Rhoads & Shuster v. Fitzpatrick

Opinion by

Mr. Chief Justice Sterrett,

This suit against the appellant, Thomas Fitzpatrick, and twenty-eight others, “ now or late doing business as the Central Coal Dealers’ Association,” was brought by Samuel H. Rhoads and W. Durrell Shuster, trading as Rhoads & Shuster, to recover $1,102.20, balance book account for coal alleged to have been sold and delivered by plaintiffs to the association defendant between the first of January and the sixth of May, 1894, with interest, etc.

Assuming for the present that plaintiffs’ statement is sufficiently specific, the sole question is whether appellant’s affidavits do not present a good defence ? After averring “ that he has a full, just and complete defence to the plaintiffs’ claim,” he further says, inter alia, that “ he is not now and has not been connected in any way with the Central Coal Dealers’ Association since December 18,1892; that he is not indebted to plaintiffs in any sum whatever for coal sold and delivered, or for any other account whatsoever; . . . that plaintiffs never dealt with said association while deponent was a member, and W. Durrell Shuster, one of the above named plaintiffs, knew that deponent was not a member of said association ; ” and, in substance, he further says that he withdrew from said association in December, 1892, and has not since been connected therewith.

Assuming, as we must, for the purposes of this appeal, that these and other averments, contained in the affidavits of defence, are true, it is very evident that the plaintiffs were not entitled to judgment for want of a sufficient defence, and hence the court erred in making the rule for judgment absolute. Appellant not only denies that he was a member of the defendant association during the period within which the coal was sold and delivered, but he positively avers that this fact was known to one of the plaintiffs. This was quite sufficient to put the plaintiffs to proof of the fact that appellant was a member of the defendant association to which the coal was sold and delivered, or of such other facts as would make him jointly liable with those who then composed said association.

Judgment reversed and a procedendo awarded.