23 N.Y.S. 589 | N.Y. Sup. Ct. | 1893
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
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 were 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
