Candee & Smith v. Fordham Stone Renovating Co.

Laughlin, J.: The action is brought on an agreement in writing alleged and. purporting to have been made between the parties on the 16th day of May, 1900, to recover the sum of $472.35, a balance of the purchase price of lime, cement, sand and other material alleged to have been sold and delivered by plaintiff to one Brisack between the 1st day .of July, 1903, and the 6th day of January, 1904, in reliance upon and in consideration of the promise of defendant, contained in said agreement of May 16,1900, to pay therefor. Plaintiff is a domestic corporation. It was incorporated on the 4th day of August, 1900. Prior to its incorporation there was a copartnership by the same name engaged in the same line of business. There is an intimation in the evidence that the corporation succeeded to the business of the copartnership; but this was neither alleged nor proved. The agreement upon which the liability of defendant is predicated was made [16] not with the plaintiff nor in its behalf but with the copartnership months before plaintiff came into existence. The defendant denied that .it made the agreement with the plaintiff. The theory on which plaintiff evidently relies for a reversal of the judgment is that it adopted the contract made by the copartnership and that the parties have dealt with each other on the assumption that both plaintiff and defendant were bound thereby. The difficulty with that claim is that it was not an issue tendered by the complaint which was neither amended nor was leave to amend in this regard requested. Upon the trial plaintiff asked leave to amend .by alleging that it sold the property to the defendant and delivered it to Brisack. The trial court properly declined to grant the amendment on the ground that it would change the cause of action. The defendant also set up as a separate defense that prior to the commencement of the action it paid and satisfied the claim sued upon by delivering to plaintiff the negotiable promissory note of a third party which was accepted and retained by plaintiff in full settlement of the alleged indebtedness upon which the action is founded. Upon the trial the defendant showed by the testimony of the collector of the plaintiff that he received from the president and manager of the defendant prior to the commencement of the action the personal promissory note of said president and manager, for the balance of the account sued upon, payable to the order of plaintiff in settlement of the account. This evidence was uncontroverted and it constituted a complete defense. We are of opinion that the judgment dismissing the complaint was properly granted both upon the theory that plaintiff failed to establish the cause of-action alleged and also upon the ground that the indebtedness, if any, was paid and satisfied by the delivery and acceptance of the individual note of the president and manager of the defendant in settlement thereof. It follows that the judgment should be affirmed, with costs. McLaughlin, J., concurred; Houghton and Scott, JJ., dissented.