228 Pa. 523 | Pa. | 1910
Opinion by
Of the various claims made by appellants in this case, the first is that the accountants should be surcharged for failure to secure for the estate of Andrew M. Moore, deceased, the value of decedent’s share of the good will of the business of Moore & Sinnott, and the value of the trade-marks, leases, etc., owned by the firm, with the exception of the lease of the Gibsonton mills, which latter by its terms inured to the benefit of the surviving lessee. The determination of this question depends upon the proper construction of the partnership agreement which was entered into between the partners. The
By the fourth paragraph of the agreement, which was not amended, it was provided that upon the death of either partner the survivor should “cause the stock on hand or merchandise assets of the firm to be appraised, by two disinterested parties,” and duplicates of the appraisement to be furnished the surviving partner and the representatives of the deceased partner. This was the only provision as to an appraisement. Immediately after the death of Andrew M. Moore, the surviving partner (Sinnott) notified the executors of his intention to take the business under the terms of the partnership articles.
On February 14, 1898, the executors wrote the counsel for the three sons of testator that Sinnott had requested the estate to name one of the appraisers, and requested suggestions as to the person to be named. On February 17, 1898, the executors notified the same counsel that two persons, naming them, had been selected as appraisers. An appraisement was made by the appraisers thus mutually selected, and subsequently the books were examined by expert accountants employed by both parties,
The first account of the executors was filed in 1899. At the audit two of the sons were represented by counsel. Both in the testimony and the adjudication, the appraisement and settlement with Sinnott were referred to, but the auditing judge excluded the matter entirely from his adjudication, striking out the charge of $29,049.93, for the net value of decedent’s interest in the firm, and leaving it for a later accounting. No request was made to surcharge the executors for the value of the good will, trade-marks, etc., or for any sums based on alleged errors in the account which was the basis of the settlement. On December 21, 1899, in response to a letter from Mr. Huey, who represented George M. Moore, counsel for the executors by letter notified him that Sinnott had “purchased” Moore’s interest in the business at the appraised value of $29,049.93, and was paying interest on that sum, and on November 10, 1899, the executors furnished to Messrs. Budd and Ziegler, counsel for Albert H. Moore, a complete copy of the appraisement and statement, showing how the balance of $29,049.93, was reached.
A second account was filed by the executors in 1900. At the audit before President Judge Hanna, all three sons were represented by counsel. The entire subject of the appraisement and the settlement was gone over in the testimony at this audit; Sinnott himself, whó was
The auditing judge refused to surcharge as requested, afid exceptions to his adjudication were dismissed by the court in banc. On appeal by George M. Moore to this court, the following assignment of error was filed: “The court erred in dismissing the third exception to the adjudication, which was as follows: ‘III. Because the learned auditing judge did not surcharge the executors with the difference between the value of the decedent’s estate in the whisky business of the firm of Moore & Sinnott, as shown by the account stated of Mr. Heins, Appendix, p. 21, viz., $376,581, and the amount the executors agreed to accept therefor, $29,049.93, to wit, $347,531, it appearing from the evidence that the debts of Moore & Sinnott so charged off against the decedent’s interest in obtaining the said valuation of the decedent’s interest, have not been actually paid by the surviving partners, and remain as outstanding debts of the decedent with his individual collateral pledged therefor.’ ” This showed full knowledge of the situation.
As the auditing judge says, the law of this case is
The construction placed upon the articles of partnership, when the appraisement was made, and the business was taken over by Mr. Sinnott in 1898, was not antagonistic to anything expressed in the agreement, and it seems to us to have been in harmony with the purpose and intent thereof; and especially in view of its acceptance and long acquiescence therein by the parties interested, the construction adopted is entitled to great weight. The personal representatives of the deceased partner were familiar with the circumstances of the partnership, and they agreed with the surviving partner that a proper construction of the partnership agreement carried the right to continue the business, and to enjoy the good will, trade-marks, etc., without special compensation therefor. This practical construction placed upon
In view of the fact that there was an article of agreement in this case providing for the taking over of the business by the surviving partner, and specifying what should be appraised as assets of the firm, and in view of the further fact that the appraisement was made, in accordance with a construction of the agreement accepted and acquiesced in for so long a time by all parties in interest, we do not feel called upon to determine to what extent the good will of the business might have been valuable as an asset to be accounted for, in the absence of a partnership agreement, under which it was assumed that the good will passed under the purchase of the tangible assets.
Under the seventh assignment of error, counsel for ap
The question raised by the fifteenth assignment of error, as to a slight error in calculating commissions, has, as we have been informed,- been corrected. So also with regard to the amount of $5,008.65, claimed as a surcharge under the nineteenth assignment. That we understand from the statement in appellee’s paper-book, has been paid by the estate of Sinnott to the Moore estate.
The claim of- appellants with regard to the reduction of the allowance for counsel fees has been discussed and disposed of, in the opinion just handed down in the appeal of the executors from the decree of the court below in this case. In the present appeal, the assignments of error are all dismissed, and in so far as the questions raised by them are concerned, the decree of the orphans’ court is affirmed.