Brown v. E. H. Clement Co.

*510 Connor, J. It appears from the affidavit filed by the plaintiff with the clerk of the Superior Court of Durham County, in support of bis motion for an order for the examination of certain officers and employees, and of the books and records of the defendant, that tbis is an action to recover on a contract for services rendered by plaintiff to the defendant. Plaintiff alleges tbat defendant agreed to pay bim a certain percentage of the profits made by the defendant on certain construction work for Duke University. Tbe action is to recover the amount due under the contract. It is not an action for an accounting. Tbe amount now due the plaintiff by the defendant cannot be determined by the plaintiff without certain information now in the exclusive possession of the defendant. It has been held tbat an examination of the defendant, or where the defendant is a corporation, of its officers and employees, cannot be bad merely to enable the plaintiff to allege the exact amount to which be is entitled, or to make air estimate of the damages sustained by bim, unless the dealings between the parties were of such a character tbat the amount sued for cannot be otherwise approximately stated. 18 C. J., 1088. It appears from the affidavit filed by the plaintiff in tbis case, tbat the dealings between plaintiff and defendant were of the character stated in the exception to the general rule. Tbe contention of the defendant tbat no examination of its officers and employees, or of its books and records, should be bad, until the issue raised by its denial of the contract as alleged by the plaintiff has been tried and determined favorably to the plaintiff, cannot be sustained. Tbe authorities in tbis and the decisions in other jurisdictions cited by the defendant are not applicable in tbis case. Tbis appeal must be dismissed on the authority of Johnson v. Mills, 196 N. C., 93, 144 S. E., 534. As said in the opinion in that ease, when a proper order for the examination of the officers and employees, or of the books and records of a corporate defendant, has been duly made, an appeal from the order for such examination to this Court is premature, and will be dismissed. The authorities cited in the opinion in that case support tbis principle. The appeal in the instant case is dismissed without prejudice to the right of the defendant to move, if so advised, in the Superior Court, before the judge or the clerk, for a modification of the order for the examination by the plaintiff of its books and records, to the end tbat only such books and records as contain information pertinent to plaintiff’s cause of action, shall be produced by the defendant and submitted to examination by the plaintiff. It would seem tbat the plaintiff should be required to designate specifically the books and records which be contends contain the information to which be is entitled. At least after *511 his examination of the officers and employees of the defendant, named in the order, the plaintiff will doubtless be able to do this, and thus have ample opportunity to secure the information to which he is entitled, without a denial of the right of the defendant to be protected from “a drag-net” examination of all its books and records. The appeal is Dismissed.