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GALLAGHER v. MERRY (01/02/51)

January 2, 1951

GALLAGHER, APPELLANT,
v.
MERRY



Appeal, No. 269, Jan. T., 1950, from decree of Court of Common Pleas No. 1 of Philadelphia County, June T., 1949, No. 2641, in case of James Gallagher v. Walter J. Merry et al.Decree reversed.

COUNSEL

Morris Wolf, with him Francis T. Anderson, Gray, Anderson, Schaffer & Rome and Wolf, Block, Schorr & Solis-Cohen, for appellant.

Thomas B. K. Ringe, with him J. Wesley Oler, Martin P. Snyder and Morgan, Lewis & Bockius, for appellees.

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

Author: Stearne

[ 366 Pa. Page 259]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

The appeal is from a decree in equity sustaining preliminary objections to plaintiff's amended bill of complaint, and the entry of a final decree in favor of defendants.

James Gallagher, the plaintiff, in a crudely drawn amended bill in equity, avers that he was the sole and absolute owner of all the capital stock of two named corporations and that his son-in-law, Walter J. Merry, occupying a confidential relation, fraudulently induced

[ 366 Pa. Page 260]

    him to transfer all of his stock holding to his son-in-law, a daughter and granddaughter (wife and child of the son-in-law) and to another granddaughter. To the bill are a attached copies of the documents which are charged to have been fraudulently secured.

In sustaining preliminary objections to the bill and entering a final decree in favor of defendants, the court below relied upon (a) failure of plaintiff to attach copies of stock certificates in question (b) prayer for an accounting was insufficiently averred (c) failure to offer to restore status quo (d) the absence of adequate averment of confidential relationship or undue influence and failure to charge reliance upon the misrepresentation if made (e) no amplification of the nature of the confidential relationship charged (f) laches.

As counsel for plaintiff was given ample opportunity to amend the amended bill, and did not or considered that he could not do so, we will not permit plaintiff to amend further. Plaintiff must rely upon the record as now presented.

Equity Rule 34 requires that "Every bill shall contain, in a concise and summary form, a statement of the facts on which plaintiff relies...." Citation of authority is unnecessary to support the requirement that allegations must be certain and specific in order that defendant may be distinctly informed of ...


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