
    George F. Gminder, Respondent, v. Zeltner Brewing Company, Appellant.
    First Department,
    June 12, 1908.
    Contract for services construed—conditions precedent to payment — pleading.
    Action to recover money alleged to be due under a contract of employment. The parties entered into an agreement whereby the plaintiff and another were to devote their entire time toward procuring customers of a certain brewing company to purchase lager beer exclusively from the defendant, and in consideration thereof were each to receive twelve and one-lialf cents per barrel “yearly” during the term of the agreement, on condition that the sales were not loss than 30,000 barrels per annum. It was further provided that the agreement was made upon the express condition that the price paid by the customers of the other brewery during- the term of the agreement should net to the defendant the sum of fdur dollars and eighty cents per barrel, and if not netting that sum, the„sale should not come within the terms of the agreement. The latter provision was followed by the words “ monthly statements are to be made.”
    
      Held, that an action brought at a time when only 6,000 barrels had been sold was premature, as the sale of 30,000 barrels was a condition precedent to payment;
    That an action brought before the expiration of a year was premature, as under the contract nothing was due until the expiration of a year;
    That the provision that “ monthly statements " were to be made merely meant that the plaintiff was to furnish a monthly statement of the ‘barrels sold, not that he was entitled to monthly payments;
    That a complaint in such action was also defective in the absence of an allegation that the barrels sold netted the defendant four dollars and eighty cents each, that being a condition precedent to any obligation to pay.
    Ingraham and Laughlin, JJ., dissented, with memorandum.
    Appeal by the defendant, the Zeltner Brewing Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of March, 1908, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the amended complaint.
    
      Thaddeus D. Kenneson, for the appellant.
    
      Leonard Bronner [S. Marshall Kronheimer of counsel], for the respondent.
   McLaughlin, J.:

The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled and it appeals.

The complaint alleges, in substance, that on the 1st of Jnly, 1907, the plaintiff, one Georges and the defendant entered into a contract by the terms of which the plaintiff and Georges were, for a period of five years, to devote their entire time and energy towards having the customers of the Northside Brewing Company purchase their lager beer exclusively from defendant, in consideration of which it agreed to pay to each of them twelve and one-lialf cents upon each barrel of beer sold, provided that such sales should not be less than 30,000 barrels per annum, and that monthly settlements were to be made ; that between the 3d of July and the 3d of September, 1907, the plaintiff and Georges sold to the former customers of the Nortliside Brewing Company, on account of the defendant, 6,000 barrels, and that under the contract the plaintiff thereupon became entitled to twelve and one-half cents on each barrel, or $750, for which sum judgment is demanded.

The appellant contends that under the terms of the contract nothing could become due from the defendant to the plaintiff until the expiration of at least one year from the date of the contract and that the action having been commenced prior to that time is prematurely brought. It also contends that the complaint is defective in that it does not show that the beer sold netted the defendant four dollars and eighty cents per barrel, as provided in the contract. The contract was in writing, a copy of which is annexed to and made a part of the complaint, and so much of it as is material to a determination of the question presented reads as follows: “ The said Gminder & Georges hereby agree with the said Zeltner Brewing Company during the term of this contract to devote their time and energy to having the customers of the Northside Brewing Company purchase their lager beer exclusively from the Zeltner Brewing Company and said Zeltner Brewing Company, in consideration of the efforts of the said Gminder & Georges and on condition that the sales to the said former customers of the North-side Brewing Company shall be not less than 30,000 barrels per annum, hereby agree to pay to said Gminder & Georges each the sum of twelve and a half cents per barrel on each and every barrel of lager beer sold by the said Zeltner Brewing Company to the former customers of the Northside Brewing Company yearly during the term of this agreement.

“ The promise of the Zeltner Brewing Company to pay said sum of 25c. per barrel, as hereinbefore set forth, is made upon the further express condition that the price paid- by the customers of the Zeltner Brewing Company, during the term of this agreement, shall net the brewery the sum of $1.80, and if any beer is sold by said Zeltner Brewing Company to said customers at a price which does not net them this sum, such barrelage shall not be included within the purview or terms of this agreement. Monthly settlements are to be made.”

The allegations in the complaint as to the legal effect and construction of the contract (it having been made a part of the complaint) are not admitted by the demurrer. (Bogardus v. New York Life Ins. Co., 101 N. Y. 328; Bonnell v. Griswold, 68 id. 294; Greeff v. Equitable Life Assurance Society, 160 id. 19.) Its legal effect must, of course, be determined by construing it as an entire instrument, and when this is done, the solution of the question presented by the appeal is not difficult. The defendant agreed to pay the plaintiff twelve and one-half cents on each barrel, provided “that the sales to the said former customers of the Northside Brewing Company shall be not less than 30,000 barrels per annum.” According to the allegations of the complaint only 6,000 barrels have been sold. The plaizitiff, therefore, is not entitled at this time to receive anything, nor can he until the condition that at least 30,000 barrels shall be sold has been complied with.

The contract, as we have already seen, was entered into on July 1, 1907. The action was commenced some time prior to October 19, 1907. Nothing became due until the expiration of a year — certainly not until at least 30,000 barrels have been sold. The words “ monthly settlements are to be made ” do not, when the whole contract is considered, modify or qualify the provision of the contract to the effect that defendant’s promise to pay is conditioned upon the sale of not less than 30,000 barrels per annum, or that payments are to be made “ yearly.” All that these words mean is that at the end of each month defendant is to furnish to the plaintiff and Georges a statement of the number of barrels sold under the contract, including the price and what the sales netted it, and if there is then any difference between the parties, the same is to be adjusted. If, as contended by the respondent, the word “settlements ” means “ payments,” then there is no meaning to the provision in the contract that payment is “ on condition that the sales * * * shall be not less than 30,000 barrels per annum,” and that payments are to be made “ yearly.”

The complaint is also defective because there is no allegation in it to the effect that the 6,000 barrels sold were at a price which netted the defendant four dollars and eighty cents. From the provision of the contract quoted, it will be observed it is expressly provided that the agreement to pay twenty-five cents per barrel is upon condition that the price paid shall net the defendant that sum, and if any beer is sold at a price which does not net it this amount, then “such barrelage shall not be included within the purview or terms of this agreement.”

But it is suggested — not by counsel — that there are other allegations in the complaint to the effect that the defendant has interfered with the plaintiff in the performance of the contract, and that these allegations are sufficient to sustain the complaint. There are no facts stated "showing such interference, other than defendant’s failure to pay the twelve and one-half cents on the 6,000 barrels of beer sold, and when the whole complaint is read it is quite apparent that is the only ground upon which damages were sought to be recovered. In this connection it is to be noted that this is the only ground upon which a recovery is claimed in the brief presented by respondent’s counsel. ITe contends that the term “ monthly settlements” is equivalent to “ monthly payments,” and that the defendant was required to pay at the end of each month, provided the beer sold the month preceding was at the rate of 30,000 barrels per annum, and that these facts appearing upon the face of the complaint a cause of action is stated.

In my opinion the complaint does not state facts sufficient to constitute a cause of action, and for that reason the interlocutory judgment appealed from is reversed, with costs, and the demurrer sustained, with costs, with leave to the plaintiff to serve an amended complaint on payment of the costs in this court and in the court below..

Houghton and Scott, JJ., concurred; Ingraham and Laughlin, JJ., dissented.

Ingraham, J. (dissenting):

The complaint alleges facts which would justify a finding that there was a total breach of the contract by the defendant; that the plaintiff complied with the contract on his part and earned a certain sum of money under' it, and that by reason of the premises the plaintiff has been damaged to the amount of $750, payment of which was demanded and refused. I think this is sufficient on demurrer to sustain the complaint. It is quite possible that the plaintiff did not know that he was alleging a cause of action for a breach of contract, as the complaint contains many allegations which are quite immaterial upon that cause of action ; but when a cause of action is alleged I do not think that the court is justified in sustaining a demurrer to it because the plaintiff has sought to sustain it as alleging a cause of action that was not alleged.

I dissent, therefore, from the reversal of this judgment.

Laughlin, J., concurred. \

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.  