200 Pa. 270 | Pa. | 1901
Opinion by
It is averred in the bill filed that in ITebruary, 1896, the plaintiff and defendant, being then the owners of a part of the stock of the Ohio Valley Gas Company, entered into a parol agreement to purchase the remainder of the stock and to divide equally the profits which should arise from the management of the company or the sale of its stock; that in pursuance of this agreement they united their credit, efforts and influence, purchased the stock, and managed the company until October, 1899, when they sold the same at a net profit of $255,000; that with a part of the profits of this sale they purchased a large tract of land in West Virginia, built a pottery, paid the subscriptions on the stock of a corporation which they formed, known as the Taylor, Lee & Smith Company, and purchased the stock and property of the Knowles, Taylor & Anderson Company, an Ohio corporation engaged in manufacturing sewer pipe, which stock they afterwards sold for $175,000; that all of these purchases and sales were made in the defendant’s name, and that he holds the title to all of the joint property unsold except the stock of the Taylor, Lee, & Smith Company ; that the defendant is investing the joint property and assets in other enterprises without the consent of the plaintiff and refuses to
The answer contains a distinct and complete denial of all the averments of partnership, joint purchase or interest, and avers that all the stocks, lands, etc., referred to in the bill were bought by the defendant with his own funds or upon his own credit, and for his own account; that there was never any agreement, arrangement, or understanding of any nature or kind with the plaintiff that he was to receive any compensation for his services in connection with these transactions, or any profits arising therefrom ; that the only services he rendered were in matters of detail after the negotiations were completed, and that these were rendered voluntarily by him in the expectation that his position as an officer of some of the companies connected with the property would be assured if they became vested in the defendant. The answer is fully responsive, the denial of every material allegation being specific and absolute.
In equity a responsive answer is conclusive in favor of the defendant unless it is overcome by the testimony of two credible witnesses, or of one witness and such corroborating facts and circumstances as are equal to the testimony of another witness. The plaintiff was the only witness who testified to the making of an agreement by which he acquired any interest in the properties purchased, and all of his testimony in relation thereto was denied by the defendant. In order therefore to entitle him to a decree for an account it was necessary, first that his testimony should clearly show that a partnership agreement had been made as alleged in the bill, and secondly, that his testimony should be corroborated by facts or circumstances established by mdisputable evidence. The appellant’s contention is that as to both of these essentials there was an entire failure.
The turning point of the case was the relation of the parties to each other in the purchase of the stock of the Ohio Valley Gas Company. As to this the allegation is that there was a partnership agreement to unite their credit, efforts and influence and to divide equally the profits of management and sale. Upon tMs allegation the whole case rests. In considering the plain
The second conversation between the parties took place in a sleeping car on their way home from Philadelphia. The plaintiff’s testimony concerning it is as follows: “ Mr. Smith said to me : ‘Now we have arranged to buy the stock of the Philadelphia people I want you to stay with me and the company and we will operate the company or put it in shape to sell it, and if we can make money by operating the company, or by getting it in shape to sell it, and do sell it, I want you to have a half interest in it.’ And I said to Mr. Smith: ‘ M.y experience in the gas business has been such that I know we are going to have a large contract on our hands; I know there is going to be trouble getting money to put that thing where it should be.’ He said there would be no trouble about that, then, as far as he was concerned he would agree to look after the financial part. .... It was further agreed between us that since he had arranged to put this stock as collateral with the Mellon’s for the purchase money, that since he had arranged to borrow the money himself and not for him and I, and since he was going to take the responsibility of financing, it was only right and proper that the title should remain with him; that was perfectly satisfactory to me, and just as we were going to bed that night I said to Mr. Smith: ‘ If you ever forget this agreement after all I have done for you, you will be the most ungrateful man that ever wore shoe leather.’ Mr. Smith said he would never forget me.”
If any agreement was made it is to be found in the second
These are the facts connected with the making of the agreement as'they appear in the plaintiff’s testimony. They do not in our judgment sustain his bill. In connection with other facts to which it is needless to refer they might warrant the conclusion that an option was given him to join in the venture or that there was a mutual understanding that he should be liberally rewarded if the enterprise was successful. They do not however show that he had an interest, and without this his suit fails.
This conclusion makes it unnecessary to consider the question of corrroboration. If the plaintiff failed to establish the main point, there was nothing to corroborate. But on this subject we may say that but few of the facts relied on for corroboration were established by independent and uncontradicted testimony ; and that the few that were so established are quite as consistent with the view that the plaintiff expected a gratuity and the defendant intended to reward him, as that he had any right in the matter; and that their effect as evidence in his favor is seriously impaired, if not wholly destroyed by his deliberate declaration under oath in another proceeding in court in 1898 that he had no interest real or nominal in the Ohio Valley Gas Company and that he did not participate in its profits and never had participated in them.
The decree of February 20, 1901, appointing a receiver and ordering an accounting is reversed and set aside, and it is now ordered that the bill be dismissed at the cost of the appellee.