Schroeder v. Fine

SEABURY, J. This appeal arises from an interlocutory judgment overruling the demurrer to_the first cause of action alleged 'in the complaint. The cause of action referred to is to recover commissions claimed to be due" the plaintiff as a salesman under a contract referred to in the complaint and annexed thereto. [1] The annexation of a copy of the contract to the complaint and the reference in the complaint to it is equivalent to a recital in the complaint of all the facts alleged in the contract. Spence v. Woods, 134 App. Div. 182, 118 N. Y. Supp. 807. [2] . The plaintiff’s right to commissions is based upon the claim that the defendants received orders “in and for” the territory in which the plaintiff was employed as a salesman. An examination of the contract makes it clear that, while the plaintiff was employed “as a traveling salesman” in a specified territory, he was not given any exclusive right to solicit orders for the defendants in that territory. Un [576] der this contract the defendants had the right to employ other salesmen within the same territory within which they employed the plaintiff to work. The fact that by the terms of the contract the plaintiff agreed to devote his entire time and attention to the business of his employers is entirely immaterial. The contract itself is not inconsistent with the right of the defendants to employ several salesmen on the same terms. The case of Taylor v. Enoch Morgan Sons, 124 N. Y. 184, 26 N. E. 314, upon which respondent relies, is not in point, because in that case the contract provided that the salesman “was to have the exclusive right to represent and sell defendant’s soaps in those states, and that he should not be interfered with by the company or its salesmen.” [3] The learned court below overruled the demurrer, upon the ground that the contract was ambiguous, and that paroi evidence might be introduced to show that the plaintiff had such an exclusive right to solicit orders in the territory specified. To us the contract seems clear and unambiguous, and no reason appears why the plaintiff should be permitted to go outside of it and add other terms to it. Moreover, the complaint nowhere alleges any exclusive right in the plaintiff. Judgment reversed, and demurrer sustained, wdth $10 costs and disbursements, and with leave to the plaintiff to plead anew within six days, upon payment of costs in this court and in the court below. All concur.