
    James F. Mason et al., App’lts, v. George T. Smith and Another, Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September, 1888.)
    
    Discovery—Of letter—When application for properly chanted— Code of Civil Procedure, becs. 803, 805, 807.
    An application for discovery of a letter written by plaintiff’s clerk to defendant, which is claimed to alter or modify a contract made between the parties which is the subject of the action, the existence of the letter being admitted, the affidavits and the pleadings showing unmistakably that it contained a modification, or what is claimed by defendants to be a modification of the contract between the parties, the defendants not denying this, and giving no facts why they should not make discovery nor claiming that the letter is their affirmative defense, should be granted. It cannot be called an invasion of property rights to require a defendant to produce a copy of a specified letter written by plaintiff.
    Appeal by defendants from an order of the special term requiring the defendants to make discovery of a letter sent by the plaintiffs to the defendants, by serving a sworn copy thereof on the plaintiffs’ attorneys. The action was 'brought to recover $1,267.^5, the balance of the purchase price of a quantity of gloves alleged to have been sold by the plaintiffs to the defendants in the year 1887. The petition for discovery and pleadings shows the following among other facts: That in April, 1887, the plaintiffs, by their agent, made an agreement with the defendants for the sale of a quantity of gloves of various styles and descriptions at prices agreed upon, to be delivered to the defendants by shipping them by rail at Johnstown, N. Y., directed to defendants at Kansas City, Mo. The goods were so shipped and received by defendants, who received and retained them without objection. About a month thereafter the defendants returned a portion of the gloves, claiming that they were defective, and requesting plaintiffs as a favor to credit them with the price thereof. The defendants, finding no fault with the other gloves, the plaintiffs believed that they were accepted as entirely satisfactory.
    Afterwards a young clerk in the employ of plaintiffs, without their knowledge, wrote and sent to the defendants a letter in the name and on behalf of the plaintiffs of which no copy was kept, containing statements, expressions or propositions relating to the defendants returning to the plaintiffs a portion of said gloves or exchanging them for other gloves of the same styles—which letter still remains in the possession and under the control of the defendants.
    After said clerk had written said letter and before the plaintiffs knew it had been written, the defendants claiming to act upon it (as the plaintiffs now believe), shipped to the plaintiffs at three different times and in different parcels, portions of the gloves, which they had before received and accepted, amounting in the aggregate at the prices agreed upon to $912.35. This the defendants had no right to do, unless by propositions or provisions contained in saicl letter, and the plaintiffs refused to receive or accept any of the gloves so returned.
    In this situation the matter remained, the defendants refusing to pay for the gloves, until the 18th of February, 1888, when this action was commenced by the service of summons and verified complaint.
    The complaint sets forth the contract of sale and the delivery of the gloves to the defendants in accordance therewith, and the defendants’ refusal to pay the price agreed upon.
    The defendants served an answer, verified by the defendant Smith, by which they admitted the contract of sale as set forth in the complaint and that the plaintiffs had delivered thereon gloves amounting at the prices agreed on to $351.70, and alleging that no part of the balance of said gloves amounting to $951.30 had been delivered and that the plaintiffs had broken their agreement to sell and deliver.
    Afterwards defendants served an amended answer in which they allege, that as a part of the agreement mentioned in the complaint it was agreed that defendants might accept and retain such of the gloves delivered to them as were of the kind called for by the agreement without incurring any liability for the remainder, and might return such remainder to the plaintiffs, and under that part of the agreement they did return to the plaintiffs a portion of the gloves so delivered amounting to the sum of $951.30.
    Upon the receipt of said amended answer, so verified, the plaintiffs made inquiries in regard to the correspondence referred to and then first learned that their clerk had written and sent the aforesaid letter to the defendants. And thereupon plaintiffs’ attorneys wrote to the defendants’ attorneys, asking them for a copy of said letter ; and they received a reply thereto from the defendants’ attorneys, admitting in substance their possession of the letter, and that it related to the return or exchange of a portion of the gloves, but declined to furnish a copy thereof on the ground that the plaintiffs had no right to it.
    
    Plaintiffs further charge in their petition that the defendants’ claims and allegations in their amended answer of an agreement for the return of gloves, are based upon said letter. And the plaintiffs aver that there were no such provisions in the original agreement, and there are no such provisions in it now unless it has been modified by said letter. The petition also states that the plaintiffs desire information of the contents of the letter to enable them to ascertain and determine whether said agreement of sale was thereby modified, changed or added to, and if so, how and in what respect; or whether a new agreement in relation to said gloves was made thereby, and if so, what it was. That an inspection and copy of said letter are necessary to determine those facts, and if it has been modified, changed or added to, they desire to amend their complaint so as to conform to the actual facts as they now exist. But if after an inspection of the letter it appears that no such amendment is necessary, then to enable the plaintiffs to prepare for the trial of the issues now joined and to prove what statements or propositions the letter contains which the defendants claim to have acted upon in returning the gloves.
    
      J. P. Robertson, for app’lts; John M. Carroll, for resp’ts.
   Per Curiam.

We think this order appealed from was properly granted.

This is not what has been called “a fishing excursion.” It is simply an application for discovery of a certain letter written by plaintiff’s clerk to defendant. This letter is evidently claimed to alter or modify a contract made between the parties. It is therefore really a part of the existing contract, if it has any connection at all with the matter. That it is connected with the matter is not denied by defendants.

The plaintiffs do not know the contents of the letter, and have no copy of it.

The defendants urge that the discovery is not shown to be necessary. We think that the plaintiff’s affidavit sufficiently shows that it is material and necessary.

It can hardly be called an invasion of property rights to require a defendant to produce a copy of a specified letter written by plaintiff. In the ordinary course of business persons retain a copy of business letters. If the plaintiffs had done this such retention of a copy would not have invaded the defendants’ rights. By some accident or negligence the plaintiffs retained no copy. How are the defendants any worse off in giving a copy than they would have been if plaintiff had retained a copy when the letter was sent ? Not in any way.

As to the claim that the application should be denied because the plaintiffs do not state positively the contents of the letter, the plain answer is that if they knew the exact contents of the letter they would not need a discovery. The existence of the letter is admitted. The affidavit and the pleadings show unmistakably that it contains a modification, or what is claimed by defendants to be a modification, of the contract between the parties. The defendants do not deny this, and give no facts why they should not make discovery. Discovery cannot injure them. They do not claim that the letter is their affirmative defense.

The order appealed from is affirmed, with ten dollars costs and printing disbursements.  