At the opening of the trial in this canse the defendant objected to any testimony, for the reason that the petition did not state facts sufficient to constitute a cause of action. The objection was sustained. Plaintiff then asked to take a non-suit, which was refused and judgment rendered against him, and he appeals.
The petition alleges that plaintiff entered into a written agreement with one Collins, whereby he leased to him a small tract of coal land for three years, in which Collins agreed for himself and his assigns that he or his assigns would pay plaintiff one cent per bushel for all coal taken out except such as was used for fuel, etc.; that Collins entered g,nd began to mine coal; that afterwards the defendant, with the consent of plaintiff and with a full knowledge of the terms of the lease, purchased a half interest therein from Collins, and did, in connection with Collins as a partner, enter into possession of the mine and take out coal for a certain space-of time. The petition then charges the amount of coal taken out by Collins and defendant, and that defendant expressly agreed to pay one cent per bushel for said amount (the sum stipulated in the lease); that defendant has paid on the sum due eighty-four dollars and forty-one cents, leaving the balance due plaintiff, etc.,, for which he asks judgment. That the petition was not drawn with the precision and definiteness it should have been is certain, yet 1 think a cause of action can be said to be stated. Defendant is charged to have bought into the mining operations of Collins, with a knowledge of the terms under which Collins operated, with plaintiff’s conseht. He is charged to have been a partner of Col*497lins in the business ; that he expressly agreed to pay for the amount of coal taken out and did pay a portion of the claim. We have considered defendant’s suggestions as to the technical legal relations which exist between a landlord and an assignee of his tenant, but we think enough has been stated in the petition to make a cause of action apart from such consideration.
The judgment is reversed and the cause is remanded.
Hall, J., concurs ; Philips, P. J., not sitting.