71 Fla. 122 | Fla. | 1916
The first count of the declaration in effect alleges that the plaintiff Stovall was employed by the defendant company as its agent at Apalachicola, Florida, the plaintiff agreeing to give his services, maintain an office, employ a clerk, hire a horse and driver to deliver express packages, all of the expenses of maintaining such office, including clerk’s salary, driver’s wages and horse hire to be paid by the plaintiff, all for an agreed compensation of five per cent on all revenues accruing to the defendant for freigffit or shipments handled by said, agency, which commission the defendant promised the plaintiff would averag-e not less than $235.00 per month; that it was agreed that during the months of April, May, June, July and August the revenues would be light and not sufficient to pay the office expenses but that in the other months the revenues
The second count alleges in effect that the defendant promised to pay for the employment a five per cent commission and g-uaranteed and promised the plaintiff his said commission would average not less than $235.00 per month.
It cannot be said that the allegations of the first and second counts are so defective as to wholly fail to state any cause of action. The evidence clearly shows that the employment extended only from April 15th, 1912, to August 1, 1912, three and one-half months. As the evidence does not show an employment for a definite period or a promise to pay for each month a commission equal to the average of five per cent on receipts for a year, a recovery under the first count could not be sustained. If the verdict was found upon the second or third count it cannot be sustained, because the evidence does not sustain the allegation of the second count of an employment at $235.00 per month or the allegation of the third count of an employment for a period of one year. As there was no evidence- of the value of the services rendered the verdict has no support in the other counts of the declaration.
The judgment is reversed and a new trial granted.