Froess v. Froess

• Citation: 137 A. 124,289 Pa. 69
• Decision Date: 14 March 1927
• Docket Number: 127,126
• Parties: Froess, Admrx., v. Froess
• Court: United States State Supreme Court of Pennsylvania

137 A. 124

289 Pa. 69

Froess, Admrx., v. Froess

Nos. 126, 127

Supreme Court of Pennsylvania

March 14, 1927

Argued February 2, 1927

Appeals, Nos. 126 and 127, Jan. T., 1927, by Aeolian Company and Becker Brothers, claimants, from order of C.P. Erie Co Sept. T., 1921, No. 9, dismissing exceptions to adjudication of receiver's account, in case of Sarah L. Froess Administratrix of Philip J. Froess, deceased, v. Jacob Froess. Affirmed.

Bill for appointment of receiver.

Exceptions to adjudication of receiver's account. Before HIRT, J.

The opinion of the Supreme Court states the facts.

Exceptions dismissed. Aeolian Company and Becker Brothers, claimants, appealed.

Error assigned was in both appeals, inter alia, decree, quoting record.

The decree of the court below is affirmed at appellants' costs.

W. P. Gifford, of Gunnison, Fish, Gifford & Chapin, for appellant. -- The following authorities are submitted as bearing upon the questions at issue: Bidwell v. Pittsburgh, 85 Pa. 412; McGinty v. Flanagan, 106 U.S. 661; Hoyt v. Sprague, 103 U.S. 613; Second Nat. Bank of Titusville's App., 83 Pa. 203; Ebbert's App., 70 Pa. 79; Hay's App., 91 Pa. 265.

Charles A. Mertens, for appellee, cited: Farmers' & M. Nat. Bank v. King, 57 Pa. 202; National Bank v. Ins. Co., 104 U.S. 54; Eifert v. Lytle, 172 Pa. 356; Holmes's App., 79 Pa. 279; Jacobs v. Union Assn., 1 Pa. Superior Ct. 156; Robinson v. Ry., 66 Pa. 160; Youse v. McCarthy, 51 Pa.Super. 306; Hansell v. Downing, 17 Pa.Super. 239.

Before MOSCHZISKER, C.J., FRAZER, WALLING, KEPHART and SCHAFFER, JJ.

OPINION

MR. JUSTICE FRAZER:

These two appeals raise practically the same questions and will be disposed of in one opinion.

Jacob Froess and Philip J. Froess were for twenty years engaged as partners in the piano business in the City of Erie, under the firm name of Froess Brothers. Philip died January 29, 1920, and letters of administration on his estate were duly issued to his widow, Sarah L. Froess. Jacob took possession of the firm assets on the death of his brother and continued the business under the partnership name, mingling the funds and assets of the former partnership with those of the new business. In August, 1921, the court appointed a receiver for the partnership assets and in the accounting which followed, the widow, who had elected to take her share as of the date of her husband's death with interest thereon in lieu of profits, was held entitled to receive the sum of $45,988.85 with interest.

On appeal this decree was affirmed, though modified so as to make clear that the lien of the widow's claim was not limited as a personal judgment against the survivor, but that partnership assets were subject to the payment of the claim: Froess v. Froess, 284 Pa. 369, 377.

Following that decision, in a proceeding for the distribution of funds in the hands of the receiver, it was claimed there was in fact an agreement between the administratrix of the deceased partner and the surviving partner whereby the former agreed to sell to the latter her interest in the partnership property, at a price agreed upon, and that she permitted the survivor to continue the business, pending the completion of such negotiations, thereby waiving all right to ask an accounting as of the date of the death of her husband, and further that she was not entitled to preference over creditors whose claims arose out of transactions with the surviving partner. These contentions raised a question of fact concerning what actually took place between administratrix and the surviving partner.

Testimony was offered by the administratrix which tended to show the surviving partner had been notified not to enter into new transactions which would in any way involve the estate of the deceased partner. It was admitted negotiations had been pending since the death of the partner, for the purchase of decedent's interest by the survivor, but it was claimed no agreement as to price or terms of sale had been reached though a price was finally agreed upon which involved the transfer of a number of piano leases to the widow, which the surviving partner was unable to produce, and demand was then made on him to liquidate the business. The evidence is sufficient to...