
    HOBART v UNITED COAL & COKE CO
    Ohio Appeals, 2nd Disfc, Franklin Co
    No 2079.
    Decided Feb 16, 1932
    Chalmers M. Parker, Columbus, for plaintiff in error.
    Joseph McGhee, Columbus, for defendant in error.
   ALLREAD, J.

We have carefully read and examined the record. The claim of the defendant is that the suit should have been brought by the Sedalia Coal Company against the defendant, instead of by M. C. Hobart. We are of opinion that this' claim is not made out by the petition. True, the coal was purchased of The Sedalia Coal Company, but the latter company being indebted to Hobart in a much larger sum, it was agreed among all the parties that the Sedalia Coal Company would ship the coal to the United Coal & Coke Company, and that the latter company would pay the amount due to Hobart. This was in substance the contract. We can see no objection to the contract as made, or to the action being brought thereon by Hobart. The question remains as to the sufficiency of the pleadings. The petition filed in the Court of Common Pleas is silent as to the quality of the coal. The answer thereto alleges that the coal agreed to be shipped was merchantable coal, and that the coal actually shipped did not answer that description, and that the coal was rejected for that reason. We think-that the law is that the petition and the answer make up the issue as to the nature of the contract. Summers v Green, 35 Oh St, 104; List & Son Co. v Chase, 80 Oh St, 42; Dykeman v Johnson, 83 Oh St, 126; Isaac Leisey & Co. v Jacob Zuellig, 7 C.C., 423; Bates Pl. & Pr., 1325; and 9 O. Jur., 631.

It is therefore clear that under the pleadings as presented there was an issue as to the quality of the coal purchased and that such issue should have been heard and decided by the Court of Common Pleas.

The Court of Common Pleas was in error in holding that there was no issue to be submitted and for such error the judgment of the Court of Common Pleas should be reversed.

Judgment reversed.

HORNBECK and KUNKLE, JJ, concur.  