158 Pa. 579 | Pa. | 1893
WILEY, TRUSTEE, V. BRUNDRED ET AL., APPELLANTS,
Opinion by
There is but a single question involved in the present contention, and that is whether the defendant is liable to account to the plaintiffs for the sum of $8,000 received from the Pennsylvania Railroad Company. The right of recovery is based upon the proposition that the defendant was guilty of a breach of the good faith which is required between partners. If this charge is true the plaintiffs have a right to recover. If it is not true they have no case. The effect of the assignment to the defendant, through the Union Refining Company, Limited, by all the individual members of the company, of “ all claims, rights of action and demands due to said” company by the paper executed on April 6, 1883, is not questioned. The defendant succeeded to every right and claim which was owned or possessed by the company at that time, and that contract was fully carried out by the parties on both sides, and it is not now in controversy. But it is claimed by the plaintiffs, and denied by the defendant, that the facts then existed which gave the plaintiffs the right to have an account, and a distribution of the money which the defendant subsequently obtained from the Pennsylvania Railroad Company.
If at the date of the assignment the defendant had a knowledge of a legal right to recover that money, which was superior to the knowledge possessed by the plaintiffs, and concealed that knowledge from his partners, and thereby obtained the assignment of all the claims, rights of action and demands of the firm to himself, he is responsible to the plaintiffs in this proceeding, unless the statute of limitations or the laches of the plaintiffs bars their action. The bill charges that the defendant had such knowledge of the claim against the railroad company, and that he concealed it from his partners, while the answer denies the charge in the most direct, emphatic and positive manner, and sets up a counter assertion that he had no other knowledge of the claim than his partners had, and that he concealed nothing from them in this respect, either before, or at the time of the transfer. The answer also alleges that the subject of a claim against the railroad company for excessive freight charges was frequently a matter of conversation among all the members of the firm, and that he, the defendant, was in favor of a legal pro
The question is, what was the situation of the parties relative to the subject at the time of the transaction. It is to be regretted that there has been no finding of the master respecting these most essential matters. The testimony of witnesses was quite considerable with reference to them, and yet that testimony has not been discussed, nor even referred to, in the master’s report.
All of the plaintiffs were examined in their own behalf, and yet not one of them proved, or attempted to prove, that the defendant had superior knowledge to them of the existence of the claim, or that he concealed anything from them. They all admitted, with some reluctance, and on cross-examination, that the subject of discriminations and excessive freight charges by the railroads was a matter of conversation and discussion between them.
Thus General Wiley testified: “We all discussed matters generally and had a voice in the management. . . . We all discussed the business of the company. I was the secretary and treasurer of the company. I participated in the meetings of the board. I think we were all officers of the company. . . . I had access to the books at all times and to the correspondence and other papers so far as they were in the proper books. . . . We met occasionally; came together informally, not daily, quite frequently. . . . The bookkeeper was there and the books. I think that the bank book was kept at the Hulings office, the check and bank book, part of the time at least, and that was the place we had the meetings. Q. Was it not a matter of frequent discussion between the members of your company, including yourself and Mr. Brundred, that the railroad companies that carried your product to market, or some of them, including the Pennsylvania Railroad Company, were discriminating against you and in favor of the Standard Oil Company
After saying that it had been commonly said that the railroad companies discriminated against the company and in favor of the Standard Oil Company, and that he did not remember discussions among the members of the company of claims for discrimination, he was asked: “ Q. And did not Mr. Chambers on at least one occasion express himself adversely to a resort to litigation on account of said claims, assigning as one among other reasons that the amounts which you would be entitled to recover, if any, would not be large enough to justify the expense and risk of failure ? A. I don’t remember any such proposition as that; it might have been talked of; I don’t recollect it.”
Mr. Huliugs, another of the plaintiffs, who took an assignment of all claims and debts due and payable to the company up to Oct. 1,1882, to be used in paying all debts and liabilities of the company, and who administered his trust to April 6, 1883, when the final assignment was made, was examined for the plaintiffs and gave testimony. He was asked: “ Q. While your company was shipping oil, state if it was not their belief that other companies were getting better rates in freight than you were ? A. I think there was some talk of that kind, but I have no definite recollection in regard to it. Q. State if Mr. Brundred didn’t state that he believed that there were rebates or better rates given to other parties who shipped refined oil west? A. I believe there was conversation of that kind. But I can’t recall anything definite. Q. Did he not also make the same allegation of refined oil shipped east ? A. I can give you nothing more definite than to say there was some conversation of that kind, but I recollect nothing definite. Can’t recall how often he spoke about it.”
Mr. Chambers, another of the plaintiffs, was examined for the plaintiffs. He was asked: “ Q. Was it not a subject of conversation among the members of the company, prior to the time you sold out, that the Pennsylvania Railroad Company and other railroad companies were discriminating against you and in favor of the Standard Oil Co. in the transportation of your product ? A. I don’t remember what was said among the members of the company about the discrimination of freights, for the reason that I had so many public discussions of the subject in general with different persons and in the Producers Association previous to that time. It would be hard to separate my conversations, if I had any, with the company, from the general discussions outside. The general discussion had been very common. Q. Do you remember that some time in 1882 Mr. Brundred proposed bringing suit against the Pennsylvania Railroad Company and that you opposed such suit, for the reason that it would be expensive and your company would not be able to cope with the railroad company? A. I don’t remember it, but I had a general idea that our claims would be too vague and indefinite to base a suit on. I don’t remember any conversation about it. I thought we knew too little about it.”
The foregoing is practically the whole of the testimony of
He was distinctly interrogated as to whether he had any knowledge of any facts, or evidence, to establish the claim before the transfer of April 6,188B, was made, and he said he had not. He was asked: “ Q. State whether at the timé of the
The foregoing is a specific and flat denial of the possession of any knowledge on the subject, either of the fact, or of any evidence to prove the fact, of adverse discrimination, up to and including the time of the transfer of April 6,1883. The plaintiffs were afterwards recalled and again examined in their own behalf, but they made no contradiction of the above testimony, they made no attempt to prove that the defendant had such knowledge, or knew of any testimony which he could get to support the claim, and their failure to submit such proof is practically conclusive that they were not able to do so. It was proved by the defendant and the bookkeeper, Berry, and admitted by the plaintiffs, that they had perfectly free access at all times to the books and papers of the partnership, and that they exercised an active intervention in the business. They must have known precisely what rates were charged, and therefore had the same knowledge on that subject that the defendant had. The defendant testified: “ The bank book, check book, draft book, minute book and stock book were kept at the city office. We kept letter books; letters written by and in behalf of the company were all copied; press copied. These letter books and correspondence of the company were kept at the office at the works. These books were accessible to the
Notwithstanding that General Wiley and Mr. Chambers were subsequently examined on their own behalf, neither of them uttered a word of denial of this most important testimony, absolutely fatal to their case if true. As a matter of course it must be taken as verity. There is not a reason why it should not be. The master pays no attention to it in his report, does not discuss it or any question growing out of it. General Wiley and Mr. Chambers had previously admitted, the one, that he did not believe that they were overcharged, and the other, that they did not have enough facts “to base a suit on.” So that they really corroborate the defendant in his testimony.
There wás far more testimony in support of the defendant’s contention than his own and the plaintiffs’ admissions. Thus Louis Morris, who was an inspector of oil trains during the time of the partnership, testified that his business required him to be frequently at the works of the company, that he knew Wiley and Chambers, that “ they came up to the works nearly every day. ... I saw Mr. Chambers very often there and also Mr. Wiley. They overlooked the business, the books and yard. They overlooked the works, but mainly in the office. I heard Mr. Brundred, Mr. Chambers and Mr. Wiley speaking of discrimination and charges of railway companies. They were complaining of overcharges/Of the railways. Q. State whether or not they referred to any road as discriminating against them, and, if so, what company ? A. The Pennsylvania Railroad mainly. I heard these conversations pretty often, but
Thus it appears from the testimony of this witness, who was entirely disinterested, that the subject of discriminating and excessive rates was a constant matter of discussion and complaint between the plaintiffs and defendant, and continued to be so until the time they sold out their refinery, which was in 1882, shortly before Hulings was appointed trustee to collect the debts and pay the liabilities. As the claim was one which resh ed entirely on suspicion and belief, and had no definite aspect, the partners were all upon the same footing in regard to it. And it was a live and pressing subject all the way to the last. There was no lack of community of knowledge and information among the partners. But the defendant believed in it as a thing that might be realized by proper exertion and action, and so urged upon his partners, but the plaintiffs had no faith in it and refused to take any action. The same witness gave further testimony of a similar kind. Amongst other things he said: “ There was a general talk right along about discrimination by
E. L. Ancker, another witness who was one of the bookkeepers for this company, said that “ Mr. Chambers and Mr. Wiley were there frequently, but Mr. Chambers more frequently than Mr. Wiley, Mr. Hulings occasionally. Wiley and Chambers, when there, came as members of the firm, and talked over the business matters. . . . The books were always open to any member of the firm. Mr. Chambers looked over the books quite frequently and Mr. Wiley whenever he came down there, which was not so often as Mr. Chambers. . . . Have seen them look over them all, the ledger, cash book and order book. In these conversations they would discuss the shipment of goods and discriminations in freights. In discussions of discriminations of railroads in freights Mr. Brundred was present. I never heard any discussion on this subject when Mr. Brundred was not there. I believe a month or two before they sold out these discussions were quite frequent, more so than before. In this matter the Pennsylvania Railroad was most mentioned. On this road we made about three fourths of our shipments. They said they thought they were being discriminated against, but didn’t know they were. They all held to this opinion.”
F. J. Baker, who was a tally man in the employment of this company, was asked: “ Q. State whether or not in 1881 and 1882 you heard discussions and talk in the office about railroad companies discriminating against the Union Refining Company in freights, giving others better rates? A. I have, I have heard Mr. Brundred, Mr. Chambers and Mr. Wiley talking about it. The conversation was that they thought they were discriminated against, by the railroads, but just how it was they could not tell. . . . The conversations were frequent, it was part of the business.”
The witness, J. B. Berry, testified to a similar effect.
In the face of all this testimony, none of which is discussed, or even referred to, by either the master or learned court below, it is useless to say that there was not a community of knowledge by all the partners upon this subject, or that there
It is a matter of surprise to us that the foregoing testimony made no impression upon the master or the court below. It proves most conclusively that this so-called “ claim ” had no existence as a “ claim ” at any time prior to the sale by the plaintiffs to the defendant of all their' interests in the partnership. It was brought into existence on August 28,1883, by a merely casual remark of one who was an entire stranger to this firm. But that remark was merely a suggestion, and an incentive, that excited the ingenuity and the astuteness of the defendant, prompting him as
This testimony also disproves most conclusively all idea of a reservation or withholding of knowledge by the defendant, from his partners, of facts necessary or available to establish the claim in a legal sense, because he never obtained that knowledge until months after the transfer. These considerations dispose of this case. The matters discussed in the master’s report and the opinion of the court below are foreign to the points upon which alone the case must be decided. Upon a most careful examination of the whole of the testimony we are clearly of opinion that there is no proof of any breach of partnership duty on the part of the defendant, and he is entitled to enjoy the fruits of his own exertions, and his own skill and ingenuity in obtaining the evidence upon which to build up the claim, and in his subsequent efforts to enforce it.
The decree of the court below is reversed, and the plaintiffs’ bill is dismissed at the cost of the plaintiffs.
WILEY, TRUSTEE, APPELLANT, V. BRUNDRED ET AL.
Opinion by
October 30, 1893:
For the reasons stated in the opinion in this case on the appeal of B. F. Brundred, the decree of the court below is reversed and the plaintiffs’ bill is dismissed at the cost of the plaintiffs.