McGinnis v. Studebaker

Denied April 6, 1915.

On Petition for Rehearing.

(147 Pac. 525.)

Department 2. Mr. Justice Harris delivered the opinion of the court.

The plaintiff has filed a petition for a rehearing, and he contends that the court misapprehended the issue presented by the pleadings. We made the statement, advisedly, that:

“The pith of plaintiff’s complaint is that the termination of his employment deprived him of the opportunity of selling to the prospective purchasers listed by him, and the evidence is largely directed to that phase of the case.”

*526The complaint alleges that:

“It is understood and agreed that the early portion of said year for which plaintiff was employed should be by plaintiff devoted to securing lists of prospective purchasers of said cars and in interesting prospective purchasers thereof in the types and models of cars manufactured by defendant, and said defendant therein and thereby agreed not to terminate plaintiff’s said employment until the end of said year, and to give plaintiff a reasonable opportunity to consummate sales to all such persons whose names were put on said list as might be desirous of purchasing any of the types of automobiles manufactured by defendant; that, in consideration of plaintiff’s services in securing purchasers of said output of defendant, said defendant promised and agreed to pay plaintiff 5 per cent of the factory list price of all automobiles for which plaintiff should secure orders and which plaintiff should sell from the output of said defendant, including automobiles manufactured by other firms and corporations, and which were acquired and offered for sale by defendant.”
“That plaintiff, on or about the said 21st day of January, 1913, began work under said employment, and for a period of about ten weeks thereafter devoted his time exclusively to securing lists of prospective purchasers of the various types and models of automobiles offered for sale by defendant, and to demonstrating such automobiles to said purchasers, and inducing said prospective purchasers to purchase automobiles of and from defendant; that, in violation of the contract and agreement aforesaid, said defendant during the said ten weeks failed and neglected to supply plaintiff with or keep on hand for plaintiff’s use any automobiles of the aforesaid types, known as Studebaker 35 and Studebaker 6, and plaintiff was thereby wholly prevented from making any demonstrations of said classes, although plaintiff had secured names of and entered into negotiations with many prospective purchasers, said persons being named in Schedule A annexed hereto..”

*527And then plaintiff details his grievance on account of the failure to supply sufficient ears for demonstrating purposes. Continuing the complaint asserts:

“That on or about the 8th day of April, 1913, plaintiff had secured and turned over to defendant, for the purpose of permitting defendant to keep a record thereof, a large list of the names of prospective purchasers of the various types of automobiles offered for sale by defendant, which list is hereto annexed and marked Schedule A, and plaintiff had expended a great deal of time and labor in securing said lists and in negotiating with said purchasers for the sale of each thereof of the various types of automobiles manufactured by defendant, and, had plaintiff been permitted to continue in his said employment for defendant, and had defendant kept and performed the said agreement of employment on its part, and supplied plaintiff with a sufficient number of demonstrating cars to enable plaintiff to demonstrate the merits thereof to the persons named in said lists and other prospective purchasers of automobiles, and supplied plaintiff with a sufficient number of automobiles to enable him to consummate sales to said prospective purchasers, plaintiff would have been able to realize as his commission under said contract on sales to be made by him during said year of his employment and from and after the said 8th day of April, 1913, the sum of $1,500.”

The remainder of the complaint, as we find it in the printed abstract, occupies about three pages, and, with the exception of the three clauses “or to any other persons,” “orto anyone,” “to any persons,” the listed prospective purchasers constitute the subject matter of such remainder of the complaint.

The alleged loss of opportunity to sell to prospective purchasers listed by plaintiff is the pith of the com*528plaint as plaintiff has told the story of his grievance in his written pleading.

The petition for a rehearing is denied.

Affirmed. Rehearing Denied.

Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Bean concur.