Fawcett v. Edmund Peycke Co.

JAMES, J.

Appeal from a judgment by which plaintiff was awarded a sum of money in excess of two thousand dollars.

The defendant, during the time material to this controversy, was engaged in business as a commission merchant or broker handling fruits and agricultural products. It contracted with the plaintiff to ship and market crops of canteloupes and grapes produced during the years 1911, 1912, and 1913. The contracts covering the obligations of the parties were evidenced by letters. In brief, it may be stated, with which the uncontradicted testimony agrees, that the defendant, after the fruit was delivered to it, assumed the obligation to transport and market it, with full power in that connection, rendering an account to the plaintiff for the net proceeds therefrom. The compensation of defendant was a commission, that being definitely fixed by the agreement. The crops for the years mentioned were handled by the defendant and an account and return was made of the proceeds derived from the sale, less commissions, to the plaintiff. However, in addition to the returns of sale of the crops, the defendants collected various amounts of money from railroad and transportation companies on account of claims for damage resulting from the mishandling of plaintiff’s fruit. After the third-year crop had been marketed, the plaintiff claimed to have discovered that there was a large amount of money due him on account of these damage demands, which money the defendant had failed to include in its accounts and failed to pay over. It appeared in testimony that some

[594]

moneys had

been,

paid over,

but

that the amount for which the court awarded judgment remained in the defendant’s hands at the time the action was brought. Plaintiff by his suit assigned this failure to account as a breach of duty on the part of his agent; alleged that true accounts had not been rendered, and that he was unable to determine precisely what amount of money the defendant held to which the plaintiff was entitled. [1] 'The action in form was one for an accounting, which remedy the trial court enforced against the defendant. Plaintiff’s complaint contained five counts. These counts referred to the contract and employment of the defendant, first, for the handling of the canteloupe crop for the season 1911; second, for the handling of the grape crop for the season 1911; third, for the handling of the canteloupe crop for season 1912; fourth, for the handling of the grape crop for the season 1912; the fifth count referred to one contract with reference to the grape and canteloupe crops for the year 1913. Each count of the complaint was similar in form and language: It was set forth that under the agreement with the defendant, defendant was to account for all money received from the sale of the fruit “or any claim against any railroad company, or from any other source in connection with the sale, marketing and disposition of said” crops. The allegations of the complaint were sufficient, we think, to show that the defendant had received and failed to account to the plaintiff for money in excess of the amount of ¿he judgment. We do not think there was any such uncertainty about the allegations in these particulars as to make the complaint vulnerable to the demurrer of the defendant. [2] The trial judge made general findings, without separating the facts or assigning them to the several alleged causes of action, and determined that the amount for which judgment was awarded was due to the plaintiff. One of the contentions of appellant is that the findings are not specific enough in this particular; but in view of a stipulation entered into between the parties and filed in the case, we think that the findings were as specific as the court was required to make. In the bill of exceptions it appears that an itemized statement had been, before trial, filed among the papers of the case, and the terms of the stipulation thereto attached and signed showed that the paper contained a full statement of all the claims filed against railroad companies on behalf