Appeal, No. 144, Jan. T., 1953, from order of Court of Common Pleas of Chester County, Aug. T., 1951, No. 1132, in case of Harry Goldberg v. Jacob Goldberg. Order reversed.
Fairfax Leary, Jr., with him Charles C. Hileman, III, J. Paul Macelree, Lawrence E. MacElree, MacElree & MacElree and Schnader, Harrison, Segal & Lewis, for appellant.
W. Edward Greenwood, with him Thomas C. Gawthrop, D.J.C. O'Donnell and Gawthrop & Gawthrop, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
Plaintiff brought a bill in equity to compel defendant to execute and deliver to him a deed for his undivided interest in partnership real estate as to which defendant, fourteen years ago, had assigned all his right, title and interest. Defendant contended that the prior assignment was intended to cover only his interest in the partnership assets which were personal property. The chancellor found against the defendant on this issue, but refused to order a conveyance by defendant because the original agreement (assignment) did not comply with the Partnership Act and because plaintiff had not liquidated the partnership business and therefore was not entitled to equitable relief. These
last objections and issues were raised by the Court and were never raised at any time by defendant.
The material facts are these: Harry Goldberg, plaintiff, Jacob Goldberg, defendant, and their brother, Reuben Goldberg, on July 19, 1920, formed a partnership for the purpose of carrying on a junk business under the name of "Goldberg Brothers". In 1920, the partnership purchased a tract of land and in 1931 purchased another tract of land. Reuben died in 1937 and his brothers, Harry and Jacob continued to carry on the partnership business. Reuben's estate still had rights in the partnership; but Reuben's rights in specific partnership property expired at his death and vested in his surviving partners: Sections 42 and 25 (2) (d) of the Uniform Partnership Act, March 26, 1915, P.L. 18, 5. PS 104, 72.
On March 23, 1938, the partnership business was in a precarious condition and Harry and Jacob and Reuben's administratrix were having family differences. The surviving partners, Harry and Jacob, thereupon entered into a written agreement which recited that it was Jacob's intention to sell and Harry's intention to purchase, all the right, title and interest of Jacob in and to the assets of Goldberg Brothers; and in consideration of the payment by Harry to Jacob of $500, Jacob transferred and assigned to Harry "all his undivided interest in and to all the assets belonging to him as one of the surviving partners of Goldberg Brothers...."
The chancellor found that when Jacob executed this assignment he knew its contents and intended thereby to assign and transfer all his right and interest in and to the partnership and to all its property of whatever nature, including the partnership real estate. Harry Goldberg has been in ...