Porter v. Union Blue Stone Co. — 31 N.Y. St. Rep. 71

Majority

p. 71

Wellington Porter, App’lt, v. The Union Blue Stone Company et al., Resp’ts.^[1]

(Court of Appeals,

Filed May 9, 1890.)

Headnote

Parties—Contract.

An agreement was entered into between the Union Blue Stone Company and plaintiff, together with other parties, whereby the company agreed to take all the blue stone they might produce so far as there was a market for it. Held, that the company was the only proper party defendant in an action by one of the producers for the violation of the agreement, in not taking the proportion agreed upon from him, and for overpaying such other parties, and that it was improper to join the other producers in an action for such violation.

Appeal from a judgment of the supreme court, general term, third department, reversing an interlocutory judgment overruling a demurrer by defendants, composing the firm of A. H. Woodward & Co., to plaintiff’s complaint, on the ground that as to them it did not state facts sufficient to constitute a cause of action.

The action was brought by plaintiff against the Union Blue Stone Company and others, and the complaint set forth that an agreement had been entered into between the company and plaintiff, with the other defendants, blue stone producers, by which the company was constituted sales agent for so much of their entire production as the market would take, at prices to be fixed by the producers; that it was to apportion among the producers, from time to time, the proper proportion or percentage which was the due of each producer, and to call upon him to deliver it, and that the company had settled with the other producers, and made an unfair and improper apportionment by which the sales of the plaintiff were reduced in volume, and those of the defendants in

p. 72

creased. The other producers demurred to plaintiff’s complaint on the ground that as to them it did not state facts sufficient to constitute a cause of action, and the court overruled the demurrer.

Garroll Whitaker, for app’It; Wm. P. Williams, for resp’ts.

The terms of the contract between .these parties gave the plaintiff a right of action against the Blue Stone Company, but none against the other parties to the agreement. The complaint assumes its validity and no questions in that direction are raised. The sole inquiry is whether a cause of action was alleged against the demurring defendants. The injury charged is an unfair and improper apportionment of the year’s business, by which the sales of the plaintiff were reduced in volume and those of the defendants increased. The duty of making that apportionment was imposed on the Blue Stone Company as the agent of each of the contracting parties. No such duty was in any manner put upon the other defendants. They had a right to assume that the apportionment was proper; to make the sales as they were directed, and to receive the proceeds of those sales, less the stipulated commission, and came under no obligation to the plaintiff thereby. If the apportionment was wrong it was the sole fault of the Blue Stone Company, which is alone responsible to the , plaintiff. The proper performance of its duty was in no manner guaranteed by the other defendants, nor did they assume any responsibility in that respect. They have received pay for their own property actually sold at the prices established, and are entitled to retain it. If thereby the plaintiff has been injured, the • result flows from no act or omission of theirs, but solely and alone from that of the plaintiff’s authorized agent, who must answer for himself. What the plaintiff says with reference to the rule in equity for the joinder of interested parties is all very well in its proper place. The trouble here is that the defendants demurring have no interest in the action of any kind, and are not necessary parties to any possible remedy of the plaintiff.

The judgment should be affirmed, with costs.

All concur, except Ruger, Ch. J., not voting.