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therefore, of section ii of the Code of Civil Procedure, have not been complied with, and the order is improper for that reason.

The order should be reversed, with $10 costs and disbursements, and remitted to Special Terın for further action. All concur.

ENGINEER CO. V. SENN.

(Supreme Court, Appellate Division, First Department. March 11, 1904.) 1. CONTRACT OF EMPLOYMENT-BREACH-PLEADING-BILL OF PARTICULARS.

Where, in an action for damages for defendant's refusal to permit plaintiff to comply with a contract to do certain work, defendant set up a counterclaim that by reason of plaintiff's breach of the agreement defendant had been compelled to employ others to do the work, and that it had been necessary for defendant to procure materials, etc., in all amounting to the sum of $1,062.35, plaintiff was entitled to a bill of particulars stating the names of the persons employed by defendant, the necessary materials

furnished, etc., and the sums paid therefor. Appeal from Special Term, New York County.

Action by the Engineer Company against Jacques Senn. Plaintiff's complaint alleged a cause of action to recover damages sustained by reason of defendant's refusal to permit plaintiff to complete a contract for the operation of certain machinery, etc. Defendant admitted the execution of the contract, denied all other allegations of the complaint, and set up two counterclaims, one of which, alleged in the eighth subdivision of the answer, was for damages in the sum of $1,062.35, alleged to have arisen from plaintiff's alleged breach of the contract, whereby defendant was obliged to hire other persons to do the work which plaintiff had contracted to do, and to procure fuel and other supplies to the amount counterclaimed. Plaintiff moved for an order compelling defendant to serve a bill of particulars, stating, among other things, the date, names of persons employed, materials procured, and sums paid therefor, in such alleged counterclaim, which motion was denied, and plaintiff appeals. Reversed.

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

James W. Monk, for appellant.
Lyman A. Spalding, for respondent.

PER CURIAM. The plaintiff is entitled to the particulars of the demand contained in the eighth clause of the answer, stating the persons employed by the defendant to do the work therein alleged, and the necessary materials procured by the defendant, and which is alleged to amount to the sum of $1,062.35. The plaintiff can have no knowledge of persons employed by the defendant, or the materials procured by him in the performance of the plaintiff's obligations, and to that extent the motion should have been granted. In other respects, we think the application was properly denied.

The order should be reversed, and the defendant required to furnish a bill of particulars as above indicated, without costs of this appeal.

and 120 New York State Reporter

NEW YORK HOUSE WRECKING CO. v. O'ROURKE.

(Supreme Court, Appellate Division, First Department. March 11, 1904.) 1. WRITTEN CONTRACTS-ORAL EXPLANATION-ADMISSIBILITY OF EVIDENCE.

A contract whereby defendant sold plaintiff all the old iron in a building at a specified price per ton, and plaintiff was to pay $1,000 before any de livery, and defendant reserved the right "to keep whatever I want of the

was ambiguous, owing to the quoted phrase, and testimony as to conversations after the contract showing a contemporaneous construction was admissible.

iron,"

Appeal from Trial Term.

Action by the New York House Wrecking Company against John
F. O'Rourke. From a judgment in favor of plaintiff, defendant ap-
peals. Affirmed.
Argued before VAN BRUNT, P. J., and HATCH, MCLAUGH-

N, O'BRIEN, and INGRAHAM, JJ.
Pierre M. Brown, for appellant.
Dean Emery, for respondent.

INGRAHAM, J. The action was brought to recover damages for breach of a contract whereby the defendant agreed to sell and deliver to the plaintiff, and the plaintiff agreed to buy from the defendant, all of the old safes, iron, or other metal forming a part of the old Stock Exchange vaults. The contract was in the form of a letter written by the defendant to the plaintiff, which is as follows:

“New York, Jan. 22nd, 1902. "New York House Wrecking Co., 514 E. 23rd St., N. Y.-Gentlemen: I bere with beg to offer you all the old safes, iron or any other metal now forming part of the Old Stock Exchange Vaults, for the sum of eight dollars and fifty cents ($8.50) per ton of 2000 pounds, and the granite at 25 cts. per cubic foot, all to be delivered on the sidewalk and to be carried away by you. I reserve the right, however, to keep whatever I want of the iron, safes and stone.

“Payment $1000.00 before delivery of any material, successive payments of $1000.00, as enough material is delivered to make up the respective amounts. “Very truly yours,

[Signed] John F. O'Rourke, "Copy.

"Mueller. "Accepted.

“New York House Wrecking Co.

"L. Benjamin, V. P.” The plaintiff paid the $1,000 upon the execution of the contract, and proceeded to take out the safes under the contract. After the plaintiff had removed about 110,000 pounds of the vault plates, the question as to the removal of the vaults came up, when the plaintiff's representative suggested to the defendant's manager, who was in charge of the work, that, to make the boxes lighter, the doors should be broken off. The defendant's manager made no objection, and plaintiff's employés proceeded to do as suggested, whereupon the defendant wrote the plaintiff the following:

“Contrary to our agreement, a number of your men went into the Safe De posit Vaults at the New York Stock Exchange and wrecked a good number of safes, which damage as well as any other, I expect you to make good, or I will do so and charge it to your account. In consequence of this act on the part

of your employees, I would ask you to withdraw, as no further material will be delivered to you."

Subsequent to this letter the defendant refused to deliver to the plaintiff any more of the materials described in the contract. The defendant's manager, when asked what was the matter, replied that he had instructions not to let the plaintiff's men have any more of the materials; and the plaintiff seeks to recover in this action the damages sustained because of a refusal of the defendant to carry out the contract. There was evidence as to the value of the materials to which plaintiff was entitled under the contract, and, a jury having been waived, the court found that there was a breach of the contract by the defendant, and that the damages sustained by the plaintiff amounted to $1,780, for which judgment was directed.

There is a statement in the case that it contains "all the evidence offered and received upon the trial, except expert evidence on both sides as to the value of materials which were the subjects of the contract in question, as to which values no question is raised upon this appeal." The question, therefore, that we have to determine, is whether the finding of the court that there was a contract, and a breach thereof by the defendant, was sustained by the evidence. The defense depends upon the construction to be given to the clause in this letter by which the defendant reserved the right to keep whatever he wanted of the iron, safes, and stone. It is evident that the parties intended to sell something. It was certainly not intended that the defendant could refuse to deliver any materials, and retain the $1,000. The language used was ambiguous, and it was sufficient to justify, I think, evidence as to the verbal negotiations that led up to the contract, to explain the intention of the parties. The plaintiff offered such testimony, which was objected to by the defendant and excluded. There was testimony, however, as to conversations after the execution of the contract, which, although objected to by the defendant, were clearly competent as a cotemporaneous construction of this ambiguous phrase upon which the defendant now seeks to sustain his refusal to perform his contract. This testimony, which quite clearly shows the construction put upon this clause of the contract by the parties immediately after its execution, removes any doubt, if doubt there was, as to what was intended when the contract was made. As before stated, it is clear that the defendant agreed to sell, and the plaintiff agreed to purchase, something. Certainly it was not the intention of the parties that the day after the contract was executed, and the $1,000 received by the defendant, the defendant could abrogate the contract by saying that he desired to retain all of the articles which he had agreed to sell. What was obviously intended was that, as to any special article included within the general description of the property sold, the defendant should have the right to exclude it from what was to be delivered under the contract; but the special article that the defendant desired to exclude must be designated by him, and then as to that article the contract did not apply. Now, the defendant failed to comply with this requirement. He specified no article which he wished excluded from the sale, but simply refused to deliver to the plaintiff any of the property which he had sold, and for which he had been paid. That this was a aud 120 New York State Reporter breach of his contract was apparent, and for the damage sustained by the plaintiff in consequence of such breach he was clearly liable.

There are no exceptions to the admission and exclusion of testimony that require discussion.

It follows that the judgment appealed from must be affirmed, with costs. All concur.

EGBERT et al. v. HANFORD PRODUCE CO. (Supreme Court, Appellate Division, First Department. March 11, 1904.) 1. SALES-QUALITY OF GOODS-IMPLIED WARRANTY.

Defendant sold eggs to plaintiffs in New York. The eggs were in cold storage in defendant's warehouse in Iowa. The defendant knew the quality, and represented them to be "fancy selected eggs in storage." The defendant knew plaintiffs were relying on its representations as to the quality, and that plaintiffs had no representative in Iowa. Held, that defendant's representation as to the quality of the goods was a war.

ranty. 2. SAME-QUESTION FOR JURY.

Where eggs are sold on a warranty that they are "fancy selected eggs in storage,” and the evidence is conflicting as to whether they were of the

quality warranted, the question is one for the jury. 3. SAME-SEPARATE ALLOTMENTS-RIGHTS OF BUYER.

Where several lots of eggs are sold from as many different localities, on a warranty that they are of a certain quality, the buyer has the right to rely on the warranty, order all the eggs delivered, and look to the seller

for any damages sustained by a breach. 4. SAME-MEASURE OF DAMAGE.

Where eggs are sold on a warranty that they are of a certain quality, the measure of damage for a breach of the warranty is the difference be tween the price the eggs brought on resale by the buyer and that which

they would have brought had the quality been as represented by the seller. Appeal from Trial Term.

Action by Thomas K. Egbert and another against the Hanford Produce Company. From a judgment for plaintiffs and an order denying a motion for a new trial, defendant appeals. Affirmed.

Argued before VAN BRUNT, P. J., and HATCH, MCLAUGHLIN, O'BRIEN, and INGRAHAM, JJ.

George C. Delacy, for appellant.
Charles I. McBurney, for respondents.

MCLAUGHLIN, J. This action was brought to recover damages for an alleged breach of warranty in the sale and delivery by defendant to the plaintiffs of a quantity of eggs.

The material allegations of the complaint upon which a recovery was sought were that the defendant, an Iowa corporation, on or about the 20th of April, 1899, offered to sell to the plaintiffs, for $9,000, five car loads of eggs, which it warranted to be selected storage eggs, a quality known to the trade as "storage firsts"; that the plaintiffs, relying upon this warranty, and believing the same to be true, purchased five car loads, consisting of 60,000 dozen, for which they paid the price asked by defendant; that the same did not come into plaintiffs' possession at the time of the purchase, nor when payment was made, but were held by defendant, as warehouseman of these plaintiffs, at Sioux City, Ia.; that thereafter plaintiffs directed defendant to ship the same to their place of business in the city of New York, which it did, and upon inspection it was ascertained that the eggs were not selected storage eggs of the quality warranted and known to the trade as "storage firsts,” but were of a much inferior quality, of which fact defendant was immediately notified, and at the same time plaintiffs offered to return the eggs to the defendant or dispose of them as it might direct; that the defendant refused to receive the eggs or give any directions as to their disposition, and they were thereupon sold in the open market, previous notice of such sale having been given to the defendant; and judgment was demanded for the difference between what they brought on such sale and what they would have brought had they been of the quality represented.

The answer admitted the sale; payment of the purchase price; that the eggs were stored, after the purchase, by defendant in its cold-storage warehouse at Sioux City, Iowa, and warehouse receipts issued therefor; and denied the other material allegations of the complaint; as a separate defense alleged that at the time stated in the complaint the defendant sold to the plaintiffs, at the price stated therein, 60,000 dozen of "fancy selected eggs in storage,” and at plaintiffs' request the same were placed in cold storage "to await 'the orders and disposition of plaintiffs concerning the same”; that, the eggs having been put in cold storage, the defendant issued its warehouse receipts covering the same; that said eggs were, at the time of the sale and deposit, of the kind, character, and quality called for by the contract of sale; that they remained in defendant's cold-storage warehouse until the 25th day of November, 1899, at which time, and at sundry dates thereafter prior to the 8th day of January, 1900, defendant, at plaintiffs' request, shipped all of said eggs in five separate car loads to plaintiffs in the city of New York; and that if, at the time of the receipt by plaintiffs, said eggs did not grade as "fancy selected eggs," it was through no fault of defendant, but was due entirely to the length of time during which plaintiffs had kept said eggs in storage.

Upon the issue thus formed the parties went to trial, where substantially the only fact litigated was whether the eggs were of the quality represented at the time the purchase was made.

There was no real dispute as to the terms of the contract. The eggs sold were five car loads of selected storage eggs. The contract was made in April, when the storage of eggs begins, and was for selected eggs, known as "storage firsts.” This was not only established by the witnesses on the part of the plaintiffs, but by the invoice, the warehouse receipts, and also by the defendant's witness Hanford--the person who made the sale—who testified that they were to be “fancy selected eggs in storage"; that they “were to be the usual high quality of Hanford storage eggs”; as well as by the testimony of the president and warehouseman of the defendant (which was taken by commission), to the effect that the eggs were to be "fancy storage packed Aprils,” known as "fancy selected storage eggs," a quality considered by him “second to none." Nor was there any dispute between them as to the effect of

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