Shelmire's Appeal

70 Pa. 281 | Pa. | 1872

The opinion of the court was delivered, January 16th 1872, by

Sharswood, J.

That there was a sheriff’s sale of the interest of L. Rex Peters in the copartnership at one time existing between him and his brother Jacob, we think altogether incontrovertible, and there is sufficient evidence in the answer supported by other testimony, that Jacob was the purchaser at that sale.

We can discover no inherent vice in the sale itself, which could render it ineffectual to pass the title, and no reason to hold that the creditors of L. Rex Peters could have successfully attacked it for fraud. But we think that there was ample evidence to support the conclusion that it was abandoned by Jacob, and that the partnership between him and his brother soon after, if not immediately, returned to and flowed in its former channel. If this were so, it would not be necessary for the creditors of L. Rex Peters to break down the sheriff’s sale, in order to reach and levy upon his interest. It is a confirmation of this, that ‡† evidence of the sale was preserved. The executions were without any endorsement of levy — they were never returned — no bill of sale was executed by the sheriff. All the writing that appears is an entry by the sheriff upon his cash-book, of the receipt of a sum sufficient to pay the costs, without stating from whom. This is followed by the undoubted fact that no change was made in the books of the firm, but on the contrary, sums paid to L. Rex Peters out of the proceeds of the business, were charged against him as before in his individual account on those books. It is true that his name was painted out from some of the coaches, and he declared on several occasions that he had nothing to do with the business. Declararations ought not to avail much against facts. There are declararations by Jacob Peters to the contrary. But the most significant and persuasive evidence upon this point is, that after the death of his brother, Jacob continued to make payments to his widow from the proceeds of the business and charge them in the books. Upon the bare question, of whether there shall be a decree to account, we have nothing to do with the further question, whether the partnership was continued after the death of L. Rex Peters. Long after that event, Jacob acknowledged his liability to account to his brother’s estate, and his willingness to pay whatever might be found to be justly due. He agreed to a reference, and delivered over the books of the concern to the referees for that purpose. He agreed to a second reference, after the first had fallen through. L. Rex Peters had died in 1857, and by the references the matter was continued open until November 17th 1865. During all this period Jacob was, either expressly or impliedly, declaring his entire willingness to account, and it was not until he was dissatisfied with the result of the last reference, and revoked the authority of the arbitrators, that he said “ that, if suit was brought, he believed he would contend that the sheriff’s sale vested the whole title of the partnership in him.” But a pending reference to ascertain the balance of account between partners is a continuing admission of a liability to account, of the most unequivocal kind, sufficient to suspend the running of the statute, and to preclude any denial of partnership. After a party has been delayed for six years by such a reference or references, it would be highly inequitable to allow his opponent to turn round and either deny all liability to account, or that he is barred of his remedy by lapse of time.

Decree reversed, and now it is ordered that the defendant, Jacob Peters, do, as surviving partner, account to the plaintiff, the administratrix of L. Rex Peters,' and that it be referred to E. Coppee Mitchell, Esq., as master, to state and report such account, and the balance which may appear thereon.