Simmons v. Peavy-Welsh Lumber Co. ( 1940 )

HUTCHESON, Circuit Judge

(dissenting).

I cannot agree with the majority that the District Judge had a right in ruling on the motion to dismiss, to decide this case on his ideas of the effect of the written exhibits. The amended pleading filed under the new rules, plainly and definitely alleged that defendant agreed to pay petitioner 3% commission if petitioner furnished it a prospect with whom the defendant made a deal under terms and conditions satisfactory to the parties and that this employment was both verbal and in writing. The pleading plainly and unequivocally alleges: an oral contract consisting of conferences, conversations and agreements, the substance of which were that if petitioner would furnish the prospect and defendant would complete the negotiations resulting in a sale, compensation would be due; and that petitioner furnished the prospect and the sale was made.

In addition the majority opinion wholly overlooks plaintiff’s suit on a quantum meruit which charges that the defendant availed itself of petitioner’s services and thereby sold part of the property and that the value of petitioner’s services was the amount sued for.

On such allegations it is plain that a recovery may be had if the proof supports them. McDonald v. Cabiness, 100 Tex. 615, 102 S.W. 721; Doonan v. Ives, 73 Ga. 295; Gresham v. Connally, 114 Ga. 906, 41 S.E. 42; Ware v. Reese, 59 Ga. 588; Hill v. Balkcom, 79 Ga. 444, 5 S.E. 200; Beck v. Thompson & Taylor Spice Co., 108 Ga. 242, 33 S.E. 894. The new rules are designed to secure precision and dispatch. They are not designed, they may not be used, to permit a trial court on a motion to dismiss, to decide the case on its merits and thus to deprive a litigant of his right to prove the facts on which he relies. The majority opinion naively speaks of this novel procedure as “the direct way in which the district court went to the heart of this case.” The difficulty of this direct method employed by the District Judge and approved by the majority, is that it undertook to decide the case entirely on the written exhibits and thereby deprived plaintiff of the right to prove the oral contract he had specifically alleged. If plaintiff could prove the oral contract, he could recover on it, and if he could not, but could prove the facts he alleged in the second count, he could recover on a quantum meruit. It is quite plain then, that in disposing of the case as on the merits without giving plaintiff an opportunity by proof to put the merits before the court, the judgment, both procedurally and as matter of substance, was wrong.

I respectfully dissent from its affirmance.