Simmons v. Peavy-Welsh Lumber Co.
| Decision Date | 23 July 1940 |
| Docket Number | No. 9269.,9269. |
| Citation | 113 F.2d 812 |
| Parties | SIMMONS et al. v. PEAVY-WELSH LUMBER CO. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Edgar J. Oliver and Dunbar Harrison, both of Savannah, Ga., for appellant.
A. B. Lovett, of Savannah, Ga., for appellee.
Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.
This is an action for broker's commissions alleged to have been earned in connection with the sale of timbered lands. The law of Georgia is clearly applicable to the controverted issues. This is undisputed, the only question presented being whether or not there was a contract, express or implied, for the payment of commissions.
The court below sustained a motion to dismiss, which raises an issue of law as to the sufficiency of the well-pleaded allegations of the complaint. The original petition was filed before the new federal rules of civil procedure became effective, but the court, finding no injustice would result, let the case proceed under the new rules, pursuant to Rule 86, 28 U.S.C.A. following section 723c. It was the duty of the court to construe the pleadings so as to effectuate substantial justice. Rule 8(f).
The complaint is in two counts, the first alleging an express contract to pay a commission of three per cent of the value of the land sold, the second alleging an implied contract to pay the reasonable value of the services rendered. It is true that both counts, well pleaded, might have been written on a page, so as to withstand the motion to dismiss, but appellant did not choose this method of pleading. The complaint and exhibits, with amendments, cover eighty printed pages, and comprise almost the entire record on appeal. The facts and circumstances are set forth in great detail, and general averments are repeatedly followed with an allegation that "all this will more fully appear" from a certain letter of a given date, copy of which is attached and made a part of the petition. We accept as true all of the well pleaded allegations of fact, but look to the exhibits themselves for the contents thereof.
Appellant now argues that, under Rule 8, it takes very little to state a valid claim, and says all that is needed is a short and plain statement showing that the pleader is entitled to relief. We heartily agree to this, and, if appellant had practiced accordingly, much labor might have been saved; but this course was not followed, even as to amendments made after the new rules became effective. No exhibits were ever stricken from the complaint, although the court below urged the plaintiff's counsel to indicate definitely each and every part of the exhibits relied upon as making a contract. In response to this, there was a further amendment presented by which twenty-one of the twenty-four exhibits, formerly a part of the petition, were reasserted in abbreviated form. In a brief...
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