Dean v. Davis

[167]

WOOD, J.

Plaintiff appeals from a judgment of dismissal entered after a demurrer to his first amended complaint had been sustained without leave to amend.

The first amended complaint allegéd in substance that in January, 1939, plaintiff and defendants entered into an oral agreement whereby plaintiff agreed to “directly or indirectly secure for defendant Harold M. Davis employment” with companies acceptable to said defendant; that “In consideration for securing the employment mentioned . . . herein said defendants promised and agreed to pay said plaintiff ten per cent of all moneys, income . . . over and above $3,250.00 annually earned and usual sales and traveling expenses annually expended by said defendant Harold M. Davis ... as a result of the employment procured by plaintiff . . . and as accepted by defendant Harold M. Davis”; that the agreement was to continue in force “until cancelled by the mutual consent of the parties thereto”; that “pursuant to the agreement,” plaintiff “procured and defendant Harold M. Davis accepted certain employment” on eight occasions during the years 1942 and 1943 with five different companies; that as a result of said employment defendants received as income during 1942 the sum of $33,390.23; that in violation of said agreement the defendants “knowingly” and “wrongfully” reported in writing to plaintiff on May 7, 1943, that their income in 1942 from said employment was $21,390.23 and paid to plaintiff as his share $1,139.35, whereas defendants actually received as the result of said employment during 1942 an income of $33,390.23, from which plaintiff should have been paid $2,556.32; that as a result of said employment defendants received as income during 1943 the sum of $57,070.22; that defendants “knowingly” and “wrongfully” reported in writing to plaintiff on May 8, 1944, that their income in 1943 from said employment was $45,070.22 and paid to plaintiff as his share $1,404.76, whereas defendants actually received as the result of said employment during 1943 an income of $57,070.22, from which plaintiff should have been paid $4,277.16; and that plaintiff had demanded payment of the balance due him from defendants but defendants had failed and refused to pay the same.

Defendants demurred upon the grounds that the amended complaint did not state a cause of action, and that it was ambiguous, uncertain and unintelligible.