Ike Wertheim, Respondent, v. The Maintenance Company, Appellant

Ike Wertheim, Respondent, v. The Maintenance Company, Appellant. Second Department, December 10, 1909. Contract — master and servant — percentage of profits—pleading — allegations of performance — good plea not invalidated by defective one. ' A complaint which alleges "that defendant is indebted to plaintiff on an account . for service performed between certain dates in obtaining business pursuant to an agreement which is annexed and made part of .the,complaint, and that unti . the last of said dates plaintiff has performed said agreement on his part, states . a cause of action, although the agreement is to pay percentages on business procured, and there is no allegation as to the amount of business or that any business was procured, and no allegation of the services nor an account thereof annexed. A second cause of action alleging that "plaintiff entered upon his employment under said agreement and “ duly discharged all his duties thereunder and has performed all the conditions of such agreement on his part to be performed until January 25, 1908, and has ever since been and still is ready and willing to perform” and that defendant refused to allow him to do so to his damage, also states a cause of action, although it appears that the agreement was to remain in force only so long as the plaintiff continued to add at least §3,000 worth of new business each year, and no facts are alleged showing that the agreement was in force at the time of its alleged breach or that the plaintiff added the required amount of new business. That condition was to be performed by plaintiff, and the pleading is in effect that he performed all the conditions to be fulfilled by him. Where the answer alleges a release of all claims and a cancellation of the contract by plaintiff and the reply denies the signing and delivery of the instrument, a further plea that the cancellation of any contract between the parties, if made, was procured by duress, although bad, does not invalidate the previous good denial. Appeal by the defendant, The. Maintenance Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Kings on the 11th day of October, 1909, denying the defendant’s motion for judgment upon the pleadings pursuant to section 547 of the Code of Civil Procedure. ___ Wayland E. Benjamin [John H. Taylor with him on.the brief], for the appellant. Edgar M. Doughty, for the respondent. [MAJORITY — Thomas, J.:] Thomas, J.: The complaint purports to state two causes of action: (1) That defendant is indebted to the plaintiff on an account for services z performed by plaintiff for the d'efendant between November .1, 1902, and January 25, 1908, in obtaining business pursuant to an agreement between the parties, which is annexed and made a part of the complaint; (2) that plaintiff entered upon his employment under such agreement so made, and “ duly discharged all his duties thereunder and has performed all the conditions of such agreement on his part to be performed until January 25, 1908, and has ever since been and still is ready and willing to perform all the conditions of said contract on his part; ” that the defendant then refused and refuses to allow plaintiff so to do or to. pay him therefor to his damage $15,000. The defendant charges that the complaint does not state a cause of action in the first count because the defendant, agreed to pay percentages on business plaintiff procured, and that the complaint should show that plaintiff “ procured business of such an amount,” that plaintiff alleges an account but does not allege services nor annex an account, nor show that he got any business for defendant. The defendant contends that no cause of action is stated in the second- count as the agreement was “to remain in force so long as ” plaintiff continued “ to; add at least $3,000 worth of new búsiness per year,” and that the complaint states no facts showing that the agreement was in force at the time of the alleged-breach, as it does not appear that plaintiff added $3,000 worth of new business during the preceding year, and that this defect is not met by the statement that plaintiff discharged his duties'under the contract and performed - the conditions on his part to be performed,inasmuch as plaintiff did not undertake to add $3,000 worth of business per year or .to perform the condition to that effect. I think that the pleading is sufficient: As to the second count the condition was to be performed by plaintiff. One does not undertake to perform conditions, but the plaintiff was responsible for performance. If the condition was performed he was the one to do it-. So that the pleading in' effect is that he performed, all the conditions that were to be performed, that is, fulfilled by him. The first count is also sufficient. The statement' is that the defendant is indebted' to plaintiff' for work which the plaintiff did for defendant in obtaining business pursuant to the contract, which is annexed to the complaint and irfade part thereof. It is as if the agreement had been set out m extenso in the complaint, and statement made of work done thereunder, and that defendant was indebted therefor to the amount named. • Certainly there is a .statement of work done, and the - aggregate compensation stated, and both are charged to be pursuant to the contract. The pleading is fully sustained by Moffet v. Sackett (18 N. Y. 522, 525) and Farron v. Sherwood (17 id. 227). But • the defendant moves for judgment upon the answer and reply thereto. The answer pleads a written instrument signed and delivered by plaintiff, acknowledging the receipt of a sum of money in full of all claims under the agreement and canceling the same. The plaintiff replying, denies that he signed and delivered the instrument by denying -the allegations in the first and separate defense. Then in a separate paragraph the plaintiff alleges that “ the termination or cancellation of any contract or contracts between the plaintiff and the defendant was made (if any were made) by duress and threats bn the part of one of the defendant’s officers, in fear whereof and as a result whereof, the defendant obtained it, if any.” Hence we have a denial of the specific agreement, a charge that if any termination of any contract was made it was through duress of plaintiff. The plea of duress is bad. The pleader was required to plead to a specified instrument, not to any instrument, not to some possibly existing or possibly non-existing instrument. But does a bad plea subvert a previously good denial ? What is void could not make void what is valid. Finally, the plaintiff states that the $350 which the answer charges was received in discharge of claims was received for another purpose. This does not weaken the denial of the instrument. The order of the Special Term should be affirmed, with ten dollars costs and disbursements. Hirschberg, P. J., Woodward, Jenks and Millee, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.