Ahlers v. Smiley

MELVIN, J.

Defendants appeal from a judgment against them and from an order denying their motion for a new trial. The action was one for damages for the violation of a certain contract. Ahlers & East were copartners engaged in the business, among other things, of manufacturing ice. Defendants, also copartners, were retailers of ice. By the terms of the contract, the firm of Ahlers & East agreed to furnish to defendants at the price of four dollars per ton all of the ice

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necessary for defendants to supply their customers. Under this agreement the plaintiff copartnership continued to furnish and the defendants to receive large quantities of ice until July 24, 1905, when the latter refused longer to abide by the terms of the contract and thereafter furnished their customers with ice purchased from the Union Ice Company and other manufacturers. On July 28, 1905, an action was brought to restrain defendants from purchasing ice from any other manufactory than that of Ahlers & East. Judgment enjoining them from the violation of their contract was entered March 15, 1906. From this judgment defendants appealed, but as they had abandoned the business of selling ice, they .failed to file a transcript in this court and their appeal was dismissed.'

On September 6, 1907, the plaintiffs sued for damages and after trial were awarded the sum of four hundred and eighty dollars. This judgment and an order denying a motion for a new trial were reversed on appeal, but leave was granted to file amended pleadings

(Ahlers

v.

Smiley,

11 Cal. App. 343, [104 Pac. 997]). On December 14, 1909, a “second amended complaint” was filed but a demurrer to it having been sustained with leave to amend, a “third amended complaint” was filed. After a demurrer and a motion to strike out had been denied, defendants

answered;

upon the issues then joined a trial was had and judgment was given in favor of plaintiffs for the sum of two thousand two hundred and fifty dollars.

Defendants take the position that the demurrer to the “third amended complaint” should have been sustained or the motion to strike it out should have been granted because it states a different cause of action from that originally alleged. In their initial complaint for damages plaintiffs were described in the caption as “formerly copartners doing business under the firm name of Ahlers & East.” In the body of the pleading they alleged the dissolution of the copartnership in June, 1906. There is also the averment that “on and after July 24, 1905, and until the entry of said judgment on March 15, 1906, these plaintiffs as such copartners were able, willing and ready to perform all the conditions and covenants on their part contained in said contract.” The caption of the third amended complaint describes them as “copartners doing busi