Appeal, No. 89, March T., 1951, from decree of Court of Common Pleas of Allegheny County, Oct. T., 1948, No. 1605, in case of Onyx Oils & Resins, Inc., v. Morris Moss. Decree affirmed.
D. S. Thomas, with him Campbell, Houck & Thomas, for appellant.
George D. Lockhart, with him Judd N. Poffinberger, Jr. and Kirkpatrick, Pomeroy, Lockhart & Johnson, for appellee.
Before Drew, C.j., Stern, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE CHIDSEY
The plaintiff corporation, Onyx Oils & Resins. Inc., has appealed from the decree of the Court of Common Pleas of Allegheny County dismissing the plaintiff's exceptions to the adjudication of the chancellor.
Prior to November 4, 1946 the defendant, Morris Moss, owned 200 of a total of 500 shares in the Standard Can Company and one P. W. Hatfield owned the balance of 300 shares. There subsisted between Moss and Hatfield an agreement requiring the survivor to buy the other's shares on the death of the holder. The defendant, anticipating that Hatfield would predecease him, had discussed with Jerome Kleinman, the secretary and treasurer of the plaintiff corporation, acting on its behalf, plans whereby the plaintiff would ultimately purchase 200 of the Hatfield shares for $80,000. It is sufficient for our purposes to note that Kleinman and the defendant had maintained certain business and personal friendship relations for some years prior to the events which are the source of the issues in this case; the plaintiff corporation was for some years a sales agent for the Standard Can Company.
When Hatfield died on November 4, 1946, the defendant undertook the purchase of his 300 shares in the Standard Can Company. To this end various conversations and negotiations ensued whereby the parties sought to resolve the problem of embarking on a joint ownership of the Standard Can Company without the attendant disadvantages of minority ownership which Moss had experienced in relation to Hatfield.
On November 16, 1946, as a result of their various conversations, the plaintiff and the defendant executed a document called an "agreement" whereby the plaintiff turned over to the defendant "the sum of $80,000.00 to be held in trust... solely for the purposes [therein] set forth." The fourth paragraph of this "agreement" appeared at the end of the page as follows: "The party of the first part hereby agrees with all due dispatch to purchase from the Estate of P. W. Hatfield the 300 shares of stock of Standard Can Company now held by said Estate. Immediately upon said purchase of said shares of stock, the parties hereto shall enter into an agreement among themselves as stockholders, and also a voting trust agreement mutually agreeable. " There immediately followed the signatures of the parties at the bottom of the page. The italicized words were handwritten inserts and the deletion is as indicated.
The "agreement" executed on November 16, 1946 was the first two pages of a longer draft which had been prepared by counsel for the plaintiff. The pages of the draft which were not incorporated into the signed agreement admittedly represented ...