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TATE v. SHOBER

October 22, 1941

TATE et al.
v.
SHOBER



The opinion of the court was delivered by: KALODNER

This case is before the court on defendant's motion to dismiss the amended complaint.

In substance, the amended complaint avers:

 Contemporaneously, the plaintiff Continental assigned to the plaintiff Wattles a one-half interest in these agency contracts in consideration of his services in their negotiation (Paragraph 3, Amended Complaint). The plaintiff Tate is the president of Continental.

 On or about January 4, 1939, the defendant Shober "orally agreed" to purchase the interest of the plaintiff Continental in the aforementioned sales agency contracts for $5,000 (Paragraph 4, Amended Complaint).

 Subsequently, on January 13, 1939, the plaintiff Wattles -- as "defendant's agent duly authorized" -- sent a letter to Tate as president of Continental, which letter enclosed a draft of an assignment of the sales agency contracts (Paragraph 6, Amended Complaint).

 The letter of January 13, 1939 (Exhibit "B" to the Amended Complaint), follows:

 "I am attaching hereto contract reciting agreement between Samuel L. Shober, Jr., yourself, myself and Continental Collieries, Inc.

 "If you will execute the original and one copy and return with the original sales contracts attached, Mr. Shober will issue his check in your favor for $5,000. upon receipt of which I will turn over to him the executed papers and contracts and simultaneously mail you Mr. Shober's check."

 The assignment of the agency contracts, referred to in the letter of January 13, 1939 (Exhibit "D" to the Amended Complaint), read as follows:

 "Know All Men by These Presents That we, Ben E. Tate, of Cincinnati, Ohio, Frederick M. Wattles, of New York City, and Continental Collieries, Incorporated, a Delaware Corporation, for and in consideration of the sum of Five Thousand Dollars, receipt whereof is hereby acknowledged, hereby sell, assign, transfer and set over unto Samuel L. Shober, Jr., of Philadelphia, Pennsylvania, his heirs, executors, administrators, and assigns, all our and each of our right, title and interest in and to the following exclusive sales agency contracts wherein we are the exclusive sales agents for the sale of coal produced by the below named coal companies:

 "Contract with Tioga Mining Co., entered into the 10th day of March, 1938.

 "Contract with Edyth Coal Co., entered into the 6th day of April, 1938.

 "Contract with Lundquist Coal Co., entered into the 13th day of September, 1938.

 "Contract with Wyoming Valley Engineering Co. Inc., entered into the 6th day of October, 1938.

 "Contract with Patrick B. Brown, Harold Weikel and Willard O. Wolfe, co-partners trading as Antrim Coal ...


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