Strohmeyer & Arpe Co. v. Hartley Silk Manufacturing Co. ( 1909 )

Scott, J.:

In my opinion the .order for a hill of particulars should be reversed in toto. Plaintiff sues for damages arising out of defendant’s refusal to take certain goods alleged to have been purchased by defendant. Defendant counterclaims in two counts,. alleging that the goods delivered were of inferior quality, and that it was obliged to buy and did buy goods of the agreed quality in the open market at an advanced price. It claims as damages the difference between the market price and the price at which it purchased in the open market. ¡No special damages are alleged. The order appealed from requires defendant to state the items constituting the damage claimed. All agree that so much of the order should be reversed because the counterclaims distinctly state the amount of goods purchased, the contract price and the price paid in the open market. The amount of damages claimed is a mere matter of computation from these items, and no bill of particulars is' necessary. (Greene v. Johnson, 126 App. Div. 33.) The order also requires the defendant to state the date and place of purchase of the goods bought in the open market, the name of the seller, the amount and price thereof, and the terms of purchase and delivery. These particulars should not have been ordered, because the matter referred to cannot be proved o,n the trial, unless plaintiff consents thereto. If plaintiff did in fact refuse to deliver goods of the quality contracted for, the measure of its damage is the difference between the contract price and the market price at the agreed date of delivery, or within a reasonable time thereafter. The defendant was not bound to purchase other goods in order to fix the damages and proof of such purchase, and. the amount paid thereon would be inadmissible either to fix the damages or to establish the market price. To make such proof would be to show special damage, which would be allowed only upon allegation and proof that there was no market price for such goods. There is no such allegation in the answer. On the contrary, there is distinctly alleged that there was an open market. No advantage can come to plaintiff from being informed of the particulars of a transaction which cannot be made a matter of proof on the trial. The order appealed from should be reversed, with ten dollars costs and disbursements, arid the motion denied, with ten! dollars costs.

Clarke and Houghton, JJ., concurred; Ingraham and McLaughlin, JJ., dissented.