Crowley v. Modern Faucet Manufacturing Co.

TRAYNOR, J.

On August 3, 1951, plaintiff brought an action seeking damages for breach of an oral contract. He alleged in his third amended complaint “That on or about the 17th day of October 1950 the plaintiff and defendants entered into an oral agreement” whereby he was given the exclusive right to buy from defendants certain patented shower heads. He also alleged that “a written memorandum of said agreement, signed by the defendants, is set forth in a letter dated October 17, 1950, a copy of which is attached hereto as Exhibit ‘A’ and made a part hereof as though set forth herein in full.” A demurrer to this complaint on the grounds that the written memorandum did not meet the requirements of the Statute of Frauds (Civ. Code, § 1624; Code Civ. Proe., § 1973) was sustained without leave to amend pursuant to a stipulation that “if the demurrer be sustained, that it be sustained without leave to amend.” Judgment was entered that plaintiff take nothing in the action and that defendant recover its costs. Plaintiff’s appeal from the judgment was dismissed.

On November 12, 1953, plaintiff brought the present action seeking an injunction, an accounting, and damages. The complaint alleges that “On or about October 17, 1950, at Los Angeles County California, plaintiffs and defendants made and entered into an exclusive sales agreement, and on said date defendants made, signed and delivered to plaintiffs their written memorandum of said agreement, wherein and whereby defendants agreed that they will sell exclusively to plaintiffs, and plaintiffs agreed that they will purchase exclusively from defendants. ...” Defendants filed a motion to dismiss, and the record in the first action offered in support of the motion was received in evidence. The motion to dismiss was granted on the grounds that the alleged agreement is

[323]

identical with that alleged in the first action, that the prior judgment is res judicata, and that the action is sham and frivolous. A judgment of dismissal followed, from which plaintiff appeals.

The applicable rules are set forth in

Keidatz

v.

Albany,

39 Cal.2d 826, 828 [249 P.2d 264] : (1) A judgment entered after a general demurrer has been sustained “is a judgment on the merits to the extent that it adjudicates that the facts alleged do not constitute a cause of action, and will accordingly, be a bar to a subsequent action alleging the same facts. ”