
    No. 757
    CLEMMER-JOHNSON CO. v. MOSS IRON WORKS CO.
    No. 19944.
    Supreme Court
    On motion to certify.
    Dock. June 30, 1926;
    4 Abs. 475.
    297. CONTRACTS — Where all writing and contracts for the furnishing of material are between the vendor and contractor, in an action on account may the contractor defend on the ground that its principal was liable because the vendor knew that said material was to be used in the construction of a building for the principal?
    Attorneys — May & May, and Whittemore & Motz, for Clemmer-Johnson Co.; Cummins, Brouse, Englebeck & McDonald for Iron Works Co.; all of Akron.
   This action was brought originally in the Summit Common Pleas by The J. E. Moss Iron Works Company against The Clemmer-Jobnson Company on account for balance due it for merchandise furnished.

It appears that the Botzum Theatres Company without notice to the plaintiff was made a party defendant and thereupon filed an answer and cross petition. The material was furnished to the Clemmer-Johnson Company and the Iron Works Company contends that the Clemmer’-Johnson Company was liable for the material.

The judgment of the Common Pleas in directing a verdict in favor of the Iron Works Company was affirmed by the Court of Appeals on the ground that no evidence was offered to support any dealings between the Iron Works Co. and the Theatres Co. and that the written evidence disclosed all contracts to be between Clemmer-Johnson Co. and the Iron Works Co.

The Clemmer-Johnson Company in the Supreme Court contends that the Theatres Company is liable under the account on the theory that the Iron Works Company knew for what purpose and to whom the material was furnished.  