Book v. O'Neil
| Decision Date | 16 July 1896 |
| Docket Number | 7-1896 |
| Parties | Harlan Book, Administrator of J. M. Davis, deceased, v. J. A. O'Neil, Surviving Partner of O'Neil & Davis, Late Partners |
| Court | Pennsylvania Superior Court |
Argued May 11, 1896
Appeal by defendant, from judgment of C. P. Butler Co.-1895, No 113, for plaintiff.
Assumpsit for balance due on settlement by defendant as surviving partner of the partnership business of the late firm of O'Neil & Davis. Before Greer, P. J. Judgment for plaintiff for $ 203.84.
On the trial the following agreement was filed:
Agreement to submit the case to court, and the following facts agreed upon by the parties:
First. J. A. O'Neil and J. M. Davis were partners in the business of drilling oil and gas wells.
Second. J. M. Davis died on or about the 16th of October, 1893 leaving a widow, Ellen Davis, and seven small children.
Third. Harlan Book was appointed administrator of said decedent.
Fourth. That the said J. A. O'Neil claimed the right, as surviving partner, to settle up the partnership estate. That he took possession of the estate, disposed of the same, and stated an account showing a balance due the estate of J. M Davis of $ 203.84, from which he claims the right to deduct the sum of $ 156.50, with interest, $ 18.00, making in all $ 174.50, due him from the said J. M. Davis at a former settlement of the partnership business, and $ 10.00 for expenses in settling the partnership estate after the death of the said Davis.
Fifth. That the said widow, Ellen Davis, claimed the benefit of the exemption law and asked to have property or money to the amount of $ 300 set apart for the use of herself and family out of the said partnership estate, the said J. M. Davis leaving no other property of any kind.
Questions upon which we ask the opinion of the court:
Can the surviving partner, J. A. O'Neil, retain out of the assets in his hands the said balance due him from said decedent, $ 174.50, by a former settlement of the partnership business as against the widow's claim for the benefit of the exemption?
Can the surviving partner retain $ 10.00 for expenses in settling the partnership estate?
Both parties reserve the right of appeal or writ of error to the Superior Court from the decision of the court below in this case.
Errors assigned, were, extracts from opinion of the court below, quoting same; refusal of allowance of $ 10.00 for expenses referred to in opinion of the Superior Court; entering judgment for plaintiff.
Modified, judgment affirmed.
S. F. Bowser, with him A. L. Bowser, for appellant. -- Davis could not have recovered the balance sued for: McCormick's App., 55 Pa. 254; Skiles v. Houston, 110 Pa. 257; Light v. Leininger, 8 Pa. 404; Scott's Est., 42 Pa. L. J. 475. Defendant is entitled to charge for proper and reasonable expenses connected with the litigation: Meskill v. Stratton, 7 Phila. 395.
J. D. Marshall, for appellee. -- No question of trust or widow's exemption was raised in the cases cited by the appellant.
In settling the partnership of an estate defendant acted in a trust capacity and the balance is due from him, not as an individual, but as a trustee: Moffit v. Thomson, 57 Am. Dec. 737.
Davis had no right of action against defendant prior to or at the time of his death. Defendant acted as a trustee in the settlement of the partnership estate. If defendant had refused to settle said estate and some one else had wound up the partnership affairs defendant would never have become indebted to the estate of Davis.
The rule that mutual debts actually due and payable in the same right cancel each other does not apply to this case, first, because there were no mutual debts at the death of Davis and, second, because the debts said to be offset against each other are not in the same right. The claims remained fixed as of the time of the death of the decedent: Bosler v. Exchange Bank, 4 Pa. 32.
Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
As shown by the case stated Davis and O'Neil were partners. The former died October 16, 1892, leaving to survive him a widow and children.
The partners had made a settlement of their personal accounts in the partnership business, and determined that there was due from J. M. Davis to J. A. O'Neil the sum of $ 156.50, subsequent to which O'Neil settled the firm affairs. The plaintiff as administrator of Davis made demand for $ 203.84 as due from O'Neil in the final settlement for the reason that it was claimed by the widow and family of the decedent as part of their exemption, and brought an action of assumpsit to recover. On February 14, 1895, O'Neil filed a statement of the firm accounts as part of his affidavit of defense, showing a balance due J. M. Davis, deceased, of $ 203.84, from which he claimed the right to deduct $ 156.50, interest $ 18.00, and 10.00 for expenses in settling the partnership estate after the death of Davis. After the case was at issue by agreement of counsel, the action was put in the form of a case stated, but is not as full and clear in its terms as required by the decisions: Loux & Son v. Fox, 171 Pa. 68, 33 A. 190.
No objection is made by counsel, and the parties press for a decision. In view of the facts we dispose of it without being bound by its irregularities as precedents. After hearing judgment was entered in favor of plaintiff by the court below for $ 203.84 and costs.
When the partners settled their business and determined that $ 156.56 was due from Davis to O'Neil, it formed the basis of...
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...Bros., for appellant. -- Bressler should have been allowed a credit of $ 50.00 for collecting the amount of said judgment: Book v. O'Neil, 2 Pa.Super. 306. seems to us that the same rules which govern the court in the trial of cases on motions for nonsuit ought to determine the question as ......