SAMUEL B. ROSENTHAL and CHARLES SAVAGE, Copartners, Doing Business under the Firm Name and Style of S. B. ROSENTHAL AND COMPANY, Respondents,
EDWARD RUBIN, Appellant.
APPEAL by the defendant, Edward Rubin, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 7th day of October, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant's demurrer to the amended complaint.
Charles Goldzier, for the appellant.
Alex. B. Greenberg, for the respondents.
Appeal from an interlocutory judgment overruling demurrers to the first and third causes of action set out in the complaint, upon the ground that neither of them states facts sufficient to constitute a cause of action. The demurrers were overruled, as appears from the opinion of the learned justice sitting at Special Term, upon the ground that each cause of action was predicated, not upon the plaintiffs' performance of the contract, but upon the ground that such performance had been prevented by the defendant, and, therefore, need not be alleged.
In the first cause of action the plaintiffs allege, in substance, a contract by which the defendant employed them as his agents for a period of eleven months from February 1, 1910, to sell furs in a certain territory upon a stated commission; that by the terms of the agreement the plaintiffs, at their own cost and expense, were to employ salesmen, furnish them with trunks, advance their traveling expenses, and also advertise defendant's goods; that the defendant agreed to advance to the plaintiffs the sum of $30,000 on account of future commissions, and to pay that sum in three installments of $10,000 each on the first days of March, May and June following the making of the contract, the amount thus advanced to be deducted from the commissions when earned; that 'the plaintiffs entered upon the performance of their said contract and performed the same fully and entirely until about the 15th day of June, 1910,' when the defendant wrongfully discharged them; that no part of the $30,000 has been paid, except the sum of $5,000, and the balance is still due and owing, for which judgment is demanded.
The third cause of action sets up the same agreement, contains the same allegations as to performance and discharge, and then alleges that the amount of sales made by defendant, through plaintiffs' efforts, before and subsequent to the discharge, entitle the plaintiffs to a commission of $43,500, against which is credited the sum of $30,000; that is, the amount agreed to be advanced, leaving a balance due of $13,500, for which judgment is demanded.
The point of the demurrer to each cause of action is that the performance of conditions precedent is not sufficiently alleged; that the allegation 'that the plaintiffs entered upon the performance of their said contract and performed the same fully and entirely until about the 15th day of June, 1910,' when they were wrongfully discharged, is not equivalent to an allegation that the plaintiffs 'duly performed all the conditions' of the contract on their part to be performed. Section 533 of the Code of Civil Procedure provides that in pleading the performance of a condition precedent in a contract it is not necessary to state the facts constituting performance, but the party may state generally that he duly performed all the conditions on his part.
In Feuerstein v. German Union Fire Ins. Co. (141 App.Div.
456), where an action was brought upon a fire insurance policy, the plaintiff alleged that he had complied with each and every one of the terms, conditions and agreements of the policy on his part to be kept and performed. It was held that this was not equivalent to an allegation that he 'duly performed.'
In Hilton & Dodge Lumber Co. v. Sizer & Co. (137 A.D. 661) it was held that a general allegation that the plaintiff had performed on its part all of the terms of the agreement did not sufficiently allege ...