Mitchell, Schiller & Barnes, Respondent, v. Follett Time Recording Company, Appellant

Mitchell, Schiller & Barnes, Respondent, v. Follett Time Recording Company, Appellant. First Department, February 17, 1911. Pleading—complaint in agent’s action for commissions—failure to allege facts — conclusions. A complaint in an action to recover for the breach of a contract employing the plaintiff as a selling agent on- certain commissions which merely sets out the contract of employment and alleges that the plaintiff has earned commissions under and by virtue thereof, has demanded payment, but that no part has been paid, and "that a certain sum is due and owing to him under- said agreement, does not state a cause of action, as conclusions only are alleged. Appeal by the defendant, the Follett Time Recording Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of January, 1911. ' Thomas E. O'Brien of counsel [Conway & Weed, attorneys], for the appellant. Leon Kauffman of counsel [Kauffman & Herzberg, attorneys], for the respondent. [MAJORITY — Clarke, J.:] Clarke, J.: Appeal from an order granting júdgment on the pleadings. The complaint alleges that plaintiff and defendant are corporations, that on or about the 11th day of December, 1901, plaintiff and defendant entered into an agreement-a copy of which is hereto annexed, marked Exhibit A, and made a part of this complaint; that plaintiff has earned commissions from the defendant*under and by virtue of said agreement and that - plaintiff has demanded the payment of-said commissions from the defendant but that no part' thereof has been paid; that there is now due and owing to the plaintiff,' as and for said commissions under said agreement, the sum of $30,000, for which he demands judgment. . The agreement was that the defendant does hereby constitute and appoint the' plaintiff its sole agent for the sale of time stamps and time recorders' in a designated territory.- The price of time stamps to the purchaser shall be forty-five dollars each, of which the plain tiff shall receive twenty dollars from the defendant. The price of the time recorders shall be one hundred and fifty dollars each to the purchaser, of which the plaintiff shall receive sixty-five dollars. In the event, however, of the plaintiff selling the time stamp at a price less than forty-five dollars or the recorder at a price less than one hundred and fifty dollars, or giving a discount, such reduction in price or discount shall be deducted from its commission, so that at all times' on all sales the defendant shall receive a net price of twbnty-five dollars on each time stamp aiid eighty-five dollars on each time recorder. This commission shall be paid oh all stamps and recorders sold in the above territory, whether the same be the first order or re-orders, and whether the purchaser shall" have heretofore been customers of the defendant or not, and regardless of whether the business shall have been' procured'through the efforts of the plaintiff or not. Defendant shall bill all stamps and recorders to the purchaser direct at the agreed price and upon receipt of payment the defendant shall remit to the plaintiff its commission thereon as above set forth, and the agreement was to continue for three years. To this coinplaint the defendant demurred on the ground that it did not state facts sufficient to constitute a cause of actiop, whereupon plaintiff moved for judgment upon the pleadings undei section 547 of the Code of Civil Procedure, and the motion having been granted, defendant appeals. The demurrer was well taken. There is not a fact stated sufficient' to constitute a cause of action. There are mere conclusions, that the plaintiff has earned commissions, has demanded commissions, and that there is owing $30,000. How it has earned commissions, upon what sales or transactions such commissions were based and how the sum claimed was arrived at, is not disclosed or suggested; The order appealed. from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs to the appellant. Ingraham, P. J., Laughein, Miller and Dowling, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.