
    PAGE WOVEN WIRE FENCE CO. v. ALLEN.
    No. 1310.
    Opinion Filed January 9, 1912.
    (120 Pac. 638.)
    PLEADING — Judgment on the Pleadings. Where a defendant in a counterclaim bases his right to recover on a written contract for commissions for the sale of goods, -hut which contract on its face provides for a sale of goods outright to the defendant and no commissions are provided for therein, and no other defense is made to plaintiff’s hill of particulars, the overruling of a motion for judgment on the pleadings is error.
    (Syllabus by the Court.)
    
      Error from Caddo County Court; B. F. Holding, Judge.
    
    Action by the Page Woven Wire Fence Company against John Allen. Judgment for defendant, and plaintiff brings error.
    Reversed and remanded, with instructions.
    
      McKnight & Heskett, for plaintiff in error.
   DUNN, J.

This case presents error from the county court of Caddo county. The bill of particulars was originally filed in a justice of the peace court wherein judgment was rendered for plaintiff, which is plaintiff in error here. An appeal was duly taken therefrom to the county court, where, on a trial, judgment was rendered in favor of defendant, from which, after motion for new trial was duly filed and denied, the case has been filed in this court for review.

Plaintiff's bill of particulars is predicated upon an account duly itemized and verified as required by law. The answer filed by the defendant was unverified, and the allegations of the bill of particulars as to the correctness of the account was therefore taken and considered as true by the tidal court. On demand the defendant filed his answer in which he pleaded a written contract, and on it based a claim for commissions for the sale of plaintiff’s goods. The commissions sued for were in excess of plaintiff’s claim, and judgment was rendered therefor. No defense was offered to the account of plaintiff. The answer of the defendant based his right of recovery upon the terms of the written contract which .he pleaded. On filing the same, counsel for plaintiff filed a motion for judgment on the pleadings on the ■ground that no defense was offered to plaintiff’s account, and the written contract relied upon by the defendant showed upon its face that defendant was not constituted a sales agent for the goods of plaintiff. The court denied the motion, to which exception was saved, and this is the principal error relied upon in this court. Under the terms of the written contract, the plaintiff agreed to sell goods to the defendant at a certain list price and allowed certain discounts on the payment therefor. It was also agreed that the indebtedness of the defendant should not, without the consent of the plaintiff, exceed the sum of $100. Defendant, it appears, took certain orders for goods in excess of $300 which plaintiff declined to ship, and upon which defendant claimed a commission in the sum of $102.80, which is the amount for which he asked judgment in his counterclaim. The construction of the contract was a question of law for the court, and, as it shows on its face that it is not one of agency and contains no terms under which the defendant would be entitled to claim commissions, the motion for judgment on the pleadings should in our judgment have been sustained. The terms of the written contract into which the parties entered fixed plaintiff’s liability to the defendant, and, as there was no contract or agreement for commissions on sales made, none could be recovered.

Counsel for defendant has not favored us with a brief, and we are not able to discern upon what theory the court sustained his counterclaim. ■

The judgment of the trial court is accordingly reversed, and the case remanded, with instructions to set aside the judgment rendered, and enter one in accordance herewith.

All the Justices concur.  