Western Straw Products Co. v. Lake Erie Engineering Works

Headnote

Western Straw Products Co. v. Lake Erie Engineering Works, 172 ,.App. Div. 934, affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 19, 1916, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The complaint alleged that defendant contracted with plaintiff and one Kneeland to construct and furnish and .deliver for and to plaintiff, the owner, certain parts of a straw board machine for which plaintiff agreed to pay; that plaintiff fully performed said contract on its part; that after defendant had but partially performed, but had received payment

from plaintiff for full performance, it wrongfully refused to further perform said contract to plaintiff’s damage; that at the time of such refusal plaintiff, in addition to being a party to said contract, was also the agent and the assignee of Kneeland, the third party; that after so refusing, defendant, having possession of the unfinished machine, refused to surrender such possession to plaintiff who was entitled thereto, to plaintiff’s damage. The answer sets forth specific and general denials and admissions, and sets up as a defense that plaintiff did not stand in such privity to the contract as to permit recovery in its own right, and further that breaches by Kneeland defeated plaintiff’s right to recover either in its own right or as Kneeland’s agent and assignee.