
    Charles E. Bidwell et al., Appellants, v. Daniel E. Shaw et al., Respondents.
    (City Court of New York — General Term,
    June, 1894.)
    In an action for breach of a contract of sale by the vendee’s refusal to accept the goods, a counterclaim for a breach of the contract by the vendor in refusing to perform'by delivery or offer to deliver, which claims general damages therefor, is sufficient.
    Appeal from two orders overruling demurrers, and from an interlocutory judgment entered thereon.
    
      Norwood & Dilley, for appellants.
    
      Francis A. Wilson, for respondents.
   Conlan, J.

This is an appeal from one interlocutory judgment entered upon an order overruling two demurrers to counterclaims set up in the answer herein.

The complaint alleges a contract in writing between plaintiffs and defendants to the effect that defendants were to receive at a fixed price a certain quantity of gambiers, to be-shipped at Singapore during the months of April, May, June, July and August, 1893, per sailing vessel to the port of New York, “no arrival, no sale.”

The complaint further alleges the arrival of the gambiers as provided for in the contract, the refusal of the defendants to receive or accept the same after notice and tender by the plaintiffs, and demands judgment for damages sustained in labor, insurance, brokerage, storage, interest, etc., growing out of said refusal to perform on the part of the defendants.

The answer of the defendants admits the contract and the arrival of the gambiers, and alleges a willingness on their part to perform the contract according to its terms; further answering, and by way of counterclaim, they allege a refusal on the part of the plaintiffs to perform their part of the contract by a delivery or an. offer to deliver the merchandise contracted for, and claim damages generally therefor.

Plaintiffs demur to said counterclaims on the ground that they do not state sufficient facts to constitute a cause of action.

In this we think the plaintiffs are in error.

The breach of the contract by the plaintiffs, if established, is sufficient in itself to entitle the defendants to damages, but the nature, character or measure of damages to which the defendants may be entitled is for the court and jury at trial term.

If the plaintiffs desire to be more specifically advised as to the nature of defendants’ claim for damages, they may move for a bill of the particular items composing such claim, but their remedy is not by demurrer.

The order of June eleventh, overruling the demurrers, and the interlocutory judgment thereon, should be affirmed, with costs.

Hewburger, J., concurs.

Order and judgment affirmed, with costs.  