Appeal, No. 193, Jan. T., 1950, from decree of Court of Common Pleas No. 5 of Philadelphia County, March T., 1949, No. 6418, in case of Joseph Slater v. Raymond Slater, also known as Ray Slater. Decree affirmed; reargument refused September 9, 1950.
James H. McHale, for appellant.
Sabato M. Bendiner, with him Frank W. Hatfield and Ralph C. Busser, Jr., for appellee.
Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.
OPINION BY MR. CHIEF JUSTICE DREW
Plaintiff brought this appeal from an order of the court below dismissing his Bill in Equity for the appointment
of a receiver for an alleged partnership, the enjoining of disposition of its property, and an accounting of the affairs of the partners inter se.
Plaintiff and defendant, who are brothers, in 1928 entered into an oral partnership agreement to engage in the hauling and trucking business under the firm name of "Slater Brothers". A certificate of authorization was issued to them by the Public Service Commission (now the Public Utility Commission) of Pennsylvania in January, 1936, and in August, 1938, the Interstate Commerce Commission issued them a similar license to operate in interstate commerce. Defendant, the better educated of the two partners, handled all the managerial details of the firm's business while plaintiff, who is some years younger, worked as a truck driver and assisted in the repair and maintenance of the trucks. In November, 1947, a transfer of the Certificate issued by the Interstate Commerce Commission to the partners was made to defendant in his own name and a few months later a similar transfer of the Pennsylvania Public Utility Commission Certificate was attempted but failed because of defects in the application. This Bill in Equity was then filed in May, 1949, charging defendant with violations of the partnership agreement including, inter alia, the acquisition by defendant of the Interstate Commerce Commission Certificate in his own name by forgery or trickery, a fraudulent attempt to obtain the Pennsylvania Public Utility Commission Certificate, conversion of partnership funds, and the failure to keep accurate partnership records or to furnish plaintiff with an accounting thereof. Defendant, in his answer, denied the accusation of fraud in the obtaining of the transfer of either Certificate but admitted the existence of the fraternal partnership. Defendant further averred, however, that the partnership was terminated by mutual agreement in October, 1939, that the assets were then divided in
tax returns reporting the entire proceeds derived from a manner satisfactory to both parties, and that they have since carried on their trucking businesses as separate and independent enterprises. The learned court below dismissed plaintiff's exceptions to the chancellor's findings in favor of defendant and this appeal followed.
The undisputed evidence established that each party, at all times subsequent to 1939, filed separate income their individual business activities and that, shortly after the alleged dissolution, casualty insurance was charged to each of them proportionately, and from 1940 on, to each of them separately. Life insurance policies, formerly paid by the partnership, were thereafter paid by each individually. The parties billed their respective customers on their individual billheads and each retained the proceeds thereby obtained for his own use. Each provided for his own expenses and at no time, during the intervening nine years, did either brother demand an accounting from the other or a share in the profits although they continued to use the same office, the same storage space for their trucks and the same telephone to receive orders from their customers. Furthermore, when either brother needed assistance in the nature of an additional truck or driver, the other usually supplied it but billed the customer in his own name for the services rendered. Only on one occasion, when plaintiff was incapacitated for a month, did the brothers vary from this procedure. At that time defendant serviced plaintiff's primary customer but directed that all payments be sent to plaintiff and be retained by him. To counter this evidence, ...