259 F. 549 | 3rd Cir. | 1919
In this case the Smith-Webster Compan)’, a corporate citizen of Delaware, brought suit against Simon John, William John, and Frank John, partners doing business as 'Simon John & Bros., citizens of Pennsylvania. The jurisdiction of the court below depends on diversity of citizenship, and the fact that the amount in issue between said parties amounts to $3,000.
A consideration of this case satisfies us that, while the necessary diversity of citizenship exists to vest jurisdiction, there is no issue be-' tween the said parties which involves $3,000. As the court below, therefore, was without jurisdiction, it follows that the judgment entered therein in favor of the plaintiff for $1,119.13 must be reversed, and the cause remanded, with instructions to dismiss the case, without prejudice, for lack of jurisdiction. Without entering into a full discussion of its facts and the course the case took on the trial, we confine our discussion to those features alone which are pertinent to the conclusion we have reached that the court below was without jurisdiction.
The present suit is an action of assumpsit, which, under the Pennsylvania Procedure Act of 1887,
“It is agreed and understood by the parties hereto that the goods covered by this contract are to be billed by the Smith-Webster Company, of Bel Air, Md., and proceeds collected by said company for account of the seller.”
Now, it will be observed that Smith, who it is alleged contracted with the defendants, is not an actor or use parfy in this suit. There is no evidence that he authorized it or indeed knew this suit had been brought, but the alleged right of action' of the Smith-Webster Com
But, assuming, for present purposes, the clause in question transferred Smith’s right of action for its breach to the Smith-Webster Company, such transferred right of Smith cannot be maintained in the court below, because the claim of Smith was for but $1,400. But this inadequate jurisdictional claim the plaintiff seeks to increase to the jurisdictional sum of $3,000 by adding thereto the transferred right of action of one F. W. Smith and one G. W. Gosweiler, who also had contracts of a similar character with the defendants. So far as the pleadings show, the plaintiff does not allege any relation or interdependence of said three contracts, but simply avers a right of action—
“in accordance with section 14 of each of the contracts above mentioned, for account of the several sellers.”
“So far as relates to procedure, the distinctions heretofore existing between actions ex contractu be abolished, and * * * all demands, heretofore recoverable in debt, assumpsit or covenant, shall hereafter be sued and recovered in one form of action, to be called an ‘action of assumpsit.’ ” P. L. 271, § 1.
Broker’s Canned Foods Contract.
Smith-Webster Company,
Brokers and Commission Merchants.
Bel Air, Md., May 31, 1917.
Sold (subject to the terms and conditions on the reverse side hereof) to Simon John & Bros., TJniontown, Pa., for account of F. Nelson Smith.
Delivered f. o. b. Bel Camp, Md., B. & O. It. R., with 300 c/s 3’s from
F. W. Smith.
Shipment during packing season of 1917
Price per
Cases. Goods. Dozen.
600 No. 2 Standard Tomatoes, packing of 1917, sanitary cans, “Scotland” brand, at............................................. $1.20
R & C
(Should the packer of the goods covered by this contract be prevented by war conditions from securing the necessary raw stock, cans, canning supplies, or labor, the packer’s liability hereunder ceases.)
Smith-Webster Company, Brokers, By Webster.
“Terms and Conditions of This Contract of Sale.
* * * * * * ♦ • * * *
“14. It is agreed and understood by the parties hereto that the goods covered by this contract are to be billed by the Smith-Webster Company, of Bel Air, Md., and proceeds collected by said company for account of the seller.”