Murdock v. Martin

• Decision Date: 03 February 1890
• Docket Number: 268
• Citation: 18 A. 1114,132 Pa. 86
• Parties: E. O. MURDOCK v. LUTHER MARTIN, ET AL
• Court: Pennsylvania Supreme Court

18 A. 1114

132 Pa. 86

E. O. MURDOCK v. LUTHER MARTIN, ET AL

No. 268

Supreme Court of Pennsylvania

February 3, 1890

Argued January 8, 1890

APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 1 OF PHILADELPHIA COUNTY.

No. 268 January Term 1889, Sup. Ct.; court below, No. 291 September Term 1886, C.P. No. 1.

On October 9, 1886, Edwin O. Murdock brought case against Luther Martin, Jr., and Robert W. Martin, surviving Luther Martin trading as L. Martin & Co., and on December 6, 1886, filed a narr declaring for the recovery of commissions claimed to be due from the defendants upon sales of lampblack under a written contract between the parties. On December 10th, the plaintiff filed a bill of particulars of his claim.

After an amended narr and a demurrer thereto had been filed and withdrawn, on October 1, 1887, the plaintiff filed a statement of claim under the act of May 25, 1887, P.L. 271 verified by affidavit and averring as follows:

"This action is brought against Luther Martin, Jr., and Robert W Martin, as surviving partners of the late firm of L. Martin & Co., upon a written contract dated January 24, 1884, and made between the said plaintiff and the defendants, together with their partner, Luther Martin, trading as aforesaid, whereof a true copy is hereto annexed, marked exhibit A, and whereof a ture copy is hereto annexed, marked exhibit A, and to be taken as a part hereof, for the recovery of the five per centum commission therein agreed to be paid to the plaintiff by the said firm. The said Luther Martin, the elder, died before by the said firom. The said Luther Martin, the elder, died before the bringing of this action, leaving the said two defendants to survive him. The plaintiff has fully performed his part of the said contract, and now claims in this action the said commission, from the date of the said contract, upon all deliveries and sales made by the said firm, as provided in the said contract. The said commission amounts to a large sum, whose precise amount cannot be stated, and is only to be ascertained from the books of the said firm, to which access cannot be had by the said plaintiff; the plaintiff believes and be had by the said plaintiff; the plainitff believes and claims that the amount due him and to be recovered in this action, will not exceed the sum of $100,000.

Attached to the foregoing statement, as exhibit A, was a copy of a contract between the defendant firm, of the first part, and the plaintiff, of the second part, containing seven paragraphs, certain of which were the following:

1. The party of the second part shall have the exclusive sale in the city of Boston, in the state of Massachusetts; in the in the city of Bostion, in the state of Massachusetts; in the cities of New York and Brooklyn, the state of New York; cities of New York and Brooklyn, in the state of New York; in the cities of Jersey City and Newark, in the state of New Jersey; in the city of Philadelphia, in the state of Pennsylvania; in the city of Baltimore, in the state of Maryland; and in the city of Chicago, in the state of Illinois, and in the places where the purchasers doing business in said cities have factories in which said lampblack is used, of the lampblack manufactured, supplied, or delivered to purchasers by the parties of the first part, for the period of ten years from the date of these presents.

2. The party of the second part shall use his best endeavors in effecting the sale of the said lampblack, and during the continuance in effecting the sale of the said lampblack, and during thecontinuance of this agreement shall offer for sale none other, without the consent in writing of the parties of the first part.

3. The party of the second part shall receive from the parties of the first part, and the parties of the first part hereby agree to pay to the party of the second part, upon all deliveries upon sales of said lampblack made by him or them in the places aforesaid, or made by the party of the second part elsewhere, a commission of five per cent upon the net price of said lampblack and its packages, at the place or places to which it is shipped.

4. When sales are once made by the party of the second part in other places than those specified in the first article of this agreement, to persons to whom the parties of the first part have not theretofore sold within one year preceding the date of the sale made by the party of the second part, then upon all future sales made to said persons, within the ten years aforesaid, whether through the party of the second part or otherwise, the party of the second part shall receive the commission specified in the third article of this agreement.

5. When sales are made by the party of the second part to persons in other places than those specified in the first article of this agreement, to whom the parties of the first part have sold within one year preceding the date of the sale made by the party of the second part, then the said party of the second part shall receive the commission mentioned herein, only upon each sale so made by him.

On the day the said statement was filed, a rule was taken upon the plaintiff to show cause why he should not file a more specific statement of claim, the defendant alleging the following grounds of insufficiency:

1. It does not appear from the said statement upon what the five per cent commission, to recover which suit is brought, is to be calculated.

2. The said statement is insufficient, because it does not contain in itself any intelligent statement of plaintiff's cause of action.

3. The said statement is insufficient, because it does not contain any specifications of time.

4. The said statement is insufficient, because it does not give the defendants any statement of the amount for which suit is brought.

On October 15, 1887, the rule was made absolute, and on October 21, 1887, the plaintiff filed the following additional statement, verified by affidavit and averring:

"1. That the five per centum commission is to be calculated upon the net price of all the lampblack and its packages at the place or places to which it was shipped and delivered upon sales of the said lampblack made by plaintiff or defendants in the places mentioned in the first clause of the agreement sued on, or by the plaintiff elsewhere. And also upon all sales, whether through the plaintiff or otherwise, under the fourth clause of the agreement sued on. And also upon each sale made by the plaintiff, under the fifth clause of the agreement sued on.

"2. That the time within which the said commissions were earned is from the date of the contract sued on until the death of Luther Martin; and thereafter, until the bringing of this suit, upon all deliveries upon sales within the terms of the agreement sued on, made in closing up the business of the said firm.

"3. That the amount for which suit is here brought is $50,000.

"4. That this additional statement is to be read into and as a part of the statement already filed, with the same effect as if repeated there, except as to the amount for which suit has been brought."

On October 24, 1887, another and like rule upon the plaintiff was taken, and like grounds filed therefor. This rule was made absolute on December 13th, and on December 20th, the plaintiff filed the following additional statement, verified by his affidavit:

"The said plaintiff, in obedience to the order of the said court, files the following additional statement of his claim, to be taken as a part of and read with the statement and supplemental or additional statement already on file.

"The plaintiff claims the commission of five per centum upon all the orders mentioned in the schedule hereto annexed and marked exhibit A, and also upon all orders sent direct to the said defendants, and not passing through the hands or coming into the knowledge of the said plaintiff, but upon which the said plaintiff is entitled to a commission, under the agreement sued upon. The plaintiff had no connection whatever with the shipments, and cannot now give a detailed list of them; they are well known to the defendants and could be easily furnished from their books, if access thereto would be permitted.

"The plaintiff is advised that he cannot be required to furnish to his adversaries, in advance of the trial, the evidence by which he will establish his claim."

Attached to this last statement was a list of sales to certain mercantile firms, the dates and items thereof being given, but without the amounts of the commissions claimed thereon by the plaintiff.

On December 21, 1887, still another and like rule upon the plaintiff was taken, and like reasons filed therefor, and on April 5, 1888, the following order was made: "Upon consideration of answer of plaintiff to rule of December 21, 1887, filed December 21, 1887, [not printed in paper-books], the court being satisfied of its insufficiency, the court enter a judgment of nonsuit." Thereupon the plaintiff took this appeal, specifying that the court erred:

1. In entering a judgment of nonsuit, although the statement contained a specific averment of facts sufficient to constitute a good cause of action.

2. In entering a judgment of nonsuit, though the statement contained as specific an averment of the amount claimed to be justly due, as the circumstances of the case, set forth specially, admitted of.

The judgment is therefore reversed, and a procedendo awarded.

Mr. John B. Uhle, for the appellant:

1. After the procedure act of May 25, 1887, P.L. 271, became a law, the courts of Philadelphia county adopted a rule of court providing that "plaintiff's statement shall contain a specific averment of facts sufficient to constitute a good cause of action." The statement filed in this case...