In the Points and Authorities filed by counsel for plaintiff under date of July 21, 1943, it is stated: 'The amendment now proposed is not at all necessary but is offered for the same reason as above stated, as a matter of meeting all objections, however frivolous they may be.' Plaintiff's counsel further states in the same Points and Authorities, 'the claim as probated is strictly accurate and correct. We have at no time departed from this position, but we repeat we have, out of an abundance of caution, acted as any lawyer would do, undertaking to meet objections by amendment regardless of their merit or frivolity.'
In view of the above, the motion of plaintiff for leave to file a second amended complaint should be denied, for he himself says it is unnecessary. Also, plaintiff's motion to amend and file exhibits is denied.
With respect to defendant's motion for Summary Judgment, it is felt that this should be granted for the following reasons.
Plaintiff's complaint fails to state a cause of action. He bases his complaint on two counts; first, the oral contract and, second, quantum meruit.
As far as the first count is concerned, plaintiff himself breached the contract of employment by accepting the payments of $ 2000 and $ 1200 when he had agreed to work without compensation during the lifetime of these two ladies.
As to the second count, plaintiff and his wife executed a perfectly valid and binding release in consideration of the payment of $ 1200.
In seeking cancellation of the release, plaintiff pleads gross inadequacy of consideration and fraud. Presumably his allegation of fraud is based on his statement that at the time he executed this release he was in financial straits and that this was known to Miss Frear. Rule 9(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., provide that averments of fraud shall be stated with particularity as to the circumstances surrounding the charge of fraud. This plaintiff has failed to do. On the contrary, plaintiff is a member of the Bar of this Court and Miss Frear was an elderly lady. If any disparity existed between the parties to this agreement, it was in favor of plaintiff. He was familiar with the size of the estate of both Mrs. Parks and Miss Frear, having filed the inventory in the Estate of Mrs. Parks and having accompanied Miss Frear to her safe deposit box on many occasions when coupons were clipped from her securities.
The following succinct statement is found in 4 Ruling Case Law 500-1-3:
'Courts of equity as well as courts of law must act on the ground that every person, who is not under some legal disability, may dispose of his property in such manner and on such terms as he see fit; and whether his bargains are discreet or not, profitable or unprofitable, are considerations, not for courts of justice, but for the party himself. * * * Should courts undertake, because of improvidence, to set aside contracts which are lawful, they would invade personal rights and disturb and destroy the safety of business transactions. When parties have made lawful contracts in language leaving no doubt as to the intention, there is no ground for any interference by the Courts, but the contract must be enforced as written.'
Surely it cannot be said that plaintiff was under any legal disability, and just as surely there can be no doubt as to the intention of the parties as set forth in the release dated June 18, 1940. Although the release constitutes an affirmative defense that is pleaded in the complaint, it may be successfully attacked by motion to dismiss under Rule 12(b)(6). See discussion by Professor Claude H. Brown, 3 F.R.D.,page 148. A fortiori, the defendant is entitled to the granting of his motion for summary judgment.
Counsel for defendant will submit appropriate order.
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