
    No. 407
    KUHN & CO. v. PICKANDS, MATHER & CO.
    U. S. District Court, N. D., Ohio E. D.
    No. 11317.
    March 1, 1923
    'his opinion has not been published except in Abstract.
    CONTRACTS — (1) Parties contracting in own name bound, although acting for undisclosed principal— (2) Agent has same rights of defense as principal would have — (3) Counterclaim must be based on contract sued on — (4) Hules for measuring damage — (5) Unnecessary matter in counterclaim not grounds for demurrer.
    Attorneys — Rufus M. Marriner and Geo. H. Eichellerger, for Kuhn & Co.! Horace Andrews and Geo. B. Young, for Pickands, Mather & Co.
   WESTENHAVER, D. J.:

Epitomized Opinion

On Demurrer

The action is for breach of a contract for the sale md delivery of coal and several questions of law are ■aised on plaintiff’s demurrer to defendant’s first lefense and counterclaim. Held by U. S. District lourt:

1. Parties who contract in their own name and m their own credit and responsibility, are bound per-lonally to perform all the terms of the contract, ¡ven though they may have been acting for a prin-ipal disclosed or undisclosed.

2. When the plaintiff in an action elects to stand m the personal obligations of the defendants and 0 sue them, the latter have the same rights of de-ense and counterclaim that a disclosed principal vould have if plaintiffs elected to sue him.

3. The breach set up in the counterclaim must be 1 the term and provisions of that contract and not f some other contract. An attempt to plead a trade ustom and breach of another contract makes the ounterclaim bad in law.

4. The measure of damages, nothing else appear-ng, would be the difference between the contract irice and the marked price of undelivered coal at the ime of the breach.

5. Although a counterclaim pleads certain rele-ant matter at unnecessary length, this is not a ;ood ground to sustain a demurrer.  