The opinion of the court was delivered by: MCVICAR
This is an action by plaintiff, homer Overly, to enforce the provisions of an alleged express oral trust and for an accounting and other relief against Elmer Overly et al., defendants. The Court, after hearing and consideration thereof, makes the following findings of fact and conclusions of law:
1. Homer Overly is an individual, residing in the City of Clearwater, Pinellas County, Florida, and is a citizen of the State of Florida.
2. Elmer Overly is an individual residing in the Borough of Oakmont, County of Allegheny, Commonwealth of Pennsylvania. Alice R. Wehe and Herbert W. Wehe are individuals residing in Greensburg, Westmoreland County, Pennsylvania, all of whom were citizens of Pennsylvania.
3. The Overly Manufacturing Company is a corporation organized and existing under and in pursuance of the laws of the Commonwealth of Pennsylvania, having its principal place of business in Greensburg, Westmoreland County, Pennsylvania, and is a citizen of the Commonwealth of Pennsylvania.
4. The matter in controversy exceeds, exclusive of interest and costs, the sum of Three Thousand ($ 3,000) Dollars, and is between citizens of different states. Jurisdiction is authorized by the Act of Congress of March 3, 1875, c. 137, as amended, 28 U.S.C.A. § 41(1).
5. W. F. Overly & Sons, a Pennsylvania corporation, was engaged in the manufacture and sale of roofing, sheet metal doors and other sheet metal products from January, 1927 until August 28, 1935, having its principal place of business in Greensburg, Westmoreland County, Pennsylvania.
6. W. F. Overly (father of Homer Overly, plaintiff, Elmer Overly, defendant, Russell Overly and Irene Gowan) organized and generally managed and controlled the business of W. F. Overly & Sons.
8. Homer Overly, plaintiff, was employed by W. F. Overly & Sons both prior to and during the receivership; Elmer Overly, defendant, was never employed by W. F. Overly & Sons.
9. The receivership was conducted at a loss, the company going $ 136,000 further into debt during the receivership.
10. During the receivership, plaintiff and W. F. Overly attempted to devise plans for the reorganization of W. F. Overly & Sons, but were unable to develop any plan that was accepted by the creditors.
11. In the spring of 1935, at the instance of Elmer Overly, and at the immediate request of Grant Shipley (Consulting Engineer of Koppers Company) and of Charles W. Veatch (Vice President of the Union Trust Company of Pittsburgh), Herbert W. Wehe, defendant (an employee of the Koppers Company at Pittsburgh, Pennsylvania), went to Greensburg and examined into the affairs W. F. Overly & Sons, particularly with respect to its assets and future prospects.
12. To carry into effect Elmer's purpose of providing employment for his father, Elmer Overly entered into an oral arrangement with Herbert W. Wehe, another of the defendants, wherein Elmer Overly agreed to provide sufficient sums of money to purchase the personal assets and the real estate of W. F. Overly & Sons, Inc., a corporation; to form or cause to be formed a new corporation to become the owner of said assets so purchased, to employ Herbert W. Wehe as General Manager of the business at a salary of $ 5,000 per year; to give to Herbert W. Wehe 25% of the capital stock of the new corporation if the business proved to be successful, and to give to Herbert W. Wehe the first right to purchase the remaining shares of stock of the new corporation if and when Elmer Overly elected to sell the same.
13. Pursuant to the arrangement made with Herbert W. Wehe, Elmer Overly did cause to be formed a Pennsylvania corporation known as Overly Manufacturing Company, and Elmer Overly did subscribe for all of the capital stock, being 600 shares, and did pay into the corporation therefor the sum of $ 30,000 and, in addition thereto, said Elmer Overly loaned to said Overly Manufacturing Company the sum of $ 10,000, as a result whereof Overly Manufacturing Company became possessed of the sum of $ 40,000.
14. The sum of $ 40,000 was borrowed by Elmer Overly as follows: From the Union Trust Company of Pittsburgh, $ 20,000; from the Barclay of Westmoreland Trust ...