79 Pa. Super. 272 | Pa. Super. Ct. | 1922
Opinion by
There are three items in dispute in this appeal. The first is a check dated December 9, 1902, payable to the City of Reading for $1,598. Mr. Runyeon testified that he knew nothing about it. Later it appeared that the check was for the payment of city taxes of Runyeon & Eaches, of George Runyeon individually, of his mother and of the Reading Cold Storage & Ice Company. Appellee testified that the sum paid for the tax of the Reading Cold Storage & Ice Company was returned to Runyeon & Eaches the same day, the amount being $.1,436 but unfortunately for the appellee, the check stub shows that the check from the Reading Cold Storage & Ice Com-
The second item is $2,200 which amount was withdrawn from the partnership assets March 20,1902. We all agree that there were sufficient facts shown to war
The third item arises out of the sale of the partnership real estate to the Reading Cold Storage & Ice Company. The property had been bought for $7,500 and according to the deed the sale was for $10,000. The difference represents profit that should be accounted for. The lower court, in the first place, surcharged Runyeon with this amount but subsequently changed his finding. We all think that he should have adhered to his original conclusion. The learned court, in his first opinion, stated that the lot appeared to have been bought for $7,000 but this was afterward changed by the plaintiff and his witnesses to $7,500 alleged to have been paid in cash but subsequently said to have been paid partly in stock in the Cold Storage Company. • Both statements as to facts are contradicted by the deed of conveyance itself which recited the consideration of $10,000 declared by the president of the cold storage company to have been put into the deed unthinkingly. The defendant’s daughter and son-in-law testified that in conversation with the president of the cold storage company, he stated that the consideration had been $10,000 in cash. The defendant testified to like effect. His testimony was contradicted by the plaintiff. The learned trial judge commented on the subject as follows: “Whatever profit there was on the sale, if any, there is no real proof of its receipt by the firm. There was a notice to the plaintiff from the defendant to produce the cold storage company’s books, papers, checks, etc., at the hearings before the referee, which notice, however, was not complied with, although the plaintiff was an officer of the cold storage company. It seems hardly credible that the cold storage company should have no books, records or memoranda which would throw light upon this question. The inference, therefore, from their nonproduction without explanation thereof would, in obedience to such cases as Steininger v. Hoch’s Ex’r, 42 Pa. 432; Wills v. Hardcastle, 19 Pa.
In this we think the court erred. When we examine the testimony of Eaches, we find that he explicitly stated that the shares of the cold storage company were given to him in payment of a note which represented money, which Runyeon had taken from the firm and this transaction had nothing to do with the sale of the real estate. Runyeon, himself, testified that the consideration of the real estate was paid by check. There is therefore nothing to discredit Eaches in the matter and the reasons given by the learned court for the change of his opinion are not tenable, we are therefore constrained to charge Runyeon with $2,500, the profit made on the real estate.
The decree of the court below is reversed as to items herein indicated and the record is remitted with directions to enter a decree charging the appellant with the item December 9, 1902, $1,436 and with $2,500 profit on sale of real estate. Appellee for costs.