
    John Gowans and Others, Appellants, v. Frances Jobbins, as Ancillary Executrix, etc., of William F. Jobbins, Deceased, Respondent.
    
      Bill of particulars — when not required where documentary proof on the subject is in the possession of the party applying for it — election between two causes of action, one for an accounting under a contract and the other for its cancellation.
    
    In an action brought against one Jobbins it appeared that the plaintiffs, who were soap manufacturers, entered into a contract with the defendant, who claimed to own a valuable process for refining crude glycerine extracted from waste lye, whereby the plaintiffs agreed to concentrate crude glycerine from soap lye and send it to Jobbins, who was to refine and sell it and pay half of the net avails to the plaintiffs. The agreement provided that it should continue in force only as long as Jobbins fulfilled his obligations to the plaintiffs.
    The complaint set forth two causes of action. The first charged that the defendant accounted to the plaintiffs for only ninety per cent of the glycerine extracted from the crude product and made false reports to the plaintiffs concealing the actual amount of the money realized upon the sale of the refined glycerine, and prayed for an accounting.
    The second cause of action charged that the defendant falsely represented that he possessed the requisite skill necessary for refining the crude glycerine. It also reiterated the allegations respecting the failure of the defendant to account properly for the avails of the sales and asked for the cancellation or termination of the contract by reason of such failure and for an accounting.
    
      Held, that it was improper for the court to require the plaintiffs to elect upon which of the two causes of action they would proceed, as such causes of action were not inconsistent and might properly be disposed of in a single equitable action;
    That the plaintiffs should not be required to make a more definite statement in their complaint, or to serve a bill of particulars before issue had been joined, specifying wherein the statements delivered to the plaintiffs by the defendant were false or incorrect, and wherein the defendant failed to report correctly the sums actually received, and matters of a kindred nature, as the documentary proof bearing upon these questions was in the possession of the defendant;
    That the plaintiffs should not be required, before answer, to furnish a bill of particulars as to the chemical tests made, although such relief might be proper after the action was at issue.
    Appeal by the plaintiffs, John Gowans and others, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 27th day of April, 1903, directing the plaintiffs to make the amended complaint more definite and certain, striking out certain parts thereof, and requiring them to elect upon, which cause of action they will proceed.
    
      Adelbert Moot, for the appellants.
    
      Seward A. Simons, for the respondent,
   Spring, J.:

The plaintiffs are soap manufacturers in the city of Buffalo, and in 1896 and thereafter Jobbins & Yan Buymbeke were chemical manufacturers in Illinois. The latter claimed to own a valuable process for refining crude glycerine extracted from waste lye.

■ The two firms entered into a written agreement which is attached to the complaint, whereby the plaintiffs were to concentrate the crude glycerine from the soap lye, send it to the manufacturers in Illinois, who were to refine it and sell it and pay over to the plaintiffs one-half of the avails, less expenses, set out in the agreement. The agreement was of the date of January 4, 1896, and the parties have since been operating under it. Yan Buymbeke assigned his interest to his copartner, Jobbins. The latter died since the commencement of the action and his executrix has been substituted as defendant.

The complaint contains two distinct causes of action. The first, after a recital of the facts, charges in substance that the defendant accounted and paid over to the plain tiffs, only ninety per cent of the glycerine extracted from the crude product and falsely reported and made incorrect statements to the plaintiffs upon that basis, concealing the amount of glycerine which they recovered and the actual amount of money which they received from the sales of the .product, and asks for an accounting.

The court below has stricken out certain allegations and required a bill of particulars, or that the complaint definitely state in detail as to certain other facts or averments contained in the complaint. The cause of action as a whole is clearly enough set out so that the defendant can apprehend precisely with what she is charged, and the allegations eliminated by the order are so interwoven with pertinent allegations that to strike them out in a measure weakens the force of the facts which the pleader is endeavoring to state. The bill of particulars ordered pertains to requiring information as to the particulars wherein the statements of the defendant’s predecessors were false or incorrect, wherein they failed to report the sums actually received, and matters of a kindred nature. All of these facts are peculiarly within the knowledge of the defendant. The books of account,, the shipping and other bills, the data, documentary in form, must necessarily be in the possession of the defendant. At this stage of the case at least, with no issue joined, the plaintiffs ought not to be required to give information which they cannot have and which they allege they cannot state in detail. From the nature of the cause of action the plaintiffs are likely to be largely dependent upoh the books, of account and other documentary proof which are in the custody of the defendant and to the inspection of which they may be entitled by reason of the joint interest of the parties in the venture and its profits.

We think the court erred in requiring the plaintiffs either to state definitely in the complaint these facts or accompany the pleading with a bill of particulars furnishing this information.

The second cause of action is founded upon a different theory. By the terms of the agreement of the parties Jobbins & "Van Buymbeke, as. noted, were to refine this glycerine product, and the agreement was to continue in force “ and be binding upon each party to the other party so long as the said first party (Jobbins & Van Buymbeke) faithfully fulfill their within named obligations to the said second party (plaintiffs herein).”

The complaint charges that Jobbins & Van Buymbeke represented they possessed skill as chemists and that their patent process would concentrate the crude glycerine from the waste soap lyes and refine the product, so that the glycerine, which was the valuable result of the process could be extracted, and further that the plaintiffs relied upon these representations. The complaint avers that said firm did, not possess the requisite skill in refining the crude increment. This count contains the allegations reiterated of the failure to'account properly for the avails of the sales and asks for the cancellation or termination of the contract by reason of such failure upon the part of the defendant to comply with its terms and for an accounting.

The court at Special Term has required the plaintiffs to elect upon which of these causes of action they will proceed. We do not regard them as inconsistent. The cancellation of the contract and the sale of the joint property might follow as a natural - incident of findings establishing that the defendant had falsely reported its sales to the injury of the plaintiffs and that she or her predecessors in interest have substantially failed tq perform the agreement. A new action could be commenced based upon such findings of a substantial failure to meet the obligations assumed in the agreement, but all the rights of the, parties can be taken care of in the one equitable action instead of commencing anew.

In order to comprehend this cause of action or to make it complete or consistent it is not necessary tó° strike out the allegations which have been eliminated by the order appealed from.

Nor do we deem it judicious at this stage of the case to compel plaintiffs to furnish a bill of particulars as to the chemical tests made or as-to any of the other matters set out in this cause of action. The bill of particulars cannot be important to enable the defendant to answer. It may be that,- after the parties have defined their issues by their pleadings, this relief will be proper, but not at present..

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

All'concurred.

Order reversed, with ten dollars: costs and disbursements.  