Good v. Daland

Headnote

Pleading—Complaint—Causes of action—Joinder, of parties.

The complaint alleged an agreement between plaintiff and defendant,, the latter acting in behalf of a corporation, that the corporation should pay a certain percentage of the receipts derived from the sales of the products of certain patents owned by plaintiff; that periodical statements of the sales should he rendered; that on failure to pay, defendant could sue the corporation. The complaint further avers a default in the per-6 formance of the agreement on defendant’s part, and asks for an accounting, for a judgment against defendant, and for other relief, etc. Reid, that hut one cause of action is stated. As defendant D. was interested in the accounting by the corporation, there was no misjoinder of parties.

Appeal from an interlocutory judgment overruling demurrers of the respective defendants to the complaint.

The demurrer of each defendant states the same alleged grounds of objection:

First. That causes of action have been improperly united.

Second. That the complaint does not state facts sufficient to constitute a cause of action.

Each demurrer admits, among other things, these allegations of the complaint, namely: that the defendant, William S. Daland, being authorized by the defendant, the Tucker & Carter Cordage Company, entered into an agreement in writing with the plaintiff, whereby, for considerations appearing in such agreement, Daland agreed that certain periodical statements of sales should be rendered by his co-defendant, the Tucker & Carter Cordage Company, to the plaintiff, and a certain percentage paid by the company to him; and whereby it was mutually agreed that such agreement might, on certain conditions, be terminated by the defendant Daland at his election, by certain written notice to plaintiff; and whereby the defendant Daland agreed that if his co-defendant, the Tucker & Carter Cordage Company made default in rendering such periodical statement, or in payment of such percentage, he, Daland, should promptly bring suit against said co-defendant and “use all diligence in prosecuting an action for the collection thereof; ” that plaintiff has complied in all respects with those terms of the agreement which, on his part, were to be performed, and that no notice seeking to terminate the agreement was ever given by defendant Daland; that such sales have been made by the Tucker & Carter Cordage Company; that no such statement thereof has been rendered or payment made; that plaintiff is ignorant of the amount of such sales, and that the defendant Daland, at the suggestion of the cofendant, the Tucker & Carter Cordage Company, has refused to comply with such provision of the agreement requiring him to bring suit against his co-defendants, and use all diligence in prosecuting an action for the collection of such percentage from them, although requested by the plaintiff to comply with these provisions of the agreement.

The relief asked by plaintiff was, among other things, that the rights of plaintiff and the liabilities of defendants might be established and an accounting be had of the sales in question, and for certain judgment thereupon against the defendants, as well as for such further, other or different relief as might be just.