colored paper in Germany, the construction of which contract, as expressed in its terms, and contended for by plaintiff, would confer on the latter the exclusive sale of the goods of defendants’ manufacture in the United States. Assigning breaches of this written agreement, the plaintiff seeks to recover upon four separate and distinct causes of action, the first being defendants’ failure to deliver colored paper upon orders' received by plaintiff, from customers, which purchase orders it is alleged the defendants duly accepted, and by reason of their failure damaged the plaintiff to the extent of the difference between the price to be paid by plaintiff and the price at which he had resold the same to the customers. Annexed to-the complaint, as an exhibit, is a schedule of those orders, and of their numbers, and of the number of reams of paper covered by each order and the value thereof. In addition, however, the-defendants ask for a bill of particulars of the names and addresses of the persons to whom the plaintiff made sales, as alleged, which particulars, we think, should have been furnished, as directed by the order appealed from, because the damages-claimed by reason of the breach assigned are in the nature of special damages, and although certain particulars are given in the exhibit attached to the complaint, such particulars are not sufficient means of identifying the purchase orders as being the same as those alleged to have been taken by plaintiff, nor do-they state the number of reams sold to any purchaser, or the-dates of such sales. As this is information peculiarly within the knowledge of the plaintiff, we can see no hardship in requiring him to furnish the same. On the other hand, the absence of such particulars, by preventing the defendants from identifying the orders, and rendering them unable to meet the-proof offered upon the trial by plaintiff, might result in surprise and possible injury.

The second cause of action is for accepting and delivering orders in the United States from parties other than the plaintiff, in violation of the agreement, and a subsequent agreement made, as-alleged, between the parties, by which the plaintiff was to forbear to prosecute the claim, in consideration of which the defendants were to pay the plaintiff a certain percentage of the total goods-before that time shipped. With regard to this cause of action, the defendants demand the following particulars: (1) The names-of the parties other than the plaintiff from whom defendants’ firm took orders, and to whom they sold and delivered their colored paper goods manufactured by them, in violation of the agreement ; and (2) the names of the parties from whom the defend

p. 362

ants took orders and sold and delivered their colored paper goods manufactured by them, in violation of a previous agreement. These particulars being as much in the possession of the party asking as in that of the plaintiff, no good reason has been assigned why the plaintiff should be compelled to furnish them. The court is not disposed to compel plaintiff to furnish specific details solely with a view to limiting the witnesses whom plaintiff otherwise might produce to prove the extent to which defendants had gone in breaking their contract. Upon such facts appearing, this court has frequently refused to require bills of particulars. Upon the ground alone that it appears that knowledge of the acts complained of is peculiarly and thoroughly with the defendants, it is but just that plaintiff should not be required to furnish the particulars. Fink v. Jetter, 38 Hun, 163 ; Passavant) v. Cantor, 48 id., 546; 16 St. Rep., 252 .

The third cause of action is for breach of the agreement arising from short deliveries and defects in quality, in consideration of plaintiff’s forbearing to prosecute which claim one of the defendants, on behalf of his firm, agreed to pay to the plaintiff the sum of $1,120.50. In regard thereto the defendants demand the following particulars: (1) The numbers of the orders in which there where shortages in packages and rolls of paper purchased by the plaintiff of defendants’ said firm; (2) the amount of such shortages, respectively ; (3) the numbers of the orders in which there were defects in the quality of the goods; and (4) the peculiar nature of such defects. With regard to these particulars, what has already been said about their being as much within the possession of the defendants as of the plaintiff is applicable; but, in addition thereto, it may be added that the cause of action is to recover a liquidated amount as the result of an agreement by reason of such defects in quality and shortage, which, as alleged, were conceded by one of the defendants.

As it would not be necessary, in order to recover for such amounts, to prove every item of shortage or defect in quality, we fail to see how this information can be at all essential to enable the defendants to prepare for their defense. In other words, the defects and shortage are averred by way of inducement or consideration, as the basis of an agreement between the parties by which, to indemnify the plaintiff for the loss resulting therefrom, he was to receive a fixed sum agreed upon between the parties. As to the first cause of action, apart from the affidavit of the attorney used upon the motion, it can be seen, from an inspection of the complaint, that it was a proper application made to the court for the desired particulars, and it is for that reason that we are not disposed to interfere with the order. In regard, however, to the second and third causes of action, the right to the particulars demanded could not be determined upon a mere inspection of the complaint, and it was therefore essential for the defendants to make out a case showing want of knowledge, and the reasons for the particulars demanded. These reasons are sought to be furnished by the affidavit of the defendants’ attorney, instead of by one of the defendants themselves. We have had occasion fre

p. 363

■quently to advert to the fact that it is impossible for an attorney to know what knowledge his clients may have as to particular facts, and hence the necessity of requiring the parties themselves to make affidavits with respect to such knowledge as they may possess, instead of attempting to delegate this office to an attorney. Assuming, however, in this case, with the explanation given of the absence of the defendants in Europe, and the possession of information by means of letters and communications, that the defendants were in a position, to presentísima facie evidence to the court, this has been met by the counter affidavits of the plaintiff in resisting the motion, which tend to support, upon the merits, the conclusions at which we have arrived, that most of these particulars sought to be obtained are in the possession of the defendants, and that the purpose sought is to find out just what ■evidence and what witnesses, together with their names, the plaintiff may have in order to sustain his causes of action. We .are of opinion, therefore, that the order requiring particulars to be given as to the first cause of action should be affirmed, and as to the second and third causes of action reversed, without costs to ■either party upon this appeal.

O’Brien and Ingraham, JJ., concur.