248 Pa. 359 | Pa. | 1915
Opinion by
This is a bill in equity brought by plaintiffs, as executors, against defendants, who are stock and bond brokers, for discovery and an accounting for the value of certain shares of stock bought by them for and on account of the deceased. Defendants had been employed regularly for some time prior to decedent’s death, for the purpose of buying and selling for him various stocks, and the bill avers that the stocks, for which accounting is asked, had been pledged to defendants as collateral for any indebtedness of the deceased which might exist from time to time, and further that these stocks were subsequently sold by defendants at a loss, in violation of the terms of their pledge, and without proper authority from decedent on notice to him. The bill further asks that defendants be required to deliver to plaintiffs certain other securities belonging to decedent’s estate and still held by defendants, less any sum which may have been due them from decedent at the time of his death, and that defendants be also required to produce all their books, papers, etc., and make full discovery of all transactions with decedent, and to account to plaintiffs for the stock alleged to have been sold without authority, at the highest market price which they reached at any time subsequent to such sales. The answer avers that the estate is indebted to defendants in a sum stated, and that a full and correct account of all transactions had been given plaintiffs, a copy of which was attached by plaintiffs to their bill» It is also averred in the answer that all sales of stock pledged with defendants as collateral were made pursuant to oral instructions from deceased, and approved by him, and that he received full
At the trial defendants offered their books for examination and the court subsequently appointed an auditor to go over them, who, after an examination of all books, papers and letters relating to the transaction, reported that he found the account correct and that there was no evidence of violation of the terms of the pledge by the defendants. The court entered a decree directing defendants to deliver to plaintiffs the stocks and bonds remaining in their hands, upon payment by plaintiffs of the amount found due defendants from the estate, and, on failure of plaintiffs to do so, within a certain time, that defendants might sell the securities and account to plaintiffs for any surplus. From the decree thus entered this appeal has been taken; the principal complaint of appellants being to the admission of defendants’ books to prove the correctness of the account, and the admission of proof of custom of stock brokers in making settlements for purchases made on the stock exchange.
The only evidence produced by plaintiffs at the trial was testimony as to conversations with defendants relating to the account and correspondence which passed between the parties. From this it appears that defendants gave plaintiffs the account set out in the bill, which the auditor subsequently found was correct. Plaintiffs offered no evidence before the auditor, but satisfied themselves with objecting to the competency of the books and papers produced by defendants.
There is apparent inconsistency in the attitude of plaintiffs in calling upon their opponent to make full discovery of all books and papers, containing information relating to a transaction, and then raising objection that such books and papers when produced, in compliance with such demand, are not competent evidence. However, granting that plaintiffs, if they found the books, when produced, contained matters which they had no reason to expect, were not bound to offer
A case in point is Burke’s App., 99 Pa. 350, where plaintiff asked for an accounting of securities held as collateral for a note, and the answer alleged that they were also held as collateral for part of their purchase price which defendant advanced. Complainant alone testified on his behalf, and contradicted the answer, and the bill was dismissed on the ground that this was insufficient to overcome the averments of the answer. Since the plaintiff in this case gave no evidence to disprove the averments of defendants’ answer such averments are conclusive. This makes it unnecessary to discuss the questions of evidence raised by the assignments of error. The above rule as to the evidence necessary to overcome a responsive answer has been abolished by Act of May 28', 1913, P. L. 358, as to actions begun after the passage of the act. As the bill in this case was filed prior to that act, it has no application. But even if it applies, we think plaintiffs’ evidence insufficient to meet the ordinary burden cast on them of making out their case by a preponderance of evidence.
As to the question of the right to enter judgment for the defendants for the amount found due them, such right has frequently been held to include proceedings in equity for account on the theory that when the plaintiff asks for a discovery and an accounting, he should be ready and willing to do full justice by paying to the defendant any sum which the evidence in the case might show is due him.
Another case in point is Kelley v. Shay, 206 Pa. 208, where the plaintiff brought a bill for a partnership accounting. It was admitted by the plaintiff that there was a certain amount due by the partnership to a third person, but this was denied by defendant and the creditor was then made a party defendant.to the bill and an examiner appointed, and it was found that certain securities were the property of the intervening creditor
This disposition of the case renders it unnecessary to discuss the other questions raised in the case.
Judgment affirmed.