Legum v. Campbell

Erale, J., delivered the opinion of the Court. The bill of complaint in this case alleges that the defendant, being’ engaged in the business of selling and distributing Chevrolet automobiles, employed the plaintiff as sales manager under an agreement in writing, filed with the bill, which provided that the employment should continue from April 1st to December 31st, 1922, and that the plaintiff should be paid for his services a weekly salary of fifty dollars, and at the termination of the agreement an additional sum amounting to five per cent of the net profits of the business. The agreement was verbally renewed and continued in force, as the bill avers, until October 14th, 1924, when it was terminated by mutual consent. It is alleged that the plaintiff fully performed the service required of him by the agreement, but that the defendant, though frequently requested, refuses to account for the plaintiff’s share of the net profits of the business for the period of the employment.

It is, therefore, prayed that the defendant may answer under oath and make discovery of the receipts and expenses of the business from April 1st, 1922, to October 14-th, 1924, and account with the plaintiff for his share of the net profits. The case is brought to this Court by the defendant’s appeal from an order overruling a demurrer to the bill. The grounds of the demurrer are, that the bill does not state facts which entitle the plaintiff to relief in equity, and that the plaintiff appears from the bill to have been guilty of laches. ¹⁵⁰ Under the terms of the agreement, the plaintiff’s percentage of the profits was not to be paid him until the expirav tion of the contractual period of his service. That period was extended, as alleged, by a verbal renewal of the agreement, until October 14th, 1924, and the bill was filed within two months after that date.

The defense of laches is clearly not sustainable. In support of the other ground of demurrer it is argued that the bill is deficient in not alleging that profits were in fact realized from the business in which the plaintiff was employed, and in not stating the terms upon which his contract of employment was renewed, and it is specially contended that the bill mentions no conditions which would prevent the plaintiff’s resort to an action at law for adequate relief, or would authorize a court of equity to decree discovery and accounting. The accrual of profits from the business is implied in the allegations of the bill, and as the defendant had full and direct knowledge of the facts, it was not necessary, for the purposes of his defense, that the statement of the bill on that subject should be more explicit. The averment that the contract of employment was verbally renewed is equivalent to an allegation that it was continued on the same terms.

The existence of a right on the part of the plaintiff to bring an action at law for the enforcement of his claim would not be a sufficient reason for sustaining the demurrer to the pending bill, if there is any ground upon