Alexander v. Righter

• Citation: 240 Pa. 22,87 A. 427
• Decision Date: 17 March 1913
• Docket Number: 10
• Parties: Alexander v. Righter, Appellant
• Court: Pennsylvania Supreme Court

87 A. 427

240 Pa. 22

Alexander v. Righter, Appellant

No. 10

Supreme Court of Pennsylvania

March 17, 1913

Argued February 12, 1913

Appeal, No. 10, Jan. T., 1913, by George W. Righter defendant, from judgment of C.P. Delaware Co., June T., 1911 No. 295, on verdict for plaintiff in case of H. Warren Alexander, Jr., v. George W. Righter, G. Harold Righter and Irving W. Sanderson. Reversed.

Assumpsit to recover upon an oral contract. Before JOHNSON, P.J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $3,329.84. George W. Righter, one of the defendants, appealed.

Errors assigned were various rulings on evidence and instructions to the jury.

The judgment is reversed with a venire facias de novo.

Joseph Hill Brinton, with him J. Claude Bedford, for appellant.

W. Roger Fronefield, with him Horace M. Rumsey, for appellee.

Before FELL, C.J., BROWN, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

The plaintiff was a member of a copartnership with the defendant and two others, in which each had furnished a share of the capital; the plaintiff desired to withdraw and prepared a written statement showing the amounts contributed by him; the other partners agreed to the correctness of the sum claimed and gave him permission to retire; in order to carry out the understanding between them the plaintiff prepared a series of notes drawn to his order and payable at successive dates, covering a period of fifteen months; these notes were signed by one of the remaining partners and endorsed by the other two; they were not paid at maturity and the plaintiff instituted a suit thereon; after an affidavit of defense had been filed by one of the endorsers, the plaintiff brought the present proceedings on an alleged promise to pay aside from the notes; he recovered a verdict for the full amount of his claim, on which judgment was entered. The action was originally against all the partners but only one defendant was served, and the jury was sworn as to him alone; this defendant has appealed.

The plaintiff's contention was that at the time of the dissolution of the firm his copartners had agreed to pay him for his interest in the business the amount of his original contribution as shown by the written statement prepared by him, and that the notes were given merely as collateral to this promise to pay. The defense contended for at the trial was a denial that there had ever been a settlement of the firm's accounts or an actual valuation of the plaintiff's interest, a denial of any admission of indebtedness to the plaintiff, or any engagement to pay aside from the promissory notes, and an assertion that the plaintiff proposed to his copartners that he would retire from the firm upon the delivery to him of a series of promissory notes totalling the amount of his original contribution, and that when this proposition was accepted and the notes delivered it was further expressly understood and agreed that the amount to be returned to the plaintiff should be payable only out of future profits earned by the business. In other words, the contention of the defendant was that neither he nor the other partners at any time prior to the dissolution of the firm owed or acknowledged that they owed the plaintiff any sum of money; that they merely agreed, so far as they could, to permit him to retire from the business and thereby avoid the possibility of future losses, and that the promissory notes were given as a method of carrying out this agreement, upon the understanding between the parties and on the agreement of the plaintiff that they were payable exclusively out of future profits to be earned by the business.

A careful reading of the record returned to this court including the testimony, shows that from the beginning to the end of the trial counsel endeavored in every way within his power to make plain the case here outlined, and justifies his assertion that the presiding judge apparently failed...