82 Md. 459 | Md. | 1896
delivered the opinion of the Court.
On the 22d of November, 1889, the appellant, his wife and another entered into an agreement with the appellee for
On the 6th of May, 1895, the appellee filed in the Court below his bill in equity against the appellant, setting forth substantially the provisions of said agreement, the material facts of which have been incorporated in the statement already made. The original of said agreement is filed with said bill as an exhibit and part thereof. The bill contains the further statement that at the expiration of the first year the parties to this appeal entered into a verbal contract which is wholly disconnected with the agreement exhibited with the bill, and is to this effect, that the appelllee having failed to sell one hundred gross of said preparation within the first year of his employment under said agreement, as stated, he continued in the employ of the appellant, and sold said remedies on commission during the second year and thereafter, and that while he continued to sell on commission the sales gradually fell off, and in consequence the amount paid to the appellee on account of royalty diminished, until finally little or nothing was received from this source.
A word of comment here in passing. After the appellee
The bill prays that the appellant be required to account under oath for all sales made by him of the aforesaid preparations during the year beginning the 22d of November, 1889, and ending on the 21st of November, 1890 ; and also calls for the statement of all sales made since the said last-mentioned date, and the quantity of said preparation he has at present on hand unsold; and further prays, that if it should be made to appear that the appellant did not report the true amount of sales made by him during the first year, and that the quantity sold exceeded one hundred gross of said preparation, that then the appellant be required to pay to the appellee the same salary for the second year as was agreed to be paid for the first.
. As the demurrer which the appellant has interposed to this bill goes to the whole bill, we have thought it proper to state at length all the facts material to the proper consideration of the questions at issue. On May 20th, 1895, the appellant filed in support of his demurrer the following reasons:
1st. Because more than three years have elapsed since the matters complained of in the years 1889, 1890, 1891 and 1892.
2d. Because the agreement filed as “ Plaintiff’s Exhibit No. 1,” claimed to be the basis of plaintiff’s right of action, shows that plaintiff has now no claim against this defendant.
3rd. Because no facts are alleged to sustain or justify the allegations of the plaintiff’s irreparable injury, and as the bill of complaint itself shows that this defendant'is solvent, plaintiff had full, complete and adequate remedy at law.
The first reason assigned substantially sets up the Statute of Limitations as a bar to the maintenance of this action.
The appellee, in his brief, says:. “ Conceding that limitation would apply to claim for salary, but not to other part of claim, demurrer ought to be overruled as to first ground.” We think this proposition is not sustained by any authority; certainly none to which our attention has been called. We have looked with patient care for the “ other part of claim,” to which limitation, it is alleged, did not apply, but have failed to discover it. It is universally conceded practice in Courts of Equity that several causes may be assigned for demurrer, and if one be good and the other bad, the demurrer will be sustained, since the defendant may at the argument on terms assign new causes of demurrer. Story v. Eq. Pl. (5th ed.), sec. 443; Cooper's Eq. Pl., 112; Jones v. Frost, Jac. 468.
In so far as we have been able to ascertain from the provisions of the bill of complaint, there is no allegation of any claim or statement of any facts sufficient to relieve it of the bar of the statute, and this being so, it comes within the ruling of this Court in Biays v. Roberts' Administrator, supra.
Whilst from the view we have taken of the first ground assigned in support of the demurrer, it will not be necessary to give extended consideration to the second and third reasons, we will yet briefly consider them together in their
The circumstances of the waiver are not explained, and we fail to recognize in the statement of the bill any facts ■pertinently bearing upon the subject or as directly tending to show how the appellant by his conduct has established a waiver. The demurrer unquestionably admits the truth of the facts stated in the bill, so far as they are relevant and well pleaded, but not conclusions of law or theories of construction drawn therefrom. We find nothing in the record sustaining the appellee’s contention on the question of waiver; and giving proper construction to the sixth clause of said •agreement, there is no ground for the assertion that the condition in the sixth clause of said agreement has been waived by the appellant. It is then very clear that the appellant could not be required after the expiration of one year from the date of said agreement to pay any further royalty to the appellee. As to the third assignment, little need be said. If the appellee has a remedy under said agreement it is as to jurisdiction concurrent, and may be maintained either in a Court of Equity or in a Court of law.
It is stated in this bill, and admitted by the demurrer, that the appellant is a man of means, and abundantly able to carry on the business contemplated by the agreement of the parties; there is, therefore, nothing in the charge of irreparable injury, and if the appellee had sued at law, instead of in equity, the appellant would have been, according to the allegations of the appellee, able to respond to such a verdict as might have been recovered against him. A Court of Equity has, however, first assumed jurisdiction of the cause; it wiil, therefore, be permitted to retain it. The motion to dismiss must be overruled. Chappell v. Funk, 57 Md. 471, 475; Hecht v. Colquhoun, 57 Md. 563. For the reasons assigned the order of the Court below overruling the demurrer must be reversed.
Order reversed and cause remanded for further proceedings.