
    W. H. Piper and W. D. Piper, Respondents, v. John C. Seager, Appellant.
    Third Department,
    January 8, 1906.
    Partnership — when new partnership, cannot recover on unperformed. . contract of sale made by former partnership —amendment of pleading —when error to refuse to allow vendee to amend answer to allege breach of contract.
    When a partnership has contracted to sell and deliver a certain quantity of coal at a stated price, and when at a time when said contract is partly performed the partnership is dissolved by the retirement of one partner and a new partnership is formed, which new partnership, after a few deliveries, refused to complete said deliveries as agreed in the original contract, there can be no 1 recovery from the vendee by the new. partnership on the original unperformed. contract of the old firm.. . -
    In such action it is error to refuse to allow the vendee to amend his answer so as' to set up the breach of said contract.
    Appeal .by the defendant, John G. Seager,.from a judgment of the Supreme Court in favor of the plaintiffs/entered in the office of the clerk of the county of Cortland on the éth day of May, 1905, upon the verdict of a jury rendered by direction of the court after - a trial at the Cortland Trial Term, and-also from an order entered in said clerk’s office on the 18th -day of April,. 1905, denying the - defendant’s motion for a new trial made, upon the minutes.
    This action is brought by the plaintiffs, W. H. Piper and W. D. . Piper, doing business under the style and name of -W. H. Piper & Co., .to recover for a quantity of coal alleged to- have been sold by . the plaintiffs and delivered to -defendant in the month of March,.. 1903, at the agreed price of $1.30 per ton F. Q. B. at their mines in Pennsylvania, -the whole number of tons so delivered being l,576T8r^ and the price thereof so sought to be recovered being $2,019.76.
    The defendant, . for-' an answer thereto,, first, denied all the . averments of such complaint; secondj set, forth ■ a counterclaim thereto. ' ■
    # To such counterclaim a reply was served, but which in no manner explained or enlarged the said claim of the plaintiffs as set forth in. their complaint.. . .
    Upon these pleadings, the casé came on for trial, and the court, ' after hearing the evidence, directed'a verdict for the plaintiffs for the amount claimed in- She complaint, and "from the judgment thereon entered, apd from the order denying a new trial upon the ' , minutes/tlie defendant-takés this appeal. Further facts appear in the opinion.
    
      O. U. Kellogg, for the appellant:
    
      James F. Dougherty,; for the respondents.
   Parker, P. J.:

It seems that some time prior to February, 1903, there was a film consisting of this plaintiff, W. II. 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. II. 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., Ws 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 hew 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 YYiekwire 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; nó 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 óf 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 liis answer in any particular. Mot 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.  