New York County NyArchives Court.....Goddard, Morrill Vs. Pardee Medicine Co 1889
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Source: Reports Of Cases - New York
Written: 1889

First Department, March Term, 1889.

MORRILL GODDARD, Respondent, v. THE PARDEE MEDICINE COMPANY,  Appellant.

Bill of particulars — not proper where a defense is, in effect, a denial of the 
performance of the contract sued upon.

Where, in an action brought to recover for an advertisement, alleged to have 
been made under a contract with the defendant, a defense is interposed "that the 
advertisement of the defendant was not published pursuant to said contract; that 
the said contract was not performed, and that the papers therein mentioned were 
not received, checked and verified as therein provided," it is not proper to 
require the defendant, on the ground that the plaintiff could not tell in what 
particulars the defendant intended to maintain that the advertisement was not 
published in accordance with the contract, or what papers therein mentioned were 
not received, checked and verified in accordance with the agreement, to furnish 
a bill of particulars covering such matters of alleged defense.

Bennett v. Wardell (43 Hun, 452) followed; Dwight v. Germania Life Insurance 
Company (84 N. Y., 493) distinguished.

Appeal from an order of the New York Special Term, entered in the office of the 
clerk of the county of New York, March 28, 1888, requiring the defendant to 
furnish a bill of particulars of the fourth defense contained in the answer.

William H. Shepard, for the appellant.

Philip Carpenter, for the respondent.

Bartlett, J.:

The plaintiff brings this action as the assignee of the Chicago Newspaper Union, 
and alleges that the defendant entered into a contract with that organization, 
which is set out in full in the complaint. This contract provides for the 
insertion of an advertisement for the Pardee Medicine Company every week for the 
period of one year, in a number of newspapers which are referred to as contained 
in a weekly list. There are also provisions to the effect that the papers in 
which the advertisements are published are to be regularly mailed to the 
advertiser, and that payment at the rate of eight dollars for fifty-two 
insertions is to be made "at the end of each three months after papers are 
received, checked and verified." The plaintiff further alleges that the Chicago 
Newspaper Union performed all the conditions of the contract upon its part, and 
published the advertisement of the defendant for the time specified in the 
contract, in 4,027 papers in the list which has been mentioned; and he sues to 
recover the value of the advertising at the price agreed upon between the 
parties.

The answer assumes to set up four defenses. First, the defendant admits the 
making of the contract, but denies any knowledge or information sufficient to 
form a belief as to any other allegation in the complaint. For a second defense, 
the defendant alleges that the Chicago Newspaper Union has no legal existence, 
and no capacity to assign its alleged claim to the plaintiff. In the third 
place, the defendant avers that it ordered the advertisements provided for in 
the contract to be discontinued after thirteen insertions thereof had been made, 
and that said contract was thereby canceled and annulled.

The fourth defense, which is the most important so far as this motion is 
concerned, is in the following words: "For a fourth and further answer and 
defense herein, the defendant alleges, upon information and belief, that the 
advertisements of the defendant were not published pursuant to said contract. 
That the said contract was not performed, and that the papers therein mentioned 
were not received, checked and verified as therein provided."

The plaintiff moved for a bill of particulars of this fourth defense, on the 
ground that neither he or the managers of the Chicago Newspaper Union could tell 
in what particulars the defendant intended to maintain that the advertisement 
was not published in accordance with the contract, or what papers therein 
mentioned were not received, checked and verified in accordance with the 
agreement. The court at Special Term ordered that such particulars should be 
furnished, and the defendant has appealed.

The fourth defense in the answer is not affirmative in its character. It really 
amounts to nothing more than a denial of the plaintiff's alleged cause of 
action. It adds no strength to the answer and could be wholly stricken out 
without detriment to the rights of the defendant. Considering it, therefore, 
with reference to its legal effect, which is simply that of a denial, it cannot 
properly be regarded as setting up any such claim as to render it proper to 
require a bill of particulars. The plaintiff counts upon the contract, and is 
bound to prove a performance thereof before he can recover in the action. He 
must show that the advertisement of the defendant has been published during the 
period covered by the contract, and in all the papers in which it was required 
to be published by the terms of the agreement, however large the number. Such 
proof is essential to make out the plaintiff's case, and he cannot avoid the 
obligation to furnish it, because the defendant has put its denial of due 
performance in a somewhat more specific form than was necessary. As in the case 
of Bennett v. Wardell (43 Hun, 452), no bill of particulars of the claim should 
be ordered to be furnished, inasmuch as no claim is set up, but there is merely 
an assertion that the adverse party has no claim. 

In this view there is nothing inconsistent with the case of Dwight v. Germania 
Life Insurance Company (84 N. Y. 493), in which it was held that the claim of a 
defendant, in regard to which a bill of particulars might be ordered, 
was "whatever is set up by him as a reason why the action may not be maintained 
against him," or, "that ground of fact which he alleges in his answer as the 
reason why judgment should not go against him," or, again, "the position he 
takes in his pleading, based upon the facts he sets up and the law applied 
thereto, why he should go without day." None of these definitions includes a 
mere denial or a statement of fact, which amounts only to such a denial and 
which comprises nothing more than what the defendant could have shown if he had 
contented himself with a simple denial in form.

We think the order for a bill of particulars should be reversed, with ten 
dollars costs and disbursements.

Van Brunt, P. J., concurred.

Daniels, J.:
As long as the defendant has made it a part of its answer to allege that the 
contract had not been performed and the advertisement had not been published, it 
was entirely proper to require it to make these statements explicit and 
intelligible, by the service of a bill of particulars of the plaintiff's failure 
to perform. That would greatly simplify the issue and the investigation to be 
made at the trial, and generally promote the attainment of justice between the 
parties. The defendant, by this answer, created the occasion for the bill of 
particulars. And it should not be absolved from the obligation of serving it, by 
the sole fact that it was not bound to make this answer at all. It has made it 
and the order requiring it to be amplified by a bill of particulars was so 
clearly appropriate that it ought to be affirmed.

Order reversed, with ten dollars costs and disbursements.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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