Piest v. Tide Water Oil Co.

COXE, District Judge. The complaint in this action alleges an agreement under which the plaintiff was to receive commissions on renewal sales. I think this is sufficient against a motion to dismiss. Whether the Statute of Frauds has any application is at least doubtful, see Warren Chemical & Mfg. Co. v. Holbrook, 118 N.Y. 586, 23 N.E. 908, 16 Am-St.Rep. 788; but in any event the question should be presented by affirmative defense under Rule 8 (c), 28 U. S.C.A. following section 723c. The motion of the defendants to dismiss the complaint is denied.