The action was for damages sustained by the plaintiff, the seller, because of the defendant’s refusal to accept delivery of certain carloads of flour under an entire oral contract „ of sale. One carload was accepted and the defendant refused to accept the remainder, claiming that the goods were not of the quality called for by the agreement, a counterclaim also being interposed for the amount of loss suffered by the defendant because of his acceptance of this portion of the flour. This counterclaim was not supported by proof, and the issue, as finally submitted to the jury, was whether or not the refusal to accept was' justified; if not justified, the plaintiff’s right of recovery of the amount claimed was apparently indisputable, since there was no contradiction as to the loss sustained because of a decline in the price of the goods, between appropriate periods, as proven. At least, the question of damages was so submitted to the jury without objection, but after the trial justice had fully charged upon the issues a number of requests to' charge were submitted by the plaintiff, and one of these, charged under exception by the defendant, was clearly erroneous and prejudicial.
As thus framed, the charge was:
“ That to entitle the defendant to recover he is hound to show by proof satisfactory to them (the jury) that the allegations of the answer, in respect to the terms of the contract and the reasons for refusing to take the remaining five carloads of flour, are true.” ■
There being no question of an affirmative recovery by the defendant in the case, this instruction operated to place the burden of proof upon him to disprove the plaintiff’s essential allegations as to the terms of the contract and' as to its breach; the mere statement, suffices to show the error committed since it is superfluous to cite authorities to the proposition that the plaintiff’s case must he proven by the preponderance of the evidence, and that the defendant, after interposing a general denial, is under no obligation to disprove that case.
*546We note that a point was made by the defendant upon this trial as to the insufficiency of the complaint, and, since the question may be raised at the next trial, we should, perhaps, consider it now. The complaint set forth the contract, the plaintiff’s readiness and ability to perform and' the defendant’s refusal to accept,. coupled with a general allegation of damage. Here, then, there was a cause of action alleged for the breach of the contract, but because there was only a general averment of damage, it was claimed for the defendant that the pleading was insufficient in that it was not made to appear that damages had accrued. The contention proceeds upon the failure of the complaint to state which one of the seller’s three remedies (Dustan v. McAndrew, 44 N. Y. 72) was sought to be invoked, and that if the plaintiff had been. put to a loss because of depreciation in the market price of .the goods, he should have alleged the fact that there was such dépreciation.
That this complaint set forth a cause of action was held by the late Court of Common Pleas when the question came up in the matter of an attachment (Duryea, Watts & Co. v. Rayner, 11. Misc. Rep. 294) and we find no reason for adopting any different view.
It may Well be. that the defendant could have moved for a bill of particulars, or that the complaint be made more definite and certain, but enough was alleged to support proof of the actual damage, such as was here offered, these damages not being special but simply general damages in one of three aspects. 2 Sedgwick Dam., § 753 et seq.; 2 Sutherland Dam., § 641; 1 id., § 52.
The case of Thompson v. Gould, 16 Abb. (N. S.) 424, appears to express a contrary view, but this adjudication was at Special Term, has not, apparently, been followed and the .argument is not found to be persuasive since -the presumption of damages arising from the breach of the contract was sufficient to render the complaint in that case proof against demurrer, 1 Sutherland Dam., § 9.
As has been said, however, a new trial must be had because of the error noted in the course of the instructions to the .jury.
Judgment reversed and new trial ordered,, with costs to appel- ■ lant to abide the event.
Daly, P. J., and MoAdam, J., concur.
Judgment, reversed and new trial ordered, with costs to appellant to abide event.