Jacob Fallo, Inc. v. Durr , 5 Pelt. 258 ( 1922 )

Dinkelspisl; J.

Plaintiff suss for s commission ae re-: 1 cst-.-ss agenta ^xl1 amongst other allegations, allege th-.t on or about June 15zh, 1330, defendant granted » written ¿uthcrizetion in f^-vor of Fallo & Short, ths latter transferring all right in said contract to plaintiff end that plaintiff had the sole right to sell defendant's property at 1543 Exposition 2oulev..rd, in the City of ITew Orleans, for ths prioe and sur.1 of Seventeen Thousand Dollar.^tjid going on to allege further that the authority so to sell was in full force and effect for a period of twenty days from June lSth^ and thereafter unless ssid agreement is revoked by thirty days written notice giving an exclusive right to 3ell the property in question,or if said property is sold by anyone else, nevertheless they would receive their commission of fare's per cent and further alleging Shit ixxxx their predecessors Fallo & Short advertised s..id property, interest sever...! parties, emongst them being a hrs. Elizabeth 0. Pegand, who finally purchased the property;further that their authorization was in full force and effect but thxtxx that defendant in violation of said agreement and knowing full well th-.t the purchaser secured by him was the s<use whom plaintiff had seoured, sold ths property to the lady, lira. Pegr.nd within the time of the contract end therefore plaintiff was en-tltltsd to their comission in the sum of Four Hundred Fifty Dollars, with interest and costs^ end prayed for general relief.

To this petitioner there wes filed ths exception, fir3t that the petition is too vague, general and indefinite to permit respondent to safely answer thereto^ e,nd second, exceptor further pleads the exception of no right of action^and of no cause of aofion.

On the trial of this oase, the exception of no cause of action wa3 maintained and from this judgment there is this appeal. The questions presented are neither new nor novel; the x^atition oon’;5ini3 sufficient allegations, if true, and for the purposes of e■ suit they are taken for true, to entitle plaintiff to he hecrd on th = merits of rhie o-se and we do no 5 think that this oo.se should go off on E.n exception. It nay he possible that on the tri:l of this cess, plaintiff will not be able to substantiate fp.ots alleged, but to hold that on an exception sane should bs thrown out of Court without further trial or hearing, we are satisfied ie not ptr.rissE.ble.

In a esse recently deoiled by this Court, the very statements end allegations in the petition, on similar exception, was Jeci led sxaxaiy' adversely to the defendant and it was there heldl

"An exception of no o:.U3S of action 3hculd never be sustained unless it be cert-in tint the plaintiff can recover nothing on his claim; if che ol. i.a be only doubtful the exception should be overruled and the c:..3e heard on the merits."

Jacobs Candy Co. vs. Dennis Sheen Transfer Co. No. 8150, Court of Appeal.

And there cited, 9th Orleans Aopeals; 119 Lc-. 106; 133 La.. 831.

"An exception of no oause of action should not bs sustained when a judgment of some kind, however small oould bs legally rendered on the allegations supported by evidence."

Davis vs. Arkansas Southern R. R. Co., 117 La. 320.

For the reasons assigned it is ordered, adjudged end decreed that the judgment appealed from be reversed and the exception of no cause of action overruled and the ca.se remanded for trial on the merits, according to law; defendant to pay the oost of this appeal and the other costs to awe.it final judgment.

Judgment reversed and oase remanded.