Appeal, No. 248, Jan. T., 1950, from decree of Court of Common Pleas No. 1 of Philadelphia County, Sept. T., 1946, in Equity, No. 1134, in case of Anne Spivak, Administratrix, Estate of Jacob Spivak, Deceased, v. Jules Bronstein, trading as J. and J. Bar and Grille, et ux. Decree affirmed.
Ivan Michaelson Czap, with him Henry W. Balka, for appellant.
Edward Stone, with him Shapiro, Rosenfeld & Stalberg, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE LADNER
The plaintiff, Anne Spivak, is the widow and administratrix of Jacob Spivak who died intestate April 26, 1943, leaving to survive him, the plaintiff and one child, then about 2 1/2 years of age. At the time of his death Jacob Spivak was the partner of the defendant Jules Bronstein in a taproom and restaurant business. The partnership agreement contained no provision governing dissolution in case of death, but the administratrix without consent or approval of the Orphans' Court, entered into a new partnership agreement with the defendant on May 20, 1943. That agreement recited that Anne Spivak executed it "on her own behalf, and as administrator (sic) of the Estate of Jacob Spivak, and as Guardian of the minor heir, Allen Spivak." In fact she was not then and never was guardian of her son. The agreement further recited that it was desirous to carry on the said business for the benefit of the heirs of said decedent and the surviving partner. The decedent's interest was valued therein at $4000. According to its terms Bronstein was required to conduct the business, pay the plaintiff $40 a week and was to retain for himself the balance of profits. It also gave the defendant an option to purchase the interest of the plaintiff at an agreed valuation or at a valuation to be fixed by three appraisers to be selected as therein specified.
The new partnership conducted the business until August 28, 1946, when it was terminated by a written agreement by which plaintiff, "individually and as Administratrix
of the Estate of Jacob Spivak," sold her interest in the business (recited to be one half) to defendant for $8,500, reserving any right which she might have to an accounting for the profits from the date of the death of Jacob Spivak (April 26, 1943) to the date of this agreement (i.e., August 28, 1946).
On September 21, 1946, plaintiff, as administratrix, filed her bill in equity for an accounting against defendant, Jules Bronstein, and his wife. The bill after reciting the facts substantially as hereinbefore set forth, averred, inter alia, that her share of the profits were grossly in excess of the $40 a week paid her; that defendant Bronstein had fraudulently induced her to sell her interest to him by misrepresenting that he could not secure a renewal of the lease for the premises in which the business was carried on and would have to vacate the same. The bill prayed for an accounting and other relief.
After answer and issue, the cause came on for a hearing and the chancellor filed his adjudication in which he found the allegations of the bill as to fraud and mismanagement were not sustained and that under the agreements made by her she was not entitled individually to any accounting. He further found, however, that the rights of the minor for whom she purported to act as guardian, (but in fact was not the guardian) were not affected by her unauthorized acts. He concluded therefore that the administratrix was without authority to invest the minor son's share of his father's estate in a partnership with the surviving partner, that the minor was not barred by his mother's action from recovering any profits attributable to his one-quarter interest in ...