198 A.D. 540 | N.Y. App. Div. | 1921
The complaint herein sets forth eight causes of action to which the defendants have answered and have set up as separate defenses to the first, second and third causes of action that they did not accrue within six years next preceding the commencement of this action; and as to the fourth cause of action that so much thereof as is based on the alleged services rendered by the plaintiff between July 1, 1914, and November 21, 1914, did not accrue within six years next preceding the commencement of this action. The defendants moved to compel the plaintiff to reply to these separate defenses pursuant to section 516 of the Code of Civil Procedure, and from the order denying this motion the present appeal is taken. The first four causes, of action are based upon the same theory. Taking the first cause of action as typical, the complaint alleges that the defendants, who are copartners, in or about the month of December, 1911, at the city of New York, entered into an agreement with plaintiff whereby he was employed by them as traveling salesman for the period terminating July 1, 1912, and as compensation therefor the defendants promised and agreed to pay him, in addition to traveling expenses, a commission equal to five per cent upon all merchandise sold to the wholesale trade as well as upon all renewal orders from such trade within the territory assigned to this plaintiff, and a commission of seven and one-half
The complaint then sets forth:
“ 4. That the defendants furnished unto this plaintiff a statement purporting to be the amount of business representing sales made by the defendants in the period aforementioned and in the territory aforementioned during the course of the agreement aforesaid and on account of which this plaintiff was entitled to be compensated, but said statement was false and untrue in that it did not fully and correctly set forth the entire amount of business done and merchandise sold by the defendants under said agreement within the territory referred to for the period aforesaid, but defendants concealed from this plaintiff the true and correct amount thereof. That the exact amount of business transacted by the defendants and upon which, this plaintiff is entitled to compensation as aforesaid is unknown to this plaintiff but is in the aggregate sum of at least Twenty thousand dollars ($20,000).
“ 5. Statement made as aforesaid and delivered to this plaintiff by the defendants was inaccurate, false and untrue and known so to be by the defendants at the time the same was delivered and made unto this plaintiff, and such statement was so made unto this plaintiff for the purpose of defrauding this plaintiff out of the commissions to which he was entitled and for the purpose of inducing this plaintiff to believe*543 that the amount of business transacted by the defendants upon which plaintiff was entitled to commissions was a much smaller amount than the actual amount of such business and for the purpose of inducing this plaintiff to rely upon such statement in computing the commissions due him and in accepting his amount credited to him by the defendants. That this plaintiff relied upon the truth and accuracy of said statement and believed the same to be true to his damage in at least the sum of Five hundred Dollars as aforementioned and this plaintiff did not ascertain that said statement was false and untrue until in or about the year 1920.”
The second cause of action is based upon a contract of employment made July 1, 1912, for the period of one year thereafter, upon which a balance of $950 is claimed to be due. The third cause of action is based upon an agreement made July 1, 1913, for the ensuing year, upon which the sum of $950 (also stated to be $625) is alleged to be due. The fourth cause of action is based upon a contract made July 1, 1914, for the ensuing year, upon which a balance of $950 is alleged to be due. The only judgment demanded is a money judgment for the respective amounts hereinbefore stated.
The determinative question upon this appeal is whether the complaint herein sets forth causes of action on contract or on fraud. An examination of the complaint leads to the conclusion that what the pleader has alleged is a cause of action on contract. Plaintiff was employed by the defendants under a contract by which he was to receive commissions, the amount thereof to be computed upon the basis of statements to be furnished to him by the defendants prior to or at the expiration of the term of his employment. He is suing for the value of services rendered by him, the amount thereof being. fixed by his contract. The method of computation thereof is fixed by his contract which defines the percentage he is to receive upon the basis, of statements to be furnished to him by the defendants. The defendants’ agreement to furnish him with a correct statement of his transactions with them is as much a part of the contractual undertaking of -the defendants as any other part of the agreement. What plaintiff seeks to recover in this action is the agreed value of the services he performed. He has alleged what the value
The case at bar is similar in principle to that of Carr v. Thompson (87 N. Y. 160). There the defendant had been employed as an agent to purchase goods for plaintiffs upon a commission basis; through a series of years he acted in this capacity, receiving and paying out to plaintiffs’ account large
The conclusion thus reached that the cause of action is one on contract renders unnecessary the determination of the
Clarke, P. J., Page, Merrell and Greenbaum, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs