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PITTSBURGH NO. 8 COAL CORPORATION v. NEWCOMER ET AL. (11/13/50)

November 13, 1950

PITTSBURGH NO. 8 COAL CORPORATION, APPELLANT,
v.
NEWCOMER ET AL., EXRS



Appeal, No. 191, March T., 1950, from decree of Court of Common Pleas of Fayette County, in Equity, No. 1905, in case of Pittsburgh No. 8 Coal Corporation v. Margaret E. Newcomer et al., Exrs., Estate of Frank C. Newcomer, Deceased. Decree affirmed.

COUNSEL

Linn V. Phillips, Sr., with him Phillips, Wagoner, Phillips & Board, for appellant.

Edward Dumbauld, with him T. L. Morgan, for appellees.

Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.

Author: Ladner

[ 365 Pa. Page 463]

OPINION BY MR. JUSTICE LADNER

Plaintiff is a West Virginia corporation. Defendants are the executors of Frank C. Newcomer, a deceased officer of the corporation. Plaintiff filed a bill in equity asking for an accounting on the basis of an alleged misappropriation of corporate funds and bonds which are in the possession of the defendants. The bill was dismissed by the chancellor because plaintiff had failed to prove the averments of his bill and for the further reason that the complaint was barred by laches. The court en banc on exceptions sustained the chancellor's action.

Plaintiff was organized in 1920. From its inception its principal office has been in Uniontown, Pennsylvania, and its bank account and records have been kept there. It has outstanding 2366 shares of common stock originally of par value of $100.00 each but later reduced to $10.00 each and 100 bonds in the principal

[ 365 Pa. Page 464]

    amount of $500.00 each, secured by a deed of trust on its West Virginia property.

The corporation was never successful and found it necessary to borrow money from its stockholders. Its bonds have been in default for a long time. From the time of its organization until August 27, 1946, Frank C. Newcomer (defendants' decedent) was a stockholder of the corporation, a member of its board of directors, its secretary and treasurer and its attorney. He had charge of the books of the corporation, attended to the correspondence, did the legal work and permitted his office to be used as the office of the corporation. After his death all of the books and correspondence of the corporation were turned over to George P. Hoover, president of the corporation.

An attempt was made to audit the books of the corporation for the period from August 1, 1923, to August 27, 1946, the date of Frank C. Newcomer's death. The auditor, however, was unable to balance the books because the records were not properly kept.

George P. Hoover, who filed this bill of complaint on behalf of the corporation was president of the corporation from 1930 and a member ...


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