#### Rouget *v.*Haight *et al.*

*(Supreme Court, General Term, First Department.*

June 6, 1890.)

L Contracts—Pleading—Written or Verbal.

In an action on a sealed instrument, the answer alleged that it was agreed between plaintiff and defendant that plaintiff should advance certain money to be used by defendant in purchasing oil, the profits of which were to be shared by plaintiff; that, relying on this agreement, defendant purchased oil, but plaintiff refused to advance money with which to pay therefor; and that defendant, not being able to complete his purchases, was thereby damaged. *Held,*that it was not necessary for the answer to allege whether the agreement relied on was written or verbal

2. Pleading—Motion to Make Definite and Certain.

Such averments sufficiently state the nature of the defense, though the items constituting it are not shown, and a motion to make more definite and certain, by stating the dates of purchase, the names of the sellers, and the quantities of oil purchased, and by showing wherein defendant was damaged, will be denied, as plaintiff has a complete remedy by motion for a bill of particulars.

Appeal from special term, New York county.

Action by Edward Rouget against Theodore Haight and Ellen J. Haight on an instrument under seal, as follows: “This agreement, made and entered into by and between Theodore Haight and Ellen J. H. Haight, his wife, of Irvington, -Westchester county, New York, parties of the first part, and Edward Rouget, of Ridgefield Park, New Jersey, party of the second part, witnesseth: The said party of the second part hereby agrees to advance to said Theodore Haight from time to time sums of money, in all not to exceed the sum of ten thousand dollars; that said sum of ten thousand dollars, or such part thereof as shall be advanced by said party of the second part to the said Theodore Haight, shall become and belong to said Theodore Haight upon the decease of the party of the second part and his wife, Josephine P. Rouget. It is hereby covenanted and agreed on the part of the parties of the first part, in consideration of such advances and the agreement herein contained, they will pay to the said party of the second part the sum of fifteen percent, per annum upon the sum so advanced, in equal monthly payments to the party of the second part during his natural life; and, in ease the said Josephine P. Rouget survives the said party of the sec- *752and part, then said fifteen per cent, per annum upon the sum so advanced shall be paid to said Josephine P. Rouget during her natural life. It is further covenanted and agreed on the part of the parties of the first part, in consideration of the covenants and agreements herein contained, that, should the said party of the second part survive the said Theodore Haight, then, and in that case, the said sums of money so advanced as aforesaid shall be repaid to said party of the second part. It is further covenanted and agreed by and between the parties hereto that in case the parties of the first part shall fail to pay said fifteen per cent, as the same shall become due and payable, and should the same remain unpaid for thirty days, then, and in that case, this agreement shall become null and void at the election of the party of the second part, and the party of the second part shall be entitled to demand and collect from the parties of the first part the whole of the money advanced as aforesaid. It is hereby further covenanted and agreed that the covenants and agreements herein contained shall bind the heirs and legal representatives of the parties hereto. In witness whereof the parties hereto have hereunto set their hands and seals, this 9th day of July, A. D. 1887. Theodore Haight, [l. s.] Ellen J. Haight, [l. s.] Ed. Rouget, [l. s.]”

The ninth, tenth, and eleventh paragraphs of the answer were as follows: *“Ninth.*And defendant Theodore Haight, further answering, and for a separate and further defense, and as a counter-claim to the cause of action set out in the complaint, shows that at the time of the execution of the agreement set out in the complaint this defendant, Theodore Haight, was engaged in.the business of buying and selling stocks, bonds, and oil, and doing a general brokerage, banking, and commission business, and that plaintiff well knew that defendant was engaged in such business. *Tenth.*That at or about the time of the execution of said agreement set out in the complaint it was mutually covenanted and agreed by and between the plaintiff herein and this defendant that, for the purpose of dealing in stocks, bonds, and oil for the joint benefit of the plaintiff and defendant Theodore Haight, said plaintiff should from time to time, as this defendant should request, advance to this defendant, for the purpose of buying stocks or bonds or oil, sums of money, in all not to exceed the sum of ten thousand dollars; and it was further agreed that on all such sums so advanced this defendant should pay said plaintiff interest at the rate of fifteen per cent, a year, and that such fifteen per cent, so to be paid was to be received by said plaintiff as and for his share in full of any profit that might arise on such purchases so to be made, and was to be paid to him, whether any such profit was made or not; and it was further agreed that all such purchases should be made in the name of said defendant Haight, and said Haight should do all the necessary work and labor in and about such dealings in stocks, bonds, and oil. *Eleventh.*That thereafter, and relying upon said plaintiff’s promise and agreement to advance such sums of money as in the tenth paragraph of this answer set out, and in order on his part to carry out said agreement, this defendant made certain purchases of oil, and agreed and bound himself to pay the price thereof when the same were delivered on a day fixed; that; having so agreed to purchase said oil, this defendant informed plaintiff that he had so agreed to purchase the same, and requested plaintiff to advance, in accordance with his said agreement so to do, a sum of money not exceeding ten thousand dollars with which to pay for said oil; that said plaintiff thereupon neglected and refused so to do, and did not advance said moneys to this defendant; that on account of said plaintiff refusing to advance any sum of money as requested, as he had agreed to do as set out in the tenth paragraph of this answer, defendant was unable to obtain the amount required to complete the purchase of said oil, and to pay for the same, and therefore was unable to get possession of the same, and was thus forced to abandon his contract to purchase said oil, to his damage in the sum of $8,000.”

*753Defendants were required to amend their answer by showing whether this agreement was a written or verbal one, and to make the eleventh paragraph of the answer more, definite and certain by stating the dates of purchase, the names of the sellers, and the quantities of oil purchased, and by showing wherein defendant suffered damage, *i.*e., the items of damage, and they appeal.

Argued before Van Bbunt, P. J., and Beady and Daniels, JJ.

*Wyatt & Trimble,*for appellants. *Samuel Cohen,*for respondent.

Beady, J.

. The defendant was not obliged to state whether the agreement upon which his counter-claim rests was in writing or not. In the language of the court of appeals, it was sufficient for him to allege the contract and breach, without any specification of the evidence thereof. *Tuttle*v. *Hannegan,*54 N. Y. 686. The plaintiff in the case sought to recover damages for a breach of a contract, and on the trial offered in evidence a written instrument in the form of a bond containing the agreement. It was objected that the action should have been brought thereon, but the court admitted it. It was held that no error was committed, and for the reason stated.

The purchases and sales alleged to have been made under the agreement are not stated in detail, but nevertheless the cause of action is stated with sufficient definiteness to make "apparent what the defendant claims. It is stated generally, it is true, and in such a mode as to show that there are items constituting it. That, however, does not give the right to the remedy which may sometimes be invoked of making the averment more definite and certain. It can only be sought when the allegations are so indefinite that the precise nature of the charge or defense is not apparent. Here there is no doubt of the nature of the defense. The plaintiff is not, however, remediless, inasmuch as he may ask for the particulars, and obtain them. *Tilton*v. *Beecher,*59 N. Y. 176. In this case the border line between these remedies seems to ha've been reached, and illustrates how slight a difference may exist between the conditions requiring the application of the one or the other. It appears to be settled that, if the charge or defense be definitely stated, although the statement involves details, it is sufficient to put the party to an application for a bill of particulars, and compels him to resort to that remedy, although the result of either application would be the same. See *Jackman*v. *Lord,*9 N. Y. Supp. 200; *Tilton*v. *Beecher, supra.*The order appealed from should for these reasons be reversed, with $10 costs, and the disbursements of this appeal. All concur.