DeSantis v. Miller Petroleum Co.

McCOMB, J.

From a judgment in favor of defendant Caminol Company, Ltd., after trial before the court without a jury in an action to recover a sum of money alleged to be due as the purchase price for certain merchandise plaintiffs appeal.

These are the essential facts:

Ducommun Metals

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Supply Company sold to defendant Miller Petroleum Company oil well tubing and casing, upon the purchase price of which there remained unpaid $12,166.93. Plaintiffs guaranteed that the Miller Petroleum Company would pay for the merchandise, and, upon its failure to do so, paid the amount of the indebtedness to the Ducommun Metals

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Supply Company. Plaintiffs then filed the present action against defendants, which after containing appropriate allegations of the existence of a partnership between defendants was in the form of a common count for goods, wares, and merchandise sold and delivered to defendants at their special instance and request, and prayed for judgment in the amount they had paid to Ducommun Metals and Supply Company. Defendant Caminol Company, Ltd., denied generally and specifically the allegations of plaintiffs’ complaint.

At the close of the trial the court caused a minute order to be entered giving judgment in favor of plaintiffs against defendants. Thereafter, upon motion of defendant Caminol Company, Ltd., the trial court permitted the case to be reopened for the taking of additional testimony, the substance of which being that Mr. Covel, district manager of Ducommun Metals & Supply Company, prior to selling or delivering any tubing or casing to the Miller Petroleum Company, called upon the purchasing agent of the Caminol Company, Ltd., and president of the Caminol Company, Ltd., and was informed by them that defendant the Caminol Company, Ltd., would not be in any way responsible for casing or tubing-purchased by defendant Miller Petroleum Company; and that thereafter and prior to any sale to the Miller Petroleum Company the credit manager of Ducommun Metals and Supply

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Company telephoned defendant the Caminol Company, Ltd., and made inquiry relative to the credit to be extended by Ducommun Metals & Supply Company for easing and tubing to be delivered to the Miller Petroleum Company and was informed that defendant Caminol Company, Ltd., would in no way be responsible for the payment of any bill for tubing or casing thus delivered and that neither defendant J. Warren Miller or Miller Petroleum Company had any authority to purchase for the account of defendant Caminol Company, Ltd.