Arthur H. Richland Company v. Harper

• Decision Date: 27 April 1962
• Docket Number: No. 19125.,19125.
• Citation: 302 F.2d 324
• Parties: ARTHUR H. RICHLAND COMPANY, Appellant, v. Edward A. HARPER and Rose B. Harper, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

302 F.2d 324 (1962)

ARTHUR H. RICHLAND COMPANY, Appellant, v. Edward A. HARPER and Rose B. Harper, Appellees.

No. 19125.

United States Court of Appeals Fifth Circuit.

April 27, 1962.

Howard R. Hirsch, Miami, Fla., for appellant.

Norman C. Roettger, Jr., Fort Lauderdale, Fla., for appellees.

Before TUTTLE, Chief Judge, and BROWN and BELL, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This is another case proving that final disposition of a civil action on the basis of bare bones pleadings is a tortuous thing. How a standard so simply expressed, so often repeated, is apparently so often overlooked without even so much as a deferential mention of it is hard to understand. Although it seems now to be an affectation, we repeat it again, though citation of case names as a shorthand symbol of the principle ought to be enough. We have phrased it and rephrased it in these terms. "`* * a motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim * * *,' Des Isles v. Evans, 5 Cir., 200 F.2d 614, 615," Millet v. Godchaux Sugars, Inc., 5 Cir., 1957, 241 F.2d 264, 265. And within the very recent past the Supreme Court, which seldom has to deal with matters this close to mere procedure, has put its full approval on this approach. "* * * The Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is `a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests * * *," Conley v. Gibson, 1957, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80. See also Smoot v. State Farm Mutual Auto Ins. Co., 5 Cir., 1962, 299 F.2d 525.

So it is here. The complaint was for the recovery of a 5% commission for the sale of an Ohio business. As the business was not sold to a purchaser procured by plaintiff-appellant, his claim rested on the Ohio-approved doctrine of the grant of an exclusive right to sell, rather than a mere exclusive agency to sell. The distinction is recognized by Ohio in a case urged by both parties. Bell v. Dimmerling, 1948, 149 Ohio St. 165, 78 N.E.2d 49. If the contract grants a mere exclusive agency, the broker is entitled to no commission if the sale is procured by the owner, whereas if it is an exclusive right to sell, this comprehends any sales whether procured by the broker or owner.

With a precision now seldom seen, or perhaps for that matter required under F.R.Civ.P. rule 8(a), 28 U.S.C.A., this complaint spells this out in the plainest of terms. "In * * * August 1957, plaintiff * * * and defendants entered into an oral agreement whereby * * * defendants employed plaintiff to procure a purchaser * * *. The plaintiff was to act as the sole and exclusive agent for * * * renewable periods of 90 days subject to...