Knight v. Emmons Bros.

Scott, J.:

The complaint alleges a refusal on the part of defendant to perform a certain contract, and asks damages for the breach. The contract, which is annexed to the complaint, creates plaintiff sole selling agent for defendant’s entire production of men’s and boys’ fur and wool hats for a certain specified territory, for which plaintiff was to be paid a stipulated commission. Upon its face the complaint states a complete cause of action, and is not obnoxious to a demurrer, which seems to have been sustained because it was assumed that defendant’s refusal might have been based upon its determination to discontinue altogether the manufacture of hats of the kind specified. No such fact is suggested by the complaint or demurrer. All we find is a complaint setting forth a contract and its breach. It was no part of plaintiff’s duty to assign a reason for defendant’s breach. That was a matter for defendant to plead.

If the defendant had answered and had set up as a reason for its action the discontinuance of manufacture there would have been presented a sufficient excuse. The contract, as pleaded, did not bind defendant to manufacture any particular number of hats, or any at all. All that it did undertake was that plaintiff should be the selling agent for such hats, of the kind specified, as defendant might manufacture, to wit, *753of defendant’s “ entire production.” If defendant elected to discontinue the manufacture so that there should be no production, there would be nothing for plaintiff to sell. But, as has been said, this question is not raised by the complaint and demurrer.

It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, with leave to defendant to withdraw the demurrer and answer upon payment of said costs within twenty days.

Clarke, P. J., Laughlin, Page and Shearn, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to defendant to withdraw demurrer and to answer on payment of costs.