Blue Star Navigation Co. v. Emmons Coal Mining Corp.

• Decision Date: 12 February 1923
• Docket Number: 82
• Citation: 120 A. 459,276 Pa. 352
• Parties: Blue Star Navigation Co. to use, Appellant, v. Emmons Coal Mining Corporation
• Court: Pennsylvania Supreme Court

120 A. 459

276 Pa. 352

Blue Star Navigation Co. to use, Appellant, v. Emmons Coal Mining Corporation

No. 82

Supreme Court of Pennsylvania

February 12, 1923

Argued January 11, 1923

Appeal, No. 82, Jan. T., 1923, by plaintiff, from judgment of C.P. No. 1, Phila. Co., Sept. T., 1920, No. 633, on verdict for defendant, in case of Blue Star Navigation Co. to use of Ainesworth Coal & Iron Co. v. Emmons Coal Mining Corporation. Affirmed.

Assumpsit for breach of contract. Before BARTLETT, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for defendant for $5,199.06 on counterclaim. The use-plaintiff appealed.

Errors assigned were various rulings on evidence, quoting the bills of exceptions, and refusal to enter judgment for plaintiff n.o.v., quoting record.

The judgment of the court below is affirmed.

C. W Van Artsdalen, for appellant. -- No recovery could be had against either the Blue Star Navigation Company or appellant for the reason that there is no "note or memorandum in writing . . . signed by the party to be charged or his agent in that behalf" nor was any part of the goods contracted to be sold accepted or received nor was there anything given in earnest to bind the contract as required by section 4 of the Sales Act of 1915, P.L. 543: Gano, Moore & Co. v Coal Co., 28 Pa. Dist. R. 825; Mason-Heflin Coal Co. v. Currie, 270 Pa. 221.

No recovery can be had against appellant for the reason that if there had been a valid contract on which a recovery against the Blue Star Navigation Company could have been had, appellant is merely an assignee of the rights of the Blue Star Navigation Company and did not assume any liabilities which the Blue Star Navigation Company might have had under said contract: Mintz v. Gas Co., 259 Pa. 477; Backer v. Remov, 69 Pa.Super. 139; Hunter v. Henning, 259 Pa. 347; Beach v. Morris, 12 S. & R. 16.

When the buyer sues for nonperformance by the seller on a contract of sale he must set forth and prove his own performance has been the law not only since the Sales Act but long prior thereto: Phillips v. Car Co., 82 Pa. 368; Weaver v. Box Board & Paper Co., 246 Pa. 438.

J. T. Manning, Jr., of Conlen, Acker, Manning & Brown, for appellee. -- Appellant's objection that there was no memorandum in writing as required by section 4 of the Sales Act is not available to it in this case and cannot be supported on the evidence.

The judgment in this case properly stands against appellant: Lierz v. Morris, 19 Pa.Super. 73; Hibert v. Lang, 165 Pa. 439; Miller v. Kreiter, 76 Pa. 78; Northampton Bank v. Balliet, 8 W. & S. 311.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON and SCHAFFER, JJ.

OPINION

MR. JUSTICE SIMPSON:

The Blue Star Navigation Company, to the use of the Ainesworth Coal & Iron Company, brought suit against the Emmons Coal Mining Corporation to recover damages for failure to accept a cargo of coal which had been sold by the legal plaintiff to defendant, the contract for it being forthwith assigned by the former to the use-plaintiff, which undertook its performance. Defendant denied the breach of contract, and made a counterclaim, because of use-plaintiff's refusal to deliver the coal. The pleadings admitted the contract, which required certain documents to be produced by plaintiff prior to payment by defendant; that it was confirmed by a note or memorandum in writing; that defendant refused to pay, because all the documents were not produced; and that plaintiff immediately thereafter sold the cargo to a third party. The only issues, therefore, were, (1) Did plaintiff produce all the documents required? (2) What were the damages, if any, sustained by the party injured? At the trial plaintiff suffered a nonsuit, a general verdict was rendered for defendant, with a certificate in its favor, judgment was entered thereon, and plaintiff appeals.

The jury having found that plaintiff did not produce the documents required by the contract, and that defendant was justified in refusing payment because of this, the only arguable question, raised on the appeal, is whether or not defendant could recover a verdict against use-plaintiff, in view of the fact that there was no contractual relation between them; and the record is not in shape to have even this decided. As already stated, the verdict and judgment were general, and an execution could, therefore, have been properly issued against the assets of whichever of the plaintiffs was legally responsible; and, of course, not against those of the other. No assignment of error complains of any execution issued against either plaintiff, or of any refusal to limit the right thereto against the property of either; all of them relate only to the occurrences at the trial, and to the refusal to enter judgment for plaintiff non obstante veredicto, so far as relates to the counterclaim.

Moreover appellant has confused the different character of cases in which a use-plaintiff appears, and the varying liabilities growing out of them. There are three different kinds of such actions. (1) Where a contract is made between the legal plaintiff and defendant, largely for the benefit of other parties who may or may not be known at the time it is made, the legal plaintiff being interested only because it will aid in securing a proper performance. In this class, -- of which Philadelphia v. Stewart, 195 Pa. 309; Philadelphia to use v. McLinden, 205 Pa. 172, and Philadelphia v. Neill, 211 Pa. 353, are representatives, -- if there is a breach injuring the third party, suit must be brought in the name of the legal plaintiff to the use of such third party; the litigation is really between the use-p...