The defendant has seen fit to allege in its answer ás' a. defense, arid by. way of counterclaim, that.the plaintiff failed to comply with its Contract, and that it failed to deliver goods of the quality and chajracter that it had warranted and represented ; that the defendant; refused to accept the goods tendered by the plaintiff; and that by reason of the premises it was obliged to purchase the goods, in the open -market-at $2.95 per pound, to the damage of the defendant! of $4,180. It is as to this defense and counterclaim that .the plaintiff demanded a bill of. particulars. The defendant is entitled to have the. question presented upon the trial whether it can reco ver as damages the difference between the contract price and the price at ¡which it was, compelled to purchase the. goods in the open market; and as the plaintiff has to meet that defense and counterclaim, it is,. I think,, clearly entitled to the particulars of the defendant’s claim so that it may be able to meet it. I agree in' the opinion, of. Mr. Justice S.oott in so far as it holds that the first arid third clauses in-the order should not. have been granted, but I think the; plaintiff was entitled to the bill of particulars required by the second and fourth clauses of the order.
I; therefore, think the order should be modified by striking out thei first and third clauses thereof,, arid as só modified, affirmed, without costs to either party.
McLaughlin, J., concurred.
' Order reversed, with . ten dollars costs and disbursements, arid motion denied,- with ten dollars costs.