Steinmeyer v. Siebert
42 A. 880
Pa.
1899
Check Treatment

Opinion by

Mr. Justice Fell,

. The contention that the plaintiff was not entitled to proceed in equity because he had an adequate remedy at law cannot be sustained. No contract in relation to the stock of the Ewalt Bridge Company is set up by the bill, but it is alleged therein that the defendant Siebert never had any right to or interest in the stock, and that he obtained the legal title thereto fraudulently and by the abuse of the relation of trust and confidence in which he stood to the real owner. The prayers of the bill were for discovery, an account and for transfer of the stock. The rule that jurisdiction in equity will not be entertained to decree a specific performance respecting goods, chattels, stocks and other things of a merely personal nature is limited to cases where a compensation in damages will furnish a complete remedy. Where the wrong is a betrayal of confidence equity will decree restitution, which may be enforced specifically against the wrongdoer. In McGowin v. Remington, 12 Pa. 56, a clerk was compelled to surrender drafts, maps, plans, etc., which he had withheld from his employer; in Abbott’s Executor v. Reeves, 49 Pa. 494, persons who had borrowed stocks and bonds from an executor were required to make restitution; in The Penn*475sylvania Co. v. Franklin Fire Ins. Co., 181 Pa. 40, the defendant was required to issue new certificates of stock to an owner whose certificates had been transferred under forged powers of attorney. In the case last cited it was said by our Brother Dkan that on the ground that an action at law would be an inadequate remedy “ equitable jurisdiction in suits by shareholders against the corporation has, on like prayers, been frequently sustained both in the English courts and our own.”

The established rule under the former practice was that the findings of a master on conflicting evidence, approved by the court, would not be reversed except on clear evidence of mistake: Stocker v. Hutter, 134 Pa. 19: Brotherton Bros. v. Reynolds, 164 Pa. 134. The same rule applies to the findings of fact of a judge sitting as a chancellor under the new equity rules; his findings are not conclusive upon us, but they will not be disturbed except for error which clearly appears. An apparent preponderance of testimony against them is not sufficient to lead to a reversal, if there is testimony which if believed will warrant them. The credibility of witnesses, and in a large degree the conclusions to be drawn from their testimony, which depends upon their character, intelligence and knowledge of the subject, can be determined much better by the judge who hears them than by us on appeal: Stockett v. Ryan, 176 Pa. 71; Com. v. Stevens, 178 Pa. 543; Hancock v. Melloy, 187 Pa. 371. We have referred to this subject, not because we have entertained any doubt as to the correctness of the conclusions reached in this case, but in order that it may be better understood by the profession, as many cases come here on appeal in which the real question, as in this, is one of fact to be determined by the consideration of conflicting evidence. The findings of fact of the learned judge are stated with clearness and precision, and we have no hesitation in accepting them as abundantly sustained by the testimony.

The decree is affirmed at the cost of the appellant.