Sherwin Williams Co. v. Feld Bros. , 139 Miss. 21 ( 1925 )

^* Headnotes 1. Sales, 35 Cyc., p. 551; 2 Pleading, 31 Cyc., pp. 581 (1926 Anno), 651. The appellant was plaintiff below and filed a suit against the appellees on an order for two hundred and fifty Springfield sprayers given to the Springfield Dry Powder Sprayer Company and assigned by it to the appellant. The order contains, among other things, the following:

"Please accept our order for Springfield sprayers as follows: two hundred and fifty Springfield sprayers at ten dollars sixty-two and one-half cents, total two thousand six hundred fifty-six dollars and twenty-five cents. This order is taken with the understanding that Springfield Sprayer Company are to send representative to work territory with Feld Bros. Co., and he is to secure orders for fifty per cent. of this contract. Should Feld Company increase order to five hundred they are entitled to twenty per cent. on this order and all future orders."

The original declaration did not contain an allegation that the representative so stipulated for was sent and secured the orders as therein provided. Said contract was made an exhibit to the declaration and a demurrer was filed and sustained by the court. An amended declaration was also filed and demurrer sustained to that. Thereupon the second amended declaration was filed and averred, among other things:

Plaintiffs further aver that the said Springfield Dry Powder Sprayer Company had its representative, Mr. Richard Benson, in obedience to its said contract, work or canvass the territory of the defendants along with a representative of the latter, covering a period of about thirty days during the months of January and February, 1920, and that while only one of said machines was sold by said representative of the said sprayer company, some of those subsequently sold by defendants afterwards, to-wit, about one hundred and twenty-five, that is the sales of one hundred and twenty-five of said machines, were superinduced by said canvass of the said representative of the said sprayer company, and that no more of said machines were sold by the said sprayer company, or its representative."

The defendants thereupon filed a motion to make the said declaration more definite and certain because said declaration was so indefinite and uncertain that the precise nature of the complaint set forth is not apparent, so that the defendants can properly plead thereto, wherefore they moved the court to require plaintiff to set forth in plain and definite terms how said alleged sale of about one hundred and twenty-five of the machines sued for was superinduced; also, what is meant by the plaintiff by the word "superinduced" as used in the said declaration, and to give the times, places, and names of the persons to whom the said alleged sales were made; the persons present, and the circumstances and facts upon which the plaintiff relies, in alleging that said sale was "superinduced" by their said representative; and further that the word "superinduced" is a mere conclusion of the pleader and does not advise the defendants or tend to establish such conclusion. This motion was sustained by the court, and the plaintiff declined to furnish said bill of particulars or to make the pleadings more specific. Whereupon judgment was entered striking the declaration from the files and entering judgment for the defendants, from which judgment this appeal is prosecuted.

We think the motion was properly sustained requiring the plaintiff to make their pleadings more definite so as to set forth the facts relied upon. It is contended by the appellant that this part of the contract set forth was not a condition precedent, and that at all events the plaintiff was entitled to recover to the extent of fifty per cent. of the order or value of the sprayers.

The agreement referred to is an important provision in the contract, and whether the plaintiff had complied with it was material to the suit, and all facts with reference thereto should be alleged with reasonable certainty.

As we view the judgment rendered, it was in effect a nonsuit and would not prejudice plaintiff's right to file a suit for fifty per cent. of the amount of it if advised that that would be the extent of its right, or to file a new suit giving specific information as to what had been done in securing the orders, giving the times, places, and persons relied on to constitute a compliance with the said provisions. However, as plaintiff declined to either elect to sue for one-half or to give the specifications called for, the court did not err in awarding a nonsuit. The judgment will therefore be affirmed.

Affirmed.