#### A. & S. Henry & Co., Plaintiff, *v.*James Talcott, Defendant.

(Supreme Court, New York Special Term,

January, 1899.)

Sale by sample and with warranty — Bill of particulars .refused as to matters between the parties and granted as to claims made against the vendee by customers to whom he had resold the goods.

In an action by a foreign corporation for goods sold, the answer alleged that the goods were sold by sample and with a warranty of. quality, that there had been breaches in both respects, and that there was a failure to deliver in time. The plaintiff demanded a bill of particulars of the counterclaims.

Held, that no bill would be directed of a counterclaim 'alleging that the goods were sold for resale and were all defective; but that the plaintiff was entitled to the particulars of an allegation, that the defendant had lost money because some of his customers had subsequently returned the goods as defective.

That no bill would be ordered as to a counterclaim alleging that the goods were invoiced as of their value, if up to the sample, and that *80consequently the defendant was forced to pay duties upon them in excess of their real value. That no bill would be ordered as to a counterclaim relative to shipments not made to the defendant at the times fixed by the contract; but that the plaintiff was entitled to the particulars of a further allegation that the defendant had lost a profit because, by reason of the failure to ship in time, he could not ship - to his own customers at the times when he had agreed to do so.

Motion for a bill of particulars of certain affirmative defenses contained in an answer. The action was for goods sold and deilivered. The answer alleged a sale by sample, and warranty of quality; that the goods delivered were not equal to sample, and did not fulfill this warranty, and that some of them were not delivered within the time stipulated in the contract of purchase, and that defendant had in consequence suffered damage. Further facts appear in the opinion.

Leaventritt & Nathan, for plaintiff.

Kellogg *&*Beckwith, for defendant.

Scott, J.

The plaintiff’s demand for a bill of particulars is too broad. The plaintiff, a foreign corporation, sold the defendant, by sample, certain goods, and now sues for a balance of the purchase money. The first counterclaim asserts that the goods were to be manufactured for the defendant for the express purpose of being resold to his customers, and that plaintiff warranted that they should be free from defects and fit for the purpose of resale as merchantable articles of the quality represented by the samples; that the goods were not free from defects arising from manufacture, and were not reasonably fit for the purpose of being resold as merchantable articles of the quality of the samples, and did not comply with the warranty, and were of less value than they would have been if the warranty had been complied with. Up to this point no bill of particulars as to the especial goods which it is alleged did not come up to warranty should be ordered, for it is apparent that the counterclaim is intended to apply, and in terms does apply, to all the goods involved in this action. Particulars in this regard would consist merely of an enumeration of all the goods manufactured for aUd shipped to defendant, and as to- these the plaintiff *81must be already informed. The counterclaim, however, goes on to allege that a large portion of the goods .were resold by defendant to his customers, and were rejected and returned, and that claims were made upon defendant by reason of the defects in the goods, and that defendant was compelled-to and did make allowances to his said customers, and was subjected to further loss, damage and expense in the resale of the goods thus returned to him. This allegation is in the nature of a claim for special damage, and the particulars thereof must be peculiarly within defendant’s knowledge and are not presumptively known to plaintiff. The defendant should furnish a bill of particulars, showing the names of the persons to whom he made allowances, and the several amounts of such allowances, and the items of the damage, loss and expense incurred in the resale of the rejected goods. The second counterclaim asserts that the goods were invoiced as of the value they would have been, if they had, in fact, been equal to sample and in accordance with the warranty, and that the defendant paid duties thereon based upon such valuation, whereas, they were in fact of less value, and if they had been invoiced as of their actual value, the defendant would have been called upon to pay a much smaller amount in duties. No particulars are needed as to this comiterclaim. The plaintiff must know the values stated in the invoices and the rate of duty charged upon goods of the Mnd and quality shipped. The amount the defendant was compelled to overpay will depend upon what the jury find the actual value of the goods to have been. The third counterclaim alleges that the contract between plaintiff and defendant specified certain times when the goods to be manufactured by plaintiff for defendant should be delivered; that, relying upon such contract, defendant himself made contracts with his customers, and fixed times when he would deliver said goods or portions of them to said customers, and made contracts for the sale and delivery of said goods at specific dates; that plaintiff failed to comply with its contract and to deliver the goods at the times specified, and in consequence thereof the defendant was himself unable to comply with the contracts he had entered into with his customers, and thereby lost the profit he would have made if he had been able to make deliveries as he had agreed. The plaintiff is not entitled to a bill of particulars of the shipments which, as between plaintiff and defendant, were not made in due time, for it must be presumed to know what the contract was in regard to the time of shipment, and also what the actual dates of shipment were *82and whether they conformed to the contract or not. It is, however, entitled to know the names of the customers with whom defendant made the time contracts, which he was, by reason of plaintiff’s default, unable to carry out, and of the amounts and kind of goods he had agreed to sell to each and the profits he claims to have lost by reason of his inability to carry out such contracts. The motion will be granted to the extent indicated in this memorandum, but without costs. Order to be settled on notice.

Motion granted, without costs.