Davidson v. Davidson

262 Pa. 520 | Pa. | 1919

Opinion by

Mr. Justice Frazer,

Defendant appeals from a decree of the court below directing him to render an account to plaintiff as trustee for shares of stock coming into his hands from time to time for the benefit of plaintiff. The appeal is taken under the provisions of the Act of June 24, 1895, P. L. 243, allowing an appeal by defendant in equity cases upon the preliminary question of liability where complainant prays for an account and defendant denies liability.

Plaintiff and defendant are brothers, and for a number of years previous to August 30, 1901, defendant made investments for and attended to the financial affairs of plaintiff. On the date mentioned an account was agreed upon between them and an agreement signed wherein plaintiff acknowledged lie owed defendant a specified sum of money and defendant acknowledged lie held, as security for such indebtedness, shares of stock of the United States Lumber Company, and also other shares for account of plaintiff and subject to his order. The bill avers, and the court below found, that, subsequent to the date of the writing above referred to, defendant bought and-sold for plaintiff, at various times, shares of stock of other corporations pursuant to verbal agreement whereby defendant continued to attend to the purchase and sale of stocks for plaintiff. The answer admits there were stock transactions between the two but denies indebtedness to his brother and avers plaintiff is indebted to him “on the various transactions which I have had with him” in a sum exceeding |50,000. Defendant offered no evidence at the hearing and the testimony on behalf of plaintiff to the effect that defendant was acting as trustee for him in various transactions was ample to sustain the findings and conclusions of the court below that defendant became a trustee for his brother and was liable to account as such. ■>

Consideration of the extent or details of the account, or whether any amount is, in fact, due plaintiff is unnecessary at this time. The sole question before us under the act is that of liability to account: Beatty v. Safe Deposit & Title Guaranty Co., 226 Pa. 430. The agreement the court found existed between the parties, though oral, created a valid and enforceable trust (Dickey v. Stevenson, 198 Pa. 447; Washington’s Est., 220 Pa. 204) which was a continuing one and, consequently, not barred by the statute of limitations (Barton v. Dickens, 48 Pa.518), in absence of a termination by settlement or repudiation by the trustee: Marshall’s Est., 138 Pa. 285; Smith v. Smith, 38 Pa. Superior Ct. 251. The transactions between the parties were an open running account, the last item consisting of a payment by defendant March 1,1911, which was within the limitation period before filing the bill.

Defendant moved for continuance of the case alleging he was physically unable to appear and depositions were taken in support of the motion. Examination of the depositions shows that although defendant was absent in Florida by advice of his physician on account of ill health, his condition was not such as would indicate a serious risk in attending the hearing. An application for continuance is an appeal to the discretion of the court below and, under the circumstances developed in this case, it does not appear the discretion was abused: Hall v. Vanderpool, 156 Pa. 152; Gillman v. Media, Etc., Railway Co., 224 Pa. 267; Commonwealth v. Fencez, 226 Pa. 114.

Defendant also complains of the action of the court below in adopting the requests for findings of facts and conclusions of law submitted by plaintiff. There is no merit in this complaint as Equity Rule 62 specifically authorizes the judge to adopt or affirm requests submitted by the parties or state his findings and conclusions in his own language. This practice was approved in Dickey v. Stevenson, supra.

The decree of the court below is affirmed without prejudice, however, to the rights of defendant to set up such defense he may have either as to the stocks to be included in the account or their amounts and values.