Melnick v. Binenstock

• Decision Date: 27 May 1935
• Docket Number: 374
• Citation: 179 A. 77,318 Pa. 533
• Parties: Melnick, Appellant, v. Binenstock
• Court: Pennsylvania Supreme Court

179 A. 77

318 Pa. 533

Melnick, Appellant, v. Binenstock

No. 374

Supreme Court of Pennsylvania

May 27, 1935

Argued April 25, 1935

Appeal, No. 374, Jan. T., 1934, by plaintiff, from judgment and order of C.P. No. 5, Phila. Co., Sept. T., 1932, No 1547, transferred from C.P. No. 2 of same term and number, in case of Samuel Melnick v. Joseph Binenstock. Appeal dismissed.

Assumpsit.

The opinion of the Supreme Court states the facts.

Affidavit of defense raising questions of law sustained and judgment entered for defendant, opinion by LAMBERTON, J. Plaintiff appealed.

Error assigned, among others, was judgment for defendant.

Appeal dismissed at appellant's cost.

Lemuel B. Schofield, for appellant.

Marshall A. Coyne and David J. Smyth, for appellee.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

PER CURIAM.

Melnick appellant, transferred his property to his wife, the daughter of Joseph Binenstock, upon her agreement that it would be returned to him on demand. The parties separated and Melnick demanded the reconveyance of his property. Failing to receive it, he filed a bill in equity against his wife and her father, Binenstock, charging that the defendants had conspired to and did deceive him by false and fraudulent representation as to the prosperity and condition, as it relates to this suit, of the Pale Moon Corporation of America, and that as a result of such false representation he was induced to give Binenstock $8,000 to be invested in the stock of the Pale Moon Corporation and to be held for him.

The relief prayed for was, among other things, that the $8,000 be returned. On final hearing of the case, Judge MARTIN, on September 15, 1931, entered a decree nisi, in which Binenstock was directed to return to Melnick the sum of $8,000 with interest, or to deliver to him the shares of stock in the Pale Moon Corporation of America which he purchased with moneys belonging to Melnick.

Exceptions were filed to this decree, and on January 27, 1931, those exceptions were dismissed. Later, in February of that year the parties entered into what may be termed a compromise agreement, in which, reciting the pendency of the equity proceedings and the entry of a decree nisi, they agreed as to the settlement of the differences between them, including, among other things, the dispute as to the stock of the Pale Moon Corporation. That agreement provided that "the stock certificate to be assigned to Melnick should be the original certificate," and that if defendants were unable to return the original certificate, the $8,000 should be paid with interest. Subsequently, as stated by Judge LAMBERTON of the court below, a petition was filed praying for an interpretation of the decree nisi. The matter came up before Judge ALESSANDRONI, at which time all the items of the nisi decree had been satisfactorily adjusted with the exception of that relating to the stock of the Pale Moon Corporation; as to it there seemed to be some confusion as to the effect of the decree nisi and the compromise agreement. The testimony of witnesses was taken, covering in all, 162 pages. By agreement of counsel the decree nisi was made final on June 13, 1931, and was entered by the court. Thereafter, the request for an interpretation of the nisi decree was treated as an interpretation of the final decree, and in February, 1932, an opinion was filed in which it was stated that the court had "no hesitancy in finding that Joseph Binenstock purchased $8,000 worth of stock in the Pale Moon Corporation for the plaintiff with money belonging to the plaintiff. The decree requires him to deliver to plaintiff the shares of stock purchased with the money of the plaintiff,...