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MOWRY v. MCWHERTER (11/09/53)

November 9, 1953

MOWRY, EXR., APPELLANT,
v.
MCWHERTER



Appeals, Nos. 103 to 107 incl., March T., 1953, from decree of Court of Common Pleas of Westmoreland County, in Equity, No. 2376, in case of Paul F. Mowry, Exr., Estate of V. R. Mowry, deceased, et al., v. M.C. McWherter. Decree reversed.

COUNSEL

Thomas L. Wentling, with him Patterson, Crawford, Arensberg & Dunn, for appellants,

Louis E. Sensenich, with him Vincent R. Smith, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.

Author: Stearne

[ 375 Pa. Page 237]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

These appeals are from a decree in equity, in a proceeding in the nature of a declaratory judgment, wherein plaintiffs seek the interpretation of a written agreement and determination of the rights and obligations of the parties thereunder. The case was previously before this Court, reported in 365 Pa. 232, 74 A.2d 154. The court below there sustained preliminary objections to plaintiffs' complaint and dismissed the bill. It regarded the language of the agreement clear and

[ 375 Pa. Page 238]

    precise, requiring no interpretation. This Court, however, was of opinion that the agreement is ambiguous and should be interpreted in the light of surrounding facts and circumstances. The decree was reversed, the defendant directed to answer, and upon issue joined and hearing had, the court below was directed to enter an appropriate decree.

Our directions have been disregarded. The defendant offered no evidence of surrounding facts and circumstances in aid of interpretation. The court below has again ruled that the contract is not ambiguous and that the parties are bound by the terms of the agreement as interpreted by that court. It was also decided that the parties had interpreted the agreement as thus construed and consequently were bound thereby. Judgment was again entered construing the agreement as that court interpreted it. Plaintiffs have appealed.

Since defendant submitted no evidence of surrounding facts and circumstances in aid of construction we must assume either that he chose not to do so, or that none existed. We are therefore required to interpret the agreement, in its entirety, as written.

Miles C. McWherter, appellee, and Victor R. Mowry, appellants' testator, were each an owner of one half the capital stock of a Pennsylvania business corporation, George Mowry & Co., Inc. They executed what has been termed a "home made" agreement dated April 21, 1943, for the sale to the survivor of the stock of the one first dying. The portion of the agreement requiring interpretation reads:

"2. Upon the demise of either of said parties the survivor of them shall immediately become the owner of all of the outstanding stock of said company with the option to pay for the same by either of the ...


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