Darlington v. Reilly
| Decision Date | 14 November 1949 |
| Docket Number | 1034 |
| Citation | 363 Pa. 72,69 A.2d 84 |
| Parties | DARLINGTON et al. v. REILLY et al. Appeal of WAGNER et al. Appeal of ROSENBERG. |
| Court | Pennsylvania Supreme Court |
Argued September 28, 1949
Appeals, Nos. 141 and 142, Jan. T., 1949, from order of Court of Common Pleas No. 5 of Philadelphia County, March T., 1946 No. 4068, in case of Jese Darlington et al. v. Paul Reilly Trustee, et al. Order affirmed.
Bill in equity. Before SMITH, P.J.
Adjudication filed finding for plaintiffs; defendants' exceptions dismissed, final decree entered for plaintiffs and petition to intervene dismissed. Petitioners appealed.
Order affirmed at appellants' costs.
I Emanuel Sauder , for appellants.
William D. Harkins, with him T. Ewing Montgomery, for appellees.
Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
These appeals are not by any of the parties to this litigation but by would-be intervenors whose petitions to enter the proceedings were denied by the court below.
Jared and Paul Darlington, in 1933, conveyed certain lands owned by them in Delaware County to Paul Reilly as trustee, and at the same time entered with him into a so-called deed of trust which set forth the terms and obligations under which Reilly was to hold title. In general, he was to develop the property as a cemetery to be known as Hiram Memorial Park and for that purpose to sell lots and burial rights therein. Reilly failed to carry out the duties thus imposed upon him; on the contrary, he transferred his responsibilities and turned over practically the entire venture to a corporation entitled Commemoration Associates, Inc. The latter in turn entered into a verbal contract with a partnership consisting of James G. Calebaugh and Charles Stratton whereby it employed them to conduct the selling operations of the lots upon a commission basis; they were to receive, in the first instance, the moneys from the sale of the lots, out of which they were to retain their expenses and commission. Calebaugh and Stratton engaged several salesmen; most of the sales were made under installment-payment contracts and the salesmen were to receive commissions of 30% of the sales price, to be paid to them as the installment payments were received. Among those thus employed were Wayne J. Alleman and J. G. Farquharson, who, during the course of their employment, sold some 700 of the lots and thereby became entitled to receive from Calebaugh and Stratton $20,000 in commissions, which, however, was never paid to them. On January 21, 1948, Alleman, and on February 5, 1948, Farquharson, sold and assigned to Joseph L. Rosenberg all their right, title and interest in and to their claims for commissions, the assignment by Alleman being limited to his claim for such commissions up to $1,400. On February 16, 1948, Alleman made a similar sale and assignment of the balance of his claim to Martin M. Wagner and Joseph L. Rosenberg, trading as Wagrose Trading Company.
On May 7, 1946, the plaintiffs in the present equity proceedings, being the heirs and devisees of Jared and Paul Darlington (who had died in 1934 and 1938 respectively), filed a bill in equity praying that the original conveyance to Reilly be cancelled, that the deed of trust be declared null and void, that reconveyance of the property be made to plaintiffs, and that Reilly, Calebaugh and Stratton be directed to turn over and surrender to plaintiffs possession of the premises. Reilly died July 9, 1946, and on December 5, 1946, Glenn A. Troutman, Esq., was appointed by the court trustee in his stead with all the powers of a receiver in equity. On December 26, 1946, Troutman filed a petition for leave to disclaim and repudiate the contract between Reilly and Commemoration Associates, Inc., on the ground that Reilly had not had the right to enter into such a contract, that, in any event, it had been breached by Commemoration Associates, Inc., that misrepresentations were being made to the public by Commemoration Associates, Inc. and by their sales agents, Calebaugh and Stratton, and that it was not to the best interests of the trust estate to allow the sale of burial rights to be continued by them. On February 7, 1947, the court granted this petition and authorized Troutman to take possession of the property. Upon Calebaugh and Stratton failing or refusing to deliver possession to Troutman the latter obtained a contempt order against them which was sustained on appeal to this Court (Darlington v. Reilly, Trustee, 358 Pa. 380, 57 A.2d 861) and they thereupon surrendered possession. On April 23, 1948, the court entered a decree authorizing and directing Troutman as trustee-receiver to collect and receive installment payments from the persons who had purchased lots from Commemoration Associates, Inc., or from Calebaugh and Stratton, without prejudice, however, to the rights of that corporation and partnership to have their rights under their contract with Reilly adjudicated in proper proceedings, and also without prejudice to the rights of salesmen employed by Commemoration Associates, Inc. or by Calebaugh and Stratton.
On August 26, 1948, the court...
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