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3 Lancaster Bar 1 (1871-1872)

handle is hein.statereports/lancb0003 and id is 1 raw text is: Three Dollars a Year in advance. WILLIAM B. WILEY PUBLISHER. Ten Cents per -Number. W * VOLUME 3. JUNE 3, 1871. gVat# PUBLISHED EVERY SATURDAY. SUPREME COURT OF PENNA. KNOX vs. SPRECTHER. 1. When partners on a settlement mee a division of assets, consisting or choses im an action, as notes or other evidences of ilcobtdness belonging to the firm, unless it is otherwise expressly agreed, they remain liable. respectively, for whittoer los may subsequently appear from the insolvency of the debtors or other causes not attribtaole to negh- gence in either. 2. Nothiin short of an agreement mutually releasing each other from such liabillty will pioduce that efRICc t. 3. The division, prim facie, is for convenience of col- lection, only throwing upon the partner who re- ceives the assets the obligation of good faith and reasonlable dieenco. 4. Kelly vs. Kauffman, 6 Harris 331, affirmed. Error to the Court of Common Pleas of Lan- cster coniv. attested that it was understood that the settle- accepted by Sprecher as so much cash ? and if ment was final and absolute, and that Sprecher not, did he act fairly and use reasonable dili- took the note as so much cash. Sprecher de- gence in pursuing the claim upon it ? But nied this, and insisted that when they settled these were questions rightly submitted to the that of the money that was lost each was to jury, and, we think, with proper instruction lose one-half. This certainly presented a square upon the law. issue of fact for the decision of the jury. When Judgment affirmed. partners on a settlement make a division of assets, consisting of choses in action. as notes 01PREHE COURT OF PENNA. or other evidences of indebtedness belongin to the firm, unless it is otherwise agreed, they DSTATE OF MICTAEL BARD, Deceased.-BRU- remain liable respectively for whatever loss BAKER'S APPEAL. may subsequently appear from the insolvency Appeal from the decree of the Orphans' Court of the debtors, or other cause not attributable of Laocaster county. to negligence in either. The division primia Yiexnor for appellant. facie is for the convenience of collection, only Bu3oavN and WILsoN for appellees. throwing upon the partner wh receives the Opilion of SHAnswoon, J., delivered May assets the obligation of good faith and personal 1, 1 . diligence. If Sprecher was to be bolieved, The learned Court below put a very reason- Knox recognized his continuing interest in the able and proper construction upon the decree note after the settlement; for after he had of this Court in Sandoe's appeal, MI. D., May, procured the note to be discounted, he con- 18I0. In directing the Orphans' Court to raise sulted Knox as to paying it. He testified out of William's farm whatever sum might be Then I said, supposing I go and pay the necessary to produce an equality of distribu- note, and you and ine will m ke it some other tion between the two sons, after appropriating tine. And he agreed to that he thought it to Jefferson the proceeds of the brick house would be better, and I paid the note. Knox, and lot and the balance of the personal pro- ELLMAKER for plaintif in error. it is true, enied too statement; but after such perty on hand, it certamly was not intended YUNDT and 1. F. ESHLEAN for defendant eildonce it can hardly be pretended that it was to preclude the application of any other fund .eror, d not a question for the jury whether Sprecher coning to Willian under the will to that ob- Goinion delivcred by SIAR WOOD, J., -May had acted fairly and with reasonable diligence. ject. The tavern and store property devised 1, 1871. The case of Kelly vs. Kauffnmn, 6 Harris 351, by the tenth section of the will, having been was in all circumstanees a case very much re- sold and converted into money under the act No point was presented to the lea rued Judge sembling this. The principles there enunciated of April 18, 1033, Famph. L. 503, it becomes below in regard to the form of action: nor, in- sustain the instructions of the learned Judge necessary to inquire whether William has any deed, does it anywhere appear on the notes of below on the principal matter of contention present interest in these proceeds. The tenth evidence returned with the record, nor in thc here. That was a partnership between cattle section referred to directs that the executors copy of the charge filed, that such an objection drovers, who had made a settlement and divi- shall rent that property during the life-time of was made on the trial. The first assignment sion of assets, including a note to the firm the widow. and then proceeds : And at the of error is therefore not sustalned. The second which the maker afterwards failed to pay. It death of my wife, if it occurs after William is error is not assigned according to our rule upon was endorsed in the natne of the firm to one of of ace, and if it should be sooner than when the subject-Hule viii.. 0 Ilarris 578--and is the partners, who procured it to be discounted William is of aec, I give and devise the said hiercfor, to be held the same as none. The by a bank, but on failure of the debtor had tavern anti store property, with the appurten- remaining errors assned are to the charge of paid it himself to the bank. The contract of ances, unto my two sons, Jefferson and Wil- the Court, and to the answers to the points of partnership,'' said Lewis, J., is essentially liam, their heirs anti assigns, as tenants in the defen lit below. Thi- may all be consi an agrement to participate in the profts and common.' If, indeed, the rents and profits tiereela tog'tbc Th eteto a th e a are to indeed, rd toter The plair tiff and defendant l .A settleent of the accounts, and a are to be given to other parties before the pe- were drovers, and had been partners in the division of the partnership assets, does not dis- riod when the devise was to take effect in pos- purchase and sale of two lots of certain cattle charge the parties from their mutual obliga- session, and are not to be appropriated to Nhat and sheep. Sprecher paid for and took clarge tions to contribute the losses which may sub- appears to be the plain object of the testator- of the cattle, and Knox of the sheep. B hen, sequntly arise from circumstances not antici- to make his two sona, William and Jefferson, after the stock was all sold they can togehr paled at the time of settlement. Nothing about equal-th re N )u11 Le reason in the to makc a settlement and division o the pro- short of an agreement mutually r leasing each contention of the aichants. These rents fall fits, the note of a man naned ald unr-id c, other from su h liability will produce that into the reSI,ue, which is divided among all which oprecher had taken fo sheep sold. was effect.'' The judgment in that case wao re- the chihdren in equal shares, but only after left in his hantis. it turned out that Seldom- versed, becuse it was thought there was no all the foregoing bequests are carried out. ridge was either insolvent at the time or proved evidence of such an agreement, which ought One of these was that a farim should be pur. to be so subsequently. It is to recover fromll to have gone to the jury. It can surely manke chased for Jefferson about equal in value to Knex contribution to this loss that Sprecher no difference that the note here was originally the mansion place devised to William. These instituted this action of assumpsit. Both lar- drawn in favor of the partner to whom it was rents which are thus agpropriated could not ties were examined as witnesces, and dillred 1anied over, or that lie procured it to be dis- accomplish the purpose of anl immediate pur- very materially in their account of the agree- counted and subsequently renowed. There chase. it follows that the trust of the execu- ment and undertanding betw een themii about nay have been circumstance. bearing upon tors. Erin no long-r any legitimate purpose the note at the time of the settiment. Kniox the principal questions of' fat--was file nte to see, was at an entd when the land was con U, A- J ublieaton Omfee, o. 16 Norst Duke Street, Lancaster, Pa. NUMBER 1, 011 F

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