
    MILLS v. GOULD.
    
      New York Superior Court, Special Term;
    
    July, 1876.
    Gold Contracts.—Pleading.—Allegation of Offer and Demand.
    In an action against the buyer for "not accepting and paying on the seller’s offer of performance, the complaint must allege to whom the offer was made, and if the contract alleged makes the place material, the place of the offer must be stated.
    A general allegation that plaintiff offered to deliver is not enough.
    An allegation that defendant refused to accept, without alleging refusal to pay, &c., is not enough to show a breach.
    In the case of breach of a sale made subject to the rules of an Exchange, an allegation that after breach the plaintiff, in accordance with a rule of the Exchange, re-sold, and charged defendant with a deficiency, does not amount to an allegation of a rescission.
    Demurrer to complaint.
    Joseph G. Mills sued Jay Gould, John Doe and Bichard Roe, for damages for breach of an alleged contract to purchase gold.
    1. The complaint alleged that defendants were partners.
    
      3. Plaintiff was a stockbroker.
    3. On Sept. 34, 1869, plaintiff, by Ms agents, made a contract with defendants, whereby he sold them, and they bought of him, five hundred thousand dollars in gold coin, and agreed to pay him one dollar and sixty cents for each and every dollar thereof, amounting in the aggregate, to eight hundred thousand dollars in legal tender currency; which sum plaintiffs agreed to accept in payment, the said gold to be delivered to defendants on September 35, through the Cold Exchange Bank of the city of New York, the usual depository for such transfers of gold, according to the custom of brokers in such cases.
    4. That plaintiff duly kept and performed all the conditions and provisions of said contract on his part, and was ready and willing to deliver said gold at the time agreed upon, and offered to transfer and deliver the same in accordance with the terms of said contract, but the defendants failed to perform the contract, and refused to accept said gold ; and though requested on said 35th day of September, 1869, so to do, refused and still refuse to accept the same.
    5. That on September 30, the plaintiff, in accordance with the rule of the New York Stock Exchange in such cases made and provided, sold through the officers of said Exchange, the said five hundred thousand dollars gold at the then regular market rate of one dollar and thirty-two cents, and received, as the proceeds of the sale, six hundred and sixty thousand dollars, which he placed to defendants’ credit. That by reason of their failure to perform said contract he had suffered damages in the sum of one hundred and forty thousand dollars. The complaint then sets forth, in the same way, a second cause of action for the same amount, except the contract was made by Jameson, Smith & dotting, with defendants, who, it was alleged, has assigned the cause of action to plaintiff.
    
      The defendant Gould demurred to both causes of action, upon the ground that facts sufficient to constitute a cause of action were not stated.
    
      Thomas G. Shearman (Shearman & Sterling, attorneys), for the demurrer:
    I. The complaint does not show to whom or where plaintiff’s offer to deliver was made. On principle and authority, the complaint must show that the offer was made to the vendee, or else some excuse for the want of such personal offer must be alleged (Compare Traver v. Halsted, 23 Wend. 66; Hornby v. Cramer, 12 How. Pr. 490; and Smith v. Smith, 2 Hill, 351). No offer is even alleged to have been made to or at the bank.
    
    II. The complaint is otherwise vitally defective, because in the only allegation of readiness and willingness to deliver the gold, it is not averred that the plaintiff was ready and willing to make such delivery at the Gold Exchange Bank, which is the place of performance alleged in the complaint. The only averment is that of readiness to deliver “at the time agreed upon.” This is entirely insufficient (Clark v. Dales, 20 Barb. 43, 65).
    III. These defects cannot be remedied by reference to the allegation that the plaintiff offered to deliver the gold, ‘‘ in accordance with the terms of said contract.,” 1. The contract did not provide any specific mode for an offer of delivery, but prescribed that actual delivery should be made through the Gold Exchange Bank. For aught that appears, this offer may have been made to a stranger. That the conrt will not presume to the contrary, see Traver v. Halsted (23 Wend. 66). 2. This language simply sets forth a legal conclusion or inference drawn by plaintiff from facts which he does not state. But he is bound to state the facts (McKyring v. Bull, 16 N. Y. 297, 303; Buffalo v Holloway, 7 Id. 493; Lienan v. Lincoln, 2 Duer, 670, Schenck v. Naylor, Id. 675; Merritt v. Millard, 5 Bosw. 645; Van Schaick v. Winne, 16 Barb. 89).
    IV. There is no sufficient allegation of breach of the contract by. the defendants. Without this the complaint is bad (Newton v. Wilmot, 8 M. & W. 711, 722; Comyn Dig. Pleader C. 44; Lutweller v. Linnell, 12 Barb. 512). 1. The allegation that defendants "failed to perform ” is a mere conclusion of law (Van Schaick v. Winne, 16 Barb. 89, 95; Schenck v. Naylor, 2 Ducr, 675). 2. It is not averred to whom defendants refusal was addressed (Traver v. Halsted, 23 Wend. 66). 3. The allegation that “ though requested so to do,” defendants refused to accept the gold, is defective, for it is not said who requested them, and again it is not alleged to whom they addressed their refusal. 4. It is nowhere alleged that the defendants refused to pay for the gold, nor that plaintiff or any one else, ever demanded payment, or that payment was ever refused. For want of a demand of payment alone, this complaint would be bad on demurrer (Hagar v. King, 38 Barb. 200).
    V. Plaintiff’s allegation that he re-sold the gold under some rule of the Stock Exchange, and collected the price, destroys his claim to recover in this action. 1. Standing alone and unexplained, it amounts to a rescission (Fancher v. Goodman, 29 Barb. 315; Monroe v. Reynolds, 47 Id. 574; see Sloane v. Van Wyck, 4 Abb. Ct. App. Dec. 250). 2. The rule is not stated; and without it there are no facts to justify the re-sale. It does not appear that the sale was made in that Exchange, or any way subject to its rules. 3. It is not even alleged that the re-sale was made or intended to be made for the account of the defendants.
    VI. The re-sale not being lawfully made on account of the defendants, the complaint is bad, because there is nothing to show damage to plaintiff (Thompson v. Gould, 16 Abb. Pr. N. S. 424; Gould v. Allen, 1 Wend. 182; Rider v. Pond, 28 Barb. 447).
    
      
      Thomas S. Wentworth, for the plaintiff.
   Sedgwick, J.

The complaint is defective in not stating to whom and at what place the offer of perform r anee by plaintiff was made. It should also state particularly, what facts constituted the alleged offer of performance. There is ho allegation of fact in the complaint, but only a statement of a conclusion, as to, the breach by defendant. A refusal to accept from plaintiff might perhaps be evidence of defendant’s neglect or omission or refusal to perform his part, but it would not, under all circumstances, be conclusive evidence. The fact to be pleaded is what he did or did not, upon plaintiff’s offer or tender.

. In my opinion, the complaint is not defective by reason of the allegation as to the sale at the exchange.; The matter referred to does not show that the plaintiff" had not a cause of action, and is relevant, if at all, to-the question of damages. The allegations of the existence of the damage in the other parts of the complaint are sufficient.

The demurrer is sustained, with leave to plaintiff to amend complaint, and serve same within twenty days: upon payment of the costs of the demurrer.  