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CARL GUTMANN & CO. v. ROHRER KNITTING MILLS

September 29, 1949

CARL GUTMANN & CO., Inc.
v.
ROHRER KNITTING MILLS, Inc., et al.



The opinion of the court was delivered by: FOLLMER

Plaintiff has filed its amended complaint consisting of four causes of action for breach of contract with copy of a written agreement attached thereto as an exhibit. Defendants have filed their motion to dismiss the first, second and third causes of action because the amended complaint fails to state any claims against defendant Rohrer Knitting Mills, Inc., upon which relief can be granted substantially for the following reasons:

1. Agreement lacks consideration.

 2. Agreement lacks mutuality of obligation.

 3. Under the Parol Evidence Rule of Pennsylvania, plaintiff is barred from showing, by parol, consideration allegedly moving from plaintiff to defendant prior to the execution of the agreement which is silent on the subject of said consideration.

 4. Plaintiff is suing as an assignee of the agreement. No written consent to the assignment is alleged although the agreement expressly provides that it is unassignable without the written consent of the defendant.

 5. Agreement was one of agency and, as appears from the amended complaint, was terminated by the defendant.

 6. Although the amended complaint alleges damages for defendant's failure to sell goods to plaintiff, there is no allegation that plaintiff offered to purchase said goods.

 1. The Court lacks jurisdiction because no diversity exists between plaintiff and one of the essential parties, namely, Warr-Ell Mills, Inc.

 2. Plaintiff cannot maintain an action against defendant Rohrer Knitting Mills, Inc., for breach of contract and in the same proceeding maintain an action against defendant Rohrer Knitting Mills, Inc., and its four officers for conspiring to induce said breach.

 The original complaint in this action, consisting of one hundred fourteen paragraphs covering forty legal size typewritten pages, was dismissed because of its prolixity and its involved and repetitious verbiage and the plaintiff granted leave to serve an amended complaint within twenty days thereafter. The amended complaint, in my judgment, like its predecessor constitutes a gross violation of Rule 8 of the Federal Rules of Civil Procedure, 28 U.S.C.A.; it also is prolix and replete with vague, immaterial and evidential allegations; it required thirty-nine paragraphs covering sixteen legal size typewritten pages to state what now appears to be a comparatively simple cause of action for an alleged breach of an agency agreement.

 According to the amended complaint, the basis of this suit is the alleged breach of a written agreement dated October 18, 1945, between Rohrer Knitting Mills, Inc. (to be incorporated) of Orwigsburg, Schuylkill County, Pennsylvania, party of the first part, and Carl Gutmann & Company, of New York City, New York, party of the second part. Copy of said agreement is attached to the amended complaint as 'Exhibit A.' *fn1" The agreement was unsealed.

 At the time of the execution of the agreement the plaintiff was a partnership and the defendant was an association in the course of incorporation. No consideration is mentioned in the agreement, which provides, inter alia, as follows:

 1. Defendant appoints plaintiff its exclusive agent to handle and sell the entire output of goods manufactured by defendant at its ...


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