Appeal of Zell

• Citation: 17 A. 647,126 Pa. 329
• Decision Date: 13 May 1889
• Docket Number: 304
• Parties: APPEAL OF T. BURD ZELL ET AL., EXRS. v. ZELL'S ADMRS.] [CLARK'S ADMRS.
• Court: Pennsylvania Supreme Court

17 A. 647

126 Pa. 329

APPEAL OF T. BURD ZELL ET AL., EXRS.

[CLARK'S ADMRS. v. ZELL'S ADMRS.]

No. 304

Supreme Court of Pennsylvania

May 13, 1889

Argued March 4, 1889

FROM THE DECREE OF THE COURT OF COMMON PLEAS OF BERKS COUNTY.

No. 304 January Term 1888, Sup. Ct.; court below, No. 351 Equity D 1884, C.P.

On September 6, 1884, James B. Clark, administrator d.b.n.c.t.a of John W. Clark, deceased, filed a bill in equity against Thomas Zell, charging that the defendant, as surviving partner of the firm of Clark & Zell, had received certain moneys of the said firm, praying for an account, etc. The defendant having filed an answer, issue was joined, and the cause was referred to Mr. Henry A. Muhlenberg, as examiner and master.

On April 23, 1885, the death of Thomas Zell was suggested and Josephine Zell, Thomas Burd Zell and William T. Zell, his executors, were substituted as defendants.

On December 3, 1886, upon findings of fact and conclusions of law stated in the syllabus but more fully appearing in the opinion of this court, the master recommended a decree that Josephine Zell, Thomas Burd Zell and William T. Zell executors of Thomas Zell, deceased, pay to James B. Clark, administrator etc. of John W. Clark, deceased, the sum of $6,594, with interest from February 13, 1883, amounting to $8,532.64, and that said executors pay the costs of this proceeding.

Of numerous exceptions filed to the master's report by defendants one was as follows:

34. For that the master did not pass upon and allow the claim made before him by the defendants for compensation to Thomas Zell for services rendered in the collection of the money recovered by him, as it clearly appears from the correspondence put in evidence by the plaintiff, between him and Mrs. E. C. Burton and John E. Young, that he was to receive compensation.

The exceptions were all dismissed by the court, ERMENTROUT, J., the master's report confirmed, and the decree recommended by the master signed and entered. Thereupon the defendants took this appeal assigning as error, the dismissal of their exceptions, the confirmation of the master's report, and the said decree.

The decree will be modified in accordance with the views herein expressed, and the record is remitted for that purpose.

Mr. H. Willis Bland and Mr. Josiah Funck, for the appellants.

Mr. Jeff. Snyder (with him Mr. Geo. F. Baer), for the appellee.

Before PAXSON, C.J., STERRETT, WILLIAMS, McCOLLUM and MITCHELL, JJ.

OPINION

JUSTICE MITCHELL:

In 1855 Clark & Zell, who were partners in the lumber business, purchased an interest in certain tracts of land in Centre and Clearfield counties. The legal title was held by a trustee, who in 1859 sold the land, filed his account, and after much delay and litigation, paid Clark & Zell's share to Clark who was the liquidating partner of the firm, then dissolved.

About 1878, Zell and the heirs of Clark, who was then dead, alleging that the sale by the trustee was fraudulent, began various proceedings by ejectment and bills in equity to recover the land. As a result Zell received from Hon. William A. Wallace, in 1882, the sum of fifty thousand dollars in full settlement, and made a quit claim deed in his own name and as surviving partner of Clark & Zell. This bill was then filed by the heirs of Clark, for an account and payment of Clark's share of the money.

This is a very general outline of the numerous and complicated transactions, extending over a period of thirty years, that are more or less closely involved in the bill. The real pinch of the contest, however, turns upon two cardinal facts; first, whether the interest of Clark & Zell in the lands was partnership property, and secondly, whether Zell received the money as surviving partner, for the extinguishment of the joint interest in the lands. Zell denied both of these propositions, and defended on various other grounds including that of estoppel.

The learned master in the court below has relieved us from a large part of the burden which such a case would ordinarily impose, by a report which is a model of methodical arrangement, clear statement, and accurate application of the law. He finds first, that the interest of Clark & Zell was never an estate or interest in the lands themselves, but only in the proceeds, and therefore that it was not real estate but a chose in action; secondly, that it was purchased with partnership funds, and was partnership property; thirdly that the deed of Zell in consideration for which he received the money, was executed as surviving partner, and by virtue of such execution passed all the interest of Clark's heirs in the land whatever it was, to Wallace, and therefore they were entitled to a share of the money; fourthly, that although Zell had been impeded and interfered with in getting the money, by the conduct and conflicting claims of the Clarks, yet he had in fact not lost anything or been induced or obliged to alter his position for the worse thereby, and therefore they were not estopped from claiming their share; fifthly, that such claim was properly asserted in equity, the bill being for discovery as well as account, and that even if this were more doubtful than it is, nevertheless the objection came too late after answer, and proceeding before the master for over nine months; sixthly, that the denials in the answer of respondent were overborne by the other testimony, which was ample to meet all the requirements of equity for that purpose; and lastly, that on settlement of the account, with allowance for counsel fees and expenses, there was due from respondent Zell to comp...