. ,'I'EDEBAL ·BEfOBTEU.
would naturally suppose that, in view of evidence which could not but be considered as damaging, the defendant would have. made such statements Hnd explanations as might tend to satisfy a trier that the inferences which 'were sought to be drawn from the evidence were unfounded. He made, howeverjbllt little explanation; and, when his case was known to be iridanger,he apparently furnished his able ,and ingenious counsel ,with, no theory which they could press upon the attention of the court. There should be a final :decree in accordance with the findings of modified in this opinion.
& MICHIGAN SbU'I'FnJRN R. Co. and 'others."
S. D. New
York. March 9, 1881:)
On a joint clainl join:i action must be brought.
PARTNERSHIP-EXECUTQR OF DECEASED PARTNER-Sun' ON'pARTJ>'"EnSIDP CLAIM.
A bill, brollght byth"e'exeoutor of a deceased partner to such partner's share in a partnership dlMm, is:demurrable, though the surviVing partners were made defendants in the bill, and though the !Jill alleged that they ,'had been requested to join as but had refused to so·
.George NO'1',riB, for plaintiff. '.
John E. Burrill, for defendants. BLATcHFoRD, C. J. By death of John T. Alexander,' the Bole andexchisive ;right and reduce into possession the claim which is the subject"matt13r :0f this suit survived to the surviving -partners of the firm. Theelaam is a claim which belonged to the partnership as such. It was a joint claim, !lnd nota claim in which, .as.respected the defendants, or any suit against them to recover the claim, the members of the copartnetship had a several interest, or ltn interest which would have authorized anyone of them to maintaill 'a Stut, to recQverhis aliquot share of the claim before the de.ath of any one'of the partnSTS.. The: two surviving partners are made de· fendants. The 'louit:is brought by the executor of the dec1lased partner to recover only the share of the deceased partner in thaclaim. The claim iii '& unit. The surviving partners are the only proper 'persons toaue for the claim.· Ifl"onany allegations, the executor'of the deceased partner could be.l:tHowed to sue, making the two ling partners defendants, hecouJ.d not do so alleging that th&
.See t4 }<'ed. Rep. 261.
MISSOURI tURNACE CO.
sUf'Viving partners refused to sue when they ought to sue. I 'There 'is nO such allegation in this bill. The only allegation istha.-t the pla.intiff requested them to "join. him as complainants lierein." 'Atldthat they refused to do so. It was proper for them to reruse;tb jpin witH the plaintiff, as he is not a proper party plaintiff, and bis: suit is only to collect his own share. The defendants, against whom a recovery is sought, have a right to demand that the whole:cl!liim, being a. part. nership claim, shall be sued for in one suit· by the proper plaintiffs. To allow this suit would be to sanction as many separate suits in respect to portions of the claim as there were partners. The demurrers mUBtbe allowed, with costs, with liberty to the plaintiff, under rule 35 inequity, to move for leave"to:aniEmd his bilL
(Oirtmit OJurt, W. D. Pl11Iilta'yZtJania.Auguilt '26; '188l.J
, ' .
TO FURNISH COKE TO PROPRIETOR OF Br,AsT FURNACES -BREACH BY VENDOR, AND NOTIctl: THAT WII,x; NOTDELIVimLNltw FORWARD CONTRACT BYYENDEE-"-MBASURE OFDAMAGltk :"
Defendant's intestate sold and dlllivel' to plainti:Q:" blast furnaces fol' iron, ConnelIsyilleqoke, ton, deliverable, in eq'ual daily on each working' day durlng' the year--1880. After delivering 3,76/),tOIlll, the venUo!', withQut' valid, excuse,. , tied plaintiff, on Jrebruary 13, 1880, thilthe r,escip.ded, the 1,l0Iltract,IlJ1& tlJ-ere, after delivered no coke. The vendor persisting in his to plaintiff, OIJ. 27, 18£0, made a SUbstantially siinilar, forward 66n,traet with H. for tl1edelivery, during the balance of the year, tOnS ()f!such coke at four dollars per. ton', which ·was the 'then market rate for 8Uchpl Wrr ward contract" and rather the market .prke, for pre\leqt market price of coke dechned In May, 1880, to$l..30 per ton. "'rhe plambfl' brought suit on February 26, 1880. Held, (1) that tl1eplll'intrfl 'Wits licit etititled t.o recover the difference between the price,stipulated in tlie'contniCtl'sueii 011 and the price which the plaintiffQ.greed to pay H. the ruary 27, '1880; (2) that the of damages was the sum of the ,q.ifferel\ces between the price stipulated hi the contract sued on and the' fuarket prIce of Connellsville coke, at: the place of delivery, on the several 'days'whenthe sav' eral deliveries shou'd have been mlld6 under tl\e contract.
Sur motion ex pm·te plaintiff fora new triat Ilem'Y IIitc!Ux)cft; IOeorge Shims, and'S. Sciwyer,Jt., 'for plaiBWf. o. E. 'Bo.lJle and D./1'1 iWatson, for defendant. ACHESON,D. J'. .' This suit,brought February to tecoV'er damages fot' the breach by John M.. Cochrarrt of 's·contl1 fot a.ct the sale and, deliveTy by hlm1tothe plaintiff of 36;'021: tons 'Of'; sta,tid.. ard Connellsvilunmkej' at 'the Price ()f' $IL20 par tOOll; tt>t.all