Hood v Robinson et al.

Partition-Master's

Report-Exceptions-Conclusions-Evidence-Fees.

A master's conclusion in his report in a partition proceeding as to a specific debt was overruled where the conclusion was not supported by the evidence. Conclusions predicated of inferences, contradictory to or insupported by, facts, are of little value and exception to report sustained.

It is within the discretion of the court as to the amount of a master's fees to be allowed in a partition proceeding. An exception to a fee of $500.00 was sustained and the sum fixed at $250.00.

Sitting in Equity. Master's Sale in Partition. Exceptions to Distribution. No. 236 January Term, 1916. C. P. Allegheny County.

S. H. Huselton, for plaintiff.

E. L. Mattern, C. C. Lee, Ward Bonsall, John W. Dunkle, for defendants.

CARPENTER, J., February 25, 1920.-The concrete question here presented arises over the distribution of proceeds of sale in partition and involves the validity of a clam for $6,000 and interest, which the Master refused to allow. The record is voluminous and shows protracted litigation prior to the sale. Extended recitals and discussion would tend to obscure rather than to illumine the controverted point.

The dispute arises as follows: Evidence of an agreement bearing date March 6, 1895, between James W. Ballantine, party of the first part, Sarah E. Ballantine, party of the second part, and B. S. Fahenstock et al., parties of the third part, was offered, in which it was recited that the parties had agreed to settle and compromise their disputes and differences; and for the purpose of settling all actions and removing all questions of doubt respecting titles, had agreed that certain lands be sold, as far as necessary, to satisfy certain specified debts, and that lands unsold should be divided. It was, inter alia, agreed that out of the proceeds of sale the sum of $6,000, with interest from the date of the agreement, should be paid to James W. Ballantine, and the sum of $2,000, with interest, should be paid to the parties of the third part.

The existence and validity of this agreement appears to have been established to the satisfaction of the Master. The original agreement could not be found, but alleged copies were produced and oral evidence that the agreement had been made was offered. The copies produced did not agree, but, as stated, the Master deemed the proof sufficient, and in this finding of fact we concur.

In refusing to allow the claim, he says:

"The Master is clearly of the opinion that 'the debt or amount agreed to be paid to the party of the first part and the parties of the third part' has been fully paid and discharged."

The Master states his reasons for his conclusion that "the debt has been fully paid and discharged," which, in substance, are-first, that in January, 1906, James W. Ballantine and Sarah E. Ballantine conveyed part of the real estate to C. S. Shaner and divided the proceeds of sale;

Second, that William L. Coyle, executor of the will of Philena Ballantine, Anna B. Robinson, Agnes J. Sharp, and Sarah E. Ballantine, in February, 1909, conveyed part of the land and divided the proceeds;

Third, that in February, 1913, all the parties joined in a deed for part of the land and divided the proceeds. George B. Hood, son of Sarah E. Ballantine, receiving one-half and the other half being divided among the other parties.

The Master then gives additional reasons for his conclusion, which are set out at length in his report, and need not be repeated here, and calls attention to the fact that John W. Dunkle, as administrator of the Estate of Philena Ballantine in 1916, presented a claim for $6,000 and interest which

Hood v Robinson et al.

was disallowed by the Master, and says this action was sustained by the Court. An inspection of the opinion by Shafer, P. J., discloses the reason for dismissing the exceptions, and that the right of the Estate of James W. Ballantine to said sum of $6,000, was not decided.

The Master's final report shows that on January 7, 1919, the case was referred back to him for the purpose of enabling the administratrix of the Estate of James W. Ballantine to present the claim here involved.

Having given due consideration to the Master's findings, his reasons in support thereof, and the evidence on which same are based, we are unable to concur in his conclusion that the claim should be disallowed.

The reasons assigned by the Master are but inferences predicated of certain facts. His first inference is that because James W. Ballantine and Sarah E. Ballantine conveyed part of the real estate in January, 1906, and divided the proceeds of sale "the debt had been fully paid and discharged." The pleadings show that in June, 1904, James W. Ballantine made his will, in which he bequeathed to his wife, Philena, all personal property owned by him at the time of his death, especially a claim of $6,000, more or less, due from his sister, Sarah Ballantine, if same was not paid at his death. He refers to this claim as a lien against property in Pittsburgh. Testator died January 5, 1907. There is no proof of payment by Sarah E. to James W., prior to June, 1904, nor of payment between June, 1904, and January, 1907; and no proof of payment by Sarah to Philena, widow, and executrix of the will of James W. Philena died May 2, 1907, a few days less than four months after the death of her husband.

Not only is there a total absence of evidence of payment, but on the contrary the evidence of Bruce Millard, formerly in active practise at the Bar, shows that the $6,000 remained unpaid at the death of James W. Ballantine and that his sister, Sarah, complained that he had failed to release his claim. The claim was discussed as late as August, 1907, shortly before a bill for partition was filed at No. 306 October Term, 1907. This effectually negatives the Master's first inference that the claim was discharged prior to the sale in January, 1906. That Sarah received one-half of the proceeds of a sale made in February, 1909, does not furnish a strongly persuasive argument in support of the inference that the claim had been settled and discharged, and its effect is neutralized by the fact that she complained because her brother had not released his claim and was insistent that she be relieved from payment of interest.

But even if sustainable on the ground stated by the Master, his inference is overcome by evidence showing why the proceeds of sales were divided. When the third sale was made, in February, 1913, and the proceeds divided in June, Mr. Dunkle asked for payment on account and was informed by the agent that the parties had an understanding that payment of the $6,000 should be postponed until the corner property was sold. It is the proceeds of sale of the corner property which are presently involved. When this bill was filed in 1915, by George B. Hood, he claimed an "equal one-half part or share" * * "subject, however, to any claim that it may be liable, as evidenced by Articles of Agreement, a copy of which is attached hereto, marked Exhibit 3."

*

This fact is mentioned by the Master in an earlier report without comment.

The Master's failure to mention the testimony of Millard, and his casual reference to Dunkle's, justifies the inference that he failed to give it due consideration, and leaves no doubt that his "inferences" were deemed of greater evidential value than the facts. For he fails to find that the existence of the indebtedness was admitted as late as 1907, though the fact was proven by competent evidence; nor is there any finding respecting the alleged

Hood v Robinson et al.

agreement or understanding that payment of the claim in controversy was postponed until the corner property was sold.

Conclusions predicated of inferences, contradictory to, or unsupported by, facts, are of little value. The fact that the agreement pleaded was executed and the fact that the $6,000 therein specified was to be paid to James W. Ballantine out of moneys to be realized from the sale of lands held in common by the parties to the agreement, is not controverted. That this sum was unpaid at his death the evidence leaves no doubt. That there is no proof of payment since, is admitted.

In our opinion, the Master's "inferences" are unwarranted and his "conclusions" erroneous, being in conflict with the controlling facts exhibited by the evidence.

Exception is taken to the Master's charge of $500 for services in hearing testimony and preparing his second report. We have given this question careful consideration and consulted several of our Judges of wider experience in fixing fees, and are of opinion that $250 is adequate compensation. The exceptions are sustained in so far as the same refer to the Master's refusal to allow the claim of $6,000 and interest, and to the Master's fee to the extent indicated.

If counsel can agree upon a decree of distribution in conformity with the foregoing opinion-said decree to be without prejudice to the right of appeal the cause will not be recommitted to the Master; otherwise such further order will be made as the Court may deem necessary.

New Trial

-Reasons

Discovered Evidence

Morrow v Redding

Trial- -Objectional Remarks by Counsel-After-
Rebuttal.

A new trial was refused where the admission of particular testimony was not objected to at the trial, nor was the Court requested to withdraw a juror and continue the case when, as it is alleged by defendant's counsel, the attorney for plaintiff used improper remarks in his argument to the jury. It should have been objected to and noted upon the record.

It is no ground for a new trial where the alleged after-discovered evidence was clearly and absolutely susceptible of presentation at the trial, being well known to defendant long before the trial took place, as is also evidence merely incidental and not material to the issue.

In an action for negligence, the right of the plaintiff to show in rebuttal part of the testimony that should have been shown in his case in chief, is a clearly competent mode of procedure, and when not objected to at the time, is no ground for a new trial.

Motion for Judgment N. O. V. and Motion for a New Trial. No. 1605 January Term, 1917. C. P. Allegheny County.

R. P. & M. R. Marshall, for plaintiff.

E. A. Sefler, Edward T. Duffy and John M. Henry, for defendant.

Before EVANS, HAYMAKER and COHEN, JJ.

COHEN, J., March 18, 1920.-At the hearing of this case the motion for judgment non obstante veredicto was not pressed or argued by counsel for defendant. He confined his remarks solely to the motion for a new trial. The motion for judgment n. o. v. could not have been granted, however, as binding instructions could not have been given under the testimony, which was conflicting as to the several elements presented to establish and dispute

Morrow v Redding.

the alleged negligence. The reasons for a new trial were that the verdict was against the law; that it was excessive; and that the Court erred in not affirming defendant's first, third, fourth, fifth, and sixth points, which were virtually abandoned at the argument and which were as follows:

"1st. For binding instructions.

3rd. That the plaintiffs have offered no competent proof that the death of Edward Morrow was caused by said accident.

4th. That there was no evidence that Philip Redding was the agent of the defendant or that he was driving the car in the furtherance of defendant's business or pleasure at the time of the accident.

5th. There is no evidence that the negligence of the defendant or his agent was the proximate cause of the death of Edward Morrow.

6th. There is no evidence that the death of Edward Morrow was caused by the accident complained of in this case."

No reason was filed for a new trial as to the admission of testimony of defendant by way of rebuttal or as to the cross examination of the defendant pertaining to defendant's authority to his son to use the automobile in this particular case, although this last matter is largely discussed in the brief filed by one of the defendant's attorneys who was not present at the trial and did not participate therein. The admission of that particular testimony was not objected to at the trial, nor was the Court requested to withdraw a juror and continue the case when, as it is alleged by defendant's counsel, the attorney for plaintiff used improper remarks in his argument to the jury. It should have been objected to and noted upon the record. Indian v D. L. & W. R. R. Co., 262 Pa., 118. The alleged after-discovered evidence denying that defendant admitted that he had authorized his son to use the machine in question as testified to by plaintiff was clearly and absolutely susceptible of presentation at the trial, being well known to defendant long before the trial took place, as the evidence and the affidavit filed in support thereof clearly disclose.

That part of the testimony taken as to the after-discovered evidence relating to Peter Donohue and E. J. Brogan's testimony to the effect that they did not assist in putting the deceased into the automobile at the time of the accident cannot avail as after-discovered evidence; and if it were, it refers simply to an incident of unimportant character in its relation to the whole case. The right of the plaintiff to show in rebuttal part of the testimony that should have been shown in his case in chief, as stated above, was not objected to, at the time, and is a clearly competent mode of procedure. Aland v Pyle, 263 Pa., 257.

We are of opinion, that the verdict was not contrary to law nor to the evidence submitted; nor can we conscientiously assert, after a thorough investigation of the history of the case, that the verdict rendered was in any way excessive. For these reasons the two motions are hereby refused.

Assumpsit
Inter Se.

Laughner et al., Etc., v Wally.

Co-Tenants-Oil and Gas Operation-Partnership-Liability

One co-tenant is liable in assumpsit to his co-tenants, all being engaged in a common enterprise of developing an oil lease, to recover certain materials appropriated by him and belonging to all the co-tenants, where a partnership did not arise either by implication or agreement.

Where a number of persons associate themselves together to drill and operate on oil or gas territory, all are co-tenants unless this relation is changed into a partnership either by implication or agreement. The law will not create that relation for them as the consequence of a course of conduct and dealing naturally referable to a relation existing between them, which made such a course of conduct to their common advantage.

Motion for Judgment N. O. V. No. 151 April Term, 1918. C. P. Allegheny County.

William T. Tredway, for plaintiff.

Calvert, Thompson & Wilson, for defendant.

Before SWEARINGEN, CARPENTER and KLINE, JJ.

KLINE, J., March 27, 1920.-This is an action in assumpsit brought by the plaintiffs. Elmer E. Laughner, P. L. Wally and Juliano Lordo, doing business as Laughner, Wally & Company, against the defendant, P. L. Wally, one of the members of the association, to recover for certain materials appropriated by him belonging to the plaintiffs.

The verdict of the jury was for the plaintiffs in amount of the value of the materials appropriated with interest from the time of appropriation.

At the trial of the cause, a point of law was reserved, "Whether or not the association of the parties, for the purpose of drilling for oil and gas created a partnership," and the defendant now moves the Court for judgment non obstante veredicto.

It appears from the testimony that the plaintiffs associated themselves for the purpose of drilling and operating for oil and gas in the vicinity of Walker's Mills, Allegheny County, Pa. That Mr. Laughner and Mr. Wally purchased a lease of about seven acres, each having one-half interest in the lease. They proceeded to drill a well and obtained production, and being elated over their success, they proceeded to drill another well, which came in with slight or no production. Subsequently they pulled well No. 2, and the materials taken therefrom were appropriated by Mr. Wally, the defendant, and the appropriation of the same is the foundation of this suit. In the mean time, however, Mr. Wally, the defendant, disposed of part of his interest to another.

It further appears that all moneys received from the product of said well, the proceeds of all materials sold, were turned into the treasury of the association and after the expenses of the operation were paid, there was a division of the profits among the members of the association in proportion to their respective interests.

The sole question in this case, and which is a question of law, is whether or not the association of the parties for the purpose of drilling for oil and gas, creates a partnership.

No contract of partnership, written or oral, is shown, and it must be remembered that this question is not raised between third persons and the tenants in common, but inter se. When the first well was put down they each contributed to the cost of the operating of the well and divided the profits. The new well was on the same lease, and when the new well was proposed they were simply tenants in common of the seven acres covered by the lease and of the well and machinery thereon. It was to the interest