Townsend v. John B. Carter Co.

Scott, J.: We are of opinion that the complaint states a sufficient cause of action in equity against the appellant Carter Construction Company, and that its demurrer was rightly overruled. The agreement to pay plaintiff a percentage of the profits to be derived from certain contracts will bear the construction that the payment was to be of the profits as such. Furthermore, the agreement between the parties expressly provides for an accounting, and it is perfectly apparent that, on whichever side of the court the action is to be tried, there must ultimately be a long and complicated accounting. As to the John B. Carter Company, however, we can discern in the complaint no cause of action. It made no contract with plaintiff and owed him no duty, nor is it alleged that for any reason 974 it will be necessary to undertake to trace the profits into the hands of the John B. Carter Company. The order appealed from by the Carter Construction Company will, therefore, be affirmed, with ten dollars costs and disbursements, with leave to said appellant to withdraw the demurrer and answer within twenty days upon payment of costs in this court and in the court below. ' The order appealed from by the John B. Carter Company will be reversed, with ten dollars costs and disbursements, and the demurrer sustained, with ten dollars costs, with leave to plaintiff to amend his complaint within twenty days upon payment of all costs in this court and in the court below. Ingraham, P. J., Laughlin, Dowling andHotchkiss, JJ., concurred. Infirst case order re ver sed, with ten dollars costs and disbursements, and demurrer sustained, with ten dollars costs, with leave to plaintiff to amend on payment of costs. In second case order affirmed, with ten dollars costs and disbursements, with leave to defendant to withdraw demurrer and to answer on payment of costs.