Opinion
January 8, 1906.
O.U. Kellogg, for the appellant.
James F. Dougherty, for the respondents.
It seems that some time prior to February, 1903, there was a firm consisting of this plaintiff, W.H. Piper, and one Lewars, doing business under the firm name of W.H. Piper Co., which for many years had been miners and sellers of soft coal in the State of Pennsylvania, and that in such month of February they entered into a contract by written correspondence with this defendant, by which they agreed to ship to Wickwire Brothers, at Cortland, in the State of New York, 20,000 tons of their coal between April 1, 1902, and April 1, 1903, in equal monthly shipments, at the rate of one dollar and thirty cents a ton on board the cars at their mines, and this defendant agreed to pay therefor.
On January 1, 1903, and while this contract was outstanding, such firm was dissolved, Lewars withdrew therefrom, and the plaintiff W.D. Piper, who was the son of the other member, W.H. Piper, then joined with him in the continuance of such business, and continued to carry it on under the same name and style that the prior firm had always used, viz., W.H. Piper Co., and they claim that at that time they sent out a printed notice of such dissolution to all the customers of the old firm, including this defendant. The mines and the assets of the old firm seem to have been taken by this new firm, and the general business of mining and selling coal seems to have been continued without interruption by such new firm. At the time of the creation of such new firm there had been delivered to Wickwire Brothers on such contract by the old firm some 5,000 or 6,000 tons. The new firm continued to deliver thereon during January and February some 700-odd tons, which were paid for by the defendant. In March the plaintiffs delivered the number of tons set forth, and which is claimed for in this complaint, and then notified the defendant by letter, dated April 1, 1903, that they would deliver no more upon such contract, but considered it completed so far as they were concerned. At this time there were some 12,000 tons back and undelivered upon such Wickwire contract. It is to be noticed that there is no evidence in the case that the defendant ever made any contract whatever with the new firm for the purchase from it of any coal whatever, and the only request by the defendant that it deliver any coal that appears from this record is that contained in the letter of January 19, 1903, and from which it is evident that he considered the "W.H. Piper Co.," to whom he was writing, as the old firm, and the defendant distinctly testified that he never received the notice of dissolution, and that at that time he did not know of the existence of the new firm. And it is to be further noticed that in no letter written by the new firm is there any claim that it was not liable to perform the Wickwire contract, so called, save for the reason that, owing to strikes and causes beyond their control, for which provision was made in the contract, it could not perform the same.
It is apparent, therefore, that the coal for which the plaintiffs seek to recover was never purchased from them by this defendant; no contract concerning it was ever made between the plaintiffs and this defendant, and, therefore, they have been allowed to recover upon a cause of action which was not stated in their complaint.
Moreover, it is also apparent that the contract under which this coal was delivered to the defendant in the month of March and paid for by him in the months of January and February, was purchased from the old firm, and the old firm is still in default in the performance of that contract on its part, something over 12,000 tons being yet due defendant thereon, and if the plaintiffs are to be allowed to recover in this action for coal purchased upon that contract, it would seem very clear that the defendant should have been allowed to plead as a defense to that action the breach of the contract under which such coal was purchased, and yet the trial judge refused to let the defendant amend his answer in any particular. Not only have the plaintiffs been allowed to recover upon a contract that they did not set forth in their complaint, but also upon a contract that was never made with them but with an entirely different party, and the judgment that is rendered in favor of these plaintiffs would not bar an action if brought by the old firm for the same coal. This seems to be clear error for which this judgment should be reversed and a new trial granted.
All concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.