Kinkade v. Champion Horse Shoe Co.

THE COURT.

This is an appeal from a judgment in plaintiff’s favor and also from an order of the court denying the defendant’s motion to tax costs by disallowing certain items charged by the plaintiff in his cost bill.

The complaint is in two counts, the first depending upon a written instrument alleged to have been made between the defendant and the plaintiff’s assignor, by the terms of which the latter was employed to engage in the sale of certain manufactured goods of the defendant at a salary of two hundred

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dollars per month from July 1, 1912, to January 1, 1913, and of $225 per month from January 1, 1913, to August 30, 1914. The plaintiff did not set forth the agreement in full, but only undertook to plead its substance. The second count of the complaint set forth a cause of action for money alleged to have been expended for the use and benefit of said defendant. A general and special demurrer was presented to the complaint, which was overruled by the trial court, and which ruling the appellant here assails as error.

Upon the several grounds of demurrer urged against the first count in the complaint, the appellant insists that the complaint is uncertain in failing to aver whether the plaintiff’s assignor performed any services or made any sales under said agreement. The complaint, however, does allege that the said assignor of plaintiff ‘ ‘ did engage in the sale of such goods for said company, and has fully and fairly performed all the conditions of said agreement on his part to be performed.” We think these allegations sufficiently informed the defendant as to the nature and scope of the plaintiff’s demands, especially in view of the fact that it is nowhere contended that the defendant did not at all times have in its possession a copy of the written agreement between the parties, and hence could not have been misled to its injury by the pleader’s attempt to briefly set forth the substance thereof.

The appellant’s contention that the second count of the complaint was defective in the respect that it did not set forth specifically the dates of any expenditures made by the assignor of plaintiff for the defendant’s use and benefit, is also without merit for the reason that this objection to the complaint was the proper subject of a demand for a bill of particulars if the defendant wished for more specific information as to the dates and items of the account.