, .' ."
((Jircuit Oourlj,8. :0. N6?/) York.
',!n aotion by one pa,rtnlilr jag,ainst.his c()mplalnt set out t.hat; Ii), the absence of the plalptlff, wIthout hIs consent or approval, the defendants maliciously wrote letters to.fourconsignors of the firm. naming them. :" apd others, "repudiatingcoptl'3cts already made. I'Ind that the, effect of the letters"was that or riJo'reo.f said consignors': tIJ;ereupon their . consIgnments, to plamtiff's 'damage, etc. The plaIntIff was reqUIred to serVe . 8 ibill: 0:1'; 'particulars in explanation of the phrases. "and others. "an'll" one or more'"of said consignors;I' Hll, did so by naming manufacturers. and statiiJgthat the personsreferred.to were all customers of the firm, and that ib'eir Danies would app ear frbm. .t.he books which were in the possession of the . defendll.nts. ,··Held, that ·the :bill wa$ sufficient. " . ,2. SAME., ..., ',,', , , ',The plaintiff alleged that he had, been injured by such conduct of the defend'ints to the amount of $25,O()(),' "independent of any alleged loss or profit shown by the books of the firm, as resulting from said,business, >J (of the firm,) " was required to servea. bin. of particulars specifying the items of damages;,' The bill, as served, set out ,that the damages were made up of a certain percentage of "business" for a certain time. Held, t'hat the bill was not suffiwas calculated not ciently:certain; the "businells" upon which the being ind,icated with clearnesl;l;, '
At Law. On motion for further bill of particulars. Action by :Edward F. Church against Emanuel and Charles S. Spiegelberg, to reqover damages for breach of contract. The complaint set out that the ·defendants and the plaintiff had agreed to go into the commission,busine$s,the,defendant!! furnishing the capital and the plaintiff the trade, a large fl,mount of which he controlled; that the firm was duly :formed, and tqe business commenced, when he was calledawaY1" and the defendants· maliciously, and without authority, wrote letters to manufacturers, whose custom formlld the ,most valuable part of the business of the firm, repudiating contracts already made, to his damage $25;000, etc. See 31 Fed. Rep.601. The defendants moved for a bill ofparticulars, and the motion was granted ; the order calling for" a bill Qf particulars specifying detail (1) the names of the persons designated by the phrase' and others, ' in the sixth line of folio 7 of the complaint herein, .. to whom defendants are therein alleged to have written letters repudiatingcontractsallilged to have,'l:!een made with the firm of E., F. Church & Co.; (2) the names of the persons designated by the phrase, 'one or more of said manufacturers,' in the first and sixth lines of folio 9 of the complaint herein, who are therein alleged to have withdrawn their accounts from the said firm of E. F. Church & Co. j (3) the items of the damages of $25,000, alleged in folios 16 and 17 of the complaint herein to have been sustained by plaintiff." The parts ofthe complaint referred to in the order were to the following effect, respectively: Jilirst, that the defendants wrote letters, as charged, "to each of said manufacturers, consignors of plaintiff, and said firm, as aforesaid, viz., [naming four,] and others;" second, that said letters "were duly received by each of'3aid man-
ufacturers, and caused one or more of said m.anufacturers to withdraw their consignments from said firm," etc.; third, that plaintiff had been injured thereby "to the amount of $25,000, independent of any alleged loss or profit, as shown by the books of said firm, as resulting from said business." The plaintiff served a bill of particulars, setting out, under the first clause of the order, that the persons designated as" and others" were manufacturers who were consignOJ;'s of the firm, and whose names would i appear from the books which in possession of the defendants. The' phrase, "one or more of said manufacturers," referred to in the second clause of the order, was also explained by a reference to' the books; the of however, being given. The amount of the damages was returned as follows: "Said itemis made up of 1 t per cent. upon $600,000 of business in the year 1884, amounting to $9,000; and the same per cent. on the same amount in the year 1885, amounting to 89,000; and the same per cent. on the amount of $500,000 in 1886, . amounting to $7,500." J. K. Hayward, for plaintiff. .8eligm<1l1l. for defendants.
LACOMBE,J. The motion for further bill of particulars underc1auses 1 and 2 of original order'is denied. That for further bill under the third clause is granted. It must be indicated with clearness what "business" it was upon which the H percent. is calculated. The complaint avers thlttthe loss was sustained "independent of any alleged loss or profit shown by the books of the fi,rm as resulting from said business," (of the firm.) If complainant expects to show that, but for the alleged ful conduct of his firm, thltt firm would have received in the years named a certain quantity of business, his profits thereon being H per cent. of such business, he should state so distinctly in his bill of particulars. The question whether or not that is the'proper way to ,show his da.mage is not now passed upOh, but, if complainaritexpects to rely upon such a statement of his loss,heshouldindicate that fact noW, that the defendant may prepare himself accordingly. In view of the fact that defendants have the books of the firm in their custody, no further detail as to the individuaHtems is required from the complainant.
FEDERAL REPORTER. THE JACOB BRANDOW. SCHIAFFINO v. THE JACOB BRANDOW.
l])iatr:ict (Jourt. E. D. South (Jarolina.
December 28, 1887.'
DEl-OSrrION-INTERRUPTION OF TAKING-ADMISSIBILITY OF PART TAKEN·
In Admiralty. J. P.K. Bryan, for libelant. J. N. Nathans, for respondent. SIMONTON, J. This case came on to be heard this day. It appears that the testimony of the master was being taken de bene eB8e, under order, before the clerk of this court, some months ago. During cross-examination, the interpreter, whose services had become necessary because of the ignorance of the English language on the part of the witness, lost his temper and left the clerk's office. The cross-examination could not be resumed or continued from the impossibility of obtaining another interpreter. The vessel left port the next day, (Sunday,) and witness went in her. The testimony, as far as it was taken, was produced, signed by the .master. It was objected to by Mr. Nathans, for respondent. The fixed and invariable practice of courts of justice has been, and is, not to admit testimony when the 'opposite party has not had full opportunity ofcl'oss-examination. 1 Greenl. Ev. §§ 445, 554. The point is discussed in Gass'v. Stinson,S Sum. 98. The general rule is stated as above, at least in the law courts, with the possible exception of the death of the witness before the cross-examination is concluded. A case was quoted in the opinion in which the testimony, taken before trial and interrupted in the cross-examination, was rejected, "because it was taken before issue joined, and might have been taken after." No other reason was given. Judge STORY, who delivers the opinion, says in substance that sometimes, in equity, (and the same practice, perhaps, should govern this court,) the testimony of a witness who has not been crossexamined is admitted. But he confines this doctrine to cases in which the failure to cross-examine was the fault of the party having the right to do so, and to cases in which it became impossible to get at the witness again. In the present case the respondent was not in fault. He was not bound to find an interpreter. The wHnp-ss was examined de bene eB8e fnr his own conv,enience. He departed the country of his own accord, ar d so prevented further examination. He can be examined again, as he is within reach of a commission. The testimony will not be admitted, and the case is continued.