7 N.Y.S. 744 | N.Y. Sup. Ct. | 1889
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,
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 whom 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