Appeal, No. 113, Jan. T., 1952, from decree of Court of Common Pleas of Northumberland County, in Equity, No. 792, in case of Josephine Perri et al., by Anthony Mazzotta, their attorney-in-fact, v. Zopito Chiavaroli and Conn A. Chiavaroli. Decree reversed.
John M. Smith, Jr., with him Daniel W. Kearney, for appellants.
Russell S. Machmer, with him Joseph Marvaso, for appellees.
Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE JONES
In 1945 Luigi Perri was, and for some years had been, the owner of a restaurant business in Shamokin, Pa., which he operated under the name of Shamokin Cafe. In connection with the business, he was the registered licensee of a liquor license from the Pennsylvania Liquor Control Board. On April 22, 1945, Perri and one Zopito Chiavaroli entered into a written agreement looking to the association of the two parties as partners in the conduct of the Shamokin Cafe "subject however to the consent of The Pennsylvania Liquor Control Board to transfer of the existing Restaurant Liquor License to the joint names of the parties...." The agreement provided that Chiavaroli should pay Perri for a one-half interest in the business the sum of $500 which was to be deposited with a bank in escrow "pending application to the Pennsylvania Liquor Control Board for its approval to transfer
of the license to the joint names of the parties...." The agreement further provided that if the application for transfer of the liquor license to the joint names of the parties was granted by the Pennsylvania Liquor Control Board, the bank should pay to Perri the $500 held in escrow, but if the application for transfer was disapproved, the bank should return the $500 to Chiavaroli and the "agreement [was to] become null and void." The agreement also provided that if either party should die during the continuance of the partnership, the surviving partner should have the right to purchase the deceased partner's entire interest in the business for the sum of $500.
Luigi Perri died testate on April 26, 1945, just four days after the agreement with Chiavaroli was signed. He left to survive him a wife, a son and three daughters all of whom were residents of Amanteo, Italy. Perri named Zopito Chiavaroli executor of his will. He therein devised and bequeathed one-third of his estate to his wife, one-third to his son and one-third to his three daughters in equal shares. Chiavaroli offered the will for probate on April 27, 1945, the day following Perri's death, and letters testamentary were granted to him by the Register of Wills of Northumberland County on the same day.
At the time of Perri's death, no application to the Pennsylvania Liquor Control Board for a transfer of the liquor license from Perri to Perri and Chiavaroli, as contemplated by the written agreement, had been made. Nor had Chiavaroli deposited in escrow the $500 called for by the agreement for his purchase of a half interest in the business. However, on April 28, 1945, the day after Chiavaroli qualified as executor of Luigi Perri's estate, he did pay to the estate by certified check the sum of $500 as payment of the amount required under the agreement for the purchase by a surviving
partner of a deceased partner's interest in the ...