Bailey v. Savannah Guano Co.

86 S.E. 7, 101 S.C. 445, 1915 S.C. LEXIS 163

• Court: Supreme Court of South Carolina
• Decided: August 18, 1915
• Docket: 9161
• Status: Published

Opinion

The opinion of the Court was delivered by

Me. Justice Watts.

This is a suit to recover commission alleged to be due under contract of employment. The defendant demurred to the cpmplaint on the ground that it did not state facts sufficient to constitute a cause of action. His Honor, Judge Wilson, overruled the demurrer, and defendant appeals therefrom and makes two exceptions in the case, as follows: “1. That his Honor, the presiding Judge, erred in overruling defendant’s demurrer and in refusing to dismiss the complaint herein, upon the ground: ‘That the complaint does not state facts sufficient to constitute a cause of action, in that the contract set out in the complaint provides for a commission to plaintiff on all tonnage in excess of 1,500 tons shipped or delivered by defendant to plaintiff’s customers, and there is no allegation in the complaint that any tonnage in excess of 1,500 tons was shipped or delivered by the defendant to plaintiff’s customers, or that any tonnage was shipped.’ The error being that his Honor should have sustained the demurrer and dismissed the complaint for the reasons set forth in said demurrer.

2. That his Honor, the presiding Judge, erred in overruling defendant’s demurrer and in refusing to dismiss the complaint herein, upon the ground stated in said demurrer. The error being that it appears that the suit is for commissions alleged to be due under a written contract of employment, and the complaint fails to show that the conditions precedent to the payment of said commissions, and which conditions were fixed by the contract of the parties, have ever been fulfilled, and there being an express contract there can be no recovery upon a quantum meruit

1 These exceptions present a single question. It is contended by the defendant that the contract sued on is a conditional contract'and complaint contains no allegation of the performance of the condition, the condition being that the goods were to be delivered to the customers found by the plaintiff before his commissions were due. The contract is contained in two letters set out in full in the complaint. The complaint sets out a good cause of action; it sets out a contract whereby it can be inferred that the plaintiff’s commissions were based on business produced, and not goods delivered; by the terms of the contract the plaintiff had nothing to do with the delivery of the goods. When the plaintiff produced the customers he had performed his part of the contract, and it was then for the defendant to accept or reject the sale, and the complaint alleges that the sales made by the plaintiff were accepted or confirmed by the defendant.

2 The demurrer admits the facts as pleaded in the complaint, and complaint alleges specifically that the plaintiff has performed all the services that he was required to perform under the terms and conditions of the contract. That being admitted by the demurrer, the plaintiff has stated a cause of action that will entitle him to recover. We see no error on the part of the Circuit Judge, as complained of.

The exceptions are overruled. Judgment affirmed.