
    The Barber Asphalt Paving Co., Resp’t, v. James Brand and Matthew Taylor, Impleaded with The Mutual Vulcanite Co., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 2, 1889.)
    
    1. Contract—Pleading.
    The complaint set out a contract between the defendant Brand and one Barber, by which for value Brand covenanted “ not to sell asphalt to be used in the laying of sheet asphalt street pavements or in making asphalt blocks,” except to certain persons in certain cities for use in them ; that plaintiff is assignee of Barber’s rights; that the defendants have made transfers among each other, with accompanying agreements, for the purchase and use of asphalt, but without any provision that it should not be used for street pavement, and that the defendant, the Vulcanite Co., is using such material furnished by Brand for that purpose, in violation of the covenant; that Brand notified the Vulcanite Co. of his covenant with Barber, and that that company purchased subject thereto. On demurrer, Held, that the complaint stated a cause of action.
    2. Same—Parties.
    It appeared that in the contract with Brand, Barber referred to himself as “ representing the Trinidad Asphalt Pool,” but Barber signed the contract individually. Held, that there was no defect of parties ; that so far, at least, as defendants are concerned, the plaintiffs became fully vested by Barber’s assignment.
    Appeal by Brand and Taylor from an interlocutory judgment overruling their separate, demurrers to the complaint.
    
      Paul Fuller, for app’lt Brand; W. H. Shepard, for app’lt Taylor ; W. W. Niles, for resp’t.
   Barrett, J.

Brand’s demurrer is solely upon the ground that the complaint does not state facts sufficient to constitute a cause of action as against him. This complaint sets forth a contract between Brand and one Barber, whereby, for a good consideration, Brand covenanted “ not to sell asphalt to be used in the laying of sheet asphalt street pavements or in making asphalt blocks,” except to certain persons in Philadelphia, Baltimore, Washington and Brooklyn for use in their respective cities. All rights acquired under this contract were subsequently assigned to the plaintiff, who now charges a violation of his covenant by Brand acting in collusion with Taylor and the Vulcanite Company. Transfers from Brand to Taylor, and from Taylor to the Vulcanite Company, are set forth; and it is averred that such transfers, with accompanying agreements for the purchase and use of asphalt, were made without any condition or provision that such asphalt should not be used for street paving. It is further averred that, under these transfers and agreements, the Vulcanite Company has already purchased asphalt and used it in laying down sheet asphalt street pavements of substantially the same kind as those which the plaintiff is engaged in laying, and that Braijd has notified the plaintiff that he was about to furnish asphalt to the Vulcanite Company for such purposes. The main ground of the ■demurrer seems to be that Brand notified the Vulcanite Company of his covenant with Barber, and that that company purchased ' subject thereto.” I am unable to see what answer this is to the charge that Brand has violated his covenant and proposes to continue such violation. The statement in the complaint that the Vulcanite Company, “ bought subject ” to the contract between Brand and Barber, is simply the pleader’s conclusion as to the legal effect of the facts. Those facts are that the transfers and agreements under which the Vulcanite Company is proceeding contain no condition or provision corresponding to that embodied in the agreement between Brand and Barber.

The company, however, had notice of the condition contained in the latter agreement; and the effect of that notice in the pleader’s estimation is, that the company, notwithstanding the absence of a similar covenant or condition in its agreement, took subject to the original covenant. Brand, in effect, says to the company: “I am bound, but I will sell asphalt to you in violation of my agreement; asphalt which you are to use for the very purposes debarred to me; now if you are stopped from so using it, remember I showed you my covenant, and you must not have recourse to me.” To say that under such circumstances there is no cause of action against Brand amounts to the contention that a conspiracy to evade one’s bargain cannot be checked if the conspirators are perfectly frank with each other. There is not a word in the complaint indicating that either Brand’s or Taylor’s transfers or agreements contained any provision to the effect that they were subject to the original covenant with Barber. On the contrary, the plain effect and meaning of the statements made is that nothing of the kind was embodied in these instruments, that they were entirely without limitation, that their objects and purposes were to evade Brand’s covenant, a covenant which was well known to all parties, that such objects and purposes have been acted upon and partly effected through the instrumentality of the Vulcanite Company, a corporation organized by Brand and Taylor to effect their ends, and that it is proposed in defiance of the original covenant to proceed with the sale of asphalt, and to use that substance in the laying of pavements of substantially the same character as those laid by the plaintiffs.

Taylor’s demurrer raises other questions. It is claimed that there is a defect of parties because Barber, in the contract with Brand, refers to himself as “ representing The Trinidad Asphalt Pool. ” On this it is contended that the pool, or the persons who constitute it, should have been made parties. The answer is that the contract was Barber’s individually. He entered into it in his own name, and so signed it.

Having taken that position, it is immaterial who he represented. Having assigned all his right, title and interest in the contract to the plaintiff, that company, so far as these defendants are concerned, became fully vested.

But even if the pool were treated as the principal, it is fairly to be implied, from the language of the complaint, that the plaintiff, Barber himself, James Archibald and J. Joseph Albright constituted such pool. It follows, in view of the averment that Barber, Archibald and Albright subsequently assigned to the plaintiff all their right, title and interest in the contract, that the plaintiff is vested with the pool’s interest

The other points made by counsel for Taylor do not require extended consideration. However it may turn out upon the trial when all the facts are developed, it is quite clear that the complaint, standing alone, is not amenable to the criticism that the contract sought to be enforced is void, as tending to enhance the price of asphalt pavements or to create a monopoly. The complaint, on its face, is perfectly good under the cases of Diamond Match Co. v. Roeder, 106 N. Y., 484; 11 N. Y. State Rep., 47, and Leslie v. Lorillard, 110 N. Y., 533 ; 18 N. Y. State Rep., 520. Upon demurrer all the facts alleged, tending to show that the purpose of the contract was lawful, are admitted; and these facts fully support the complaint on this head. The case of Diamond Match Company v. Boeber is also an authority in support of the assignability of the contract, and the propriety of enforcing it in equity.

The interlocutory judgments should be affirmed, with costs against each of the parties demurring.

Van Brunt, P. J., and Daniels, J., concur.  