Smith v. Kirkpatrick

111 N.E.2d 209 (1953)

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Nature of the Case

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Facts

P sued D seeking recovery of money due under a contract of employment. P that he had a contract with D to solicit export accounts and that P's remuneration was to be 50% of the income derived from business procured by P. P solicited accounts from which an income of $26,000 was or would be derived, and D failed to compensate P as agreed. D denied the agreement and plead the Statute of Frauds as a defense. The complaint was dismissed. P then asked for leave to amend to sue for the value of his services. P sought recovery in 'quantum meruit.' P also alleged an oral agreement of joint venture and sought an accounting. On a bench trial, the court dismissed the complaint for lack of proof and the Statute of Frauds. P commenced a second action to recover the reasonable value of the services rendered. D moved under rule 107 to dismiss the complaint on the ground of res judicata and, in the alternative, moved under rule 103 to strike irrelevant, unnecessary and prejudicial matter from the complaint. Upon appeal from the denial of that motion by Special Term, the Appellate Division reversed and dismissed the complaint. P appealed.