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BUFFINGTON v. BUFFINGTON (06/28/54)

June 28, 1954

BUFFINGTON, APPELLANT,
v.
BUFFINGTON



Appeal, No. 154, March T., 1954, from order of Court of Common Pleas of Jefferson County, Jan. T., 1953, in Equity, No. 156, in case of Herman L. Buffington v. John K. Buffington. Order reversed. Proceeding upon petition of plaintiff and rule to show cause why receiver, appointed in equity upon dissolution of a partnership, should not complete sale and deliver up assets, and for order setting aside order of resale. Order entered discharging rule, opinion by MORRIS, P.J. Petitioner appealed.

COUNSEL

Jesse P. Long, for appellant.

John K. Myers, with him Robert M. Dale, for appellee.

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

Author: Stearne

[ 378 Pa. Page 151]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

The appeal raises the question whether a chancellor in a proceeding for the dissolution of a partnership may, in his discretion, set aside his decree made in accordance with a written agreement, signed by both parties and their counsel, directing a receiver to sell the partnership assets. The Chancellor set aside the sale and rescinded the decree because one of the partners asserted that he misunderstood the effect of his written agreement and stipulation. There was no allegation of omission because of fraud, accident or mistake. This appeal followed.

From the portion of the record not printed in this appeal it appears that on or about November, 1945 Herman L. Buffington, plaintiff, and John K. Buffington, defendant, entered into an oral agreement of partnership for the manufacture of commercial refrigeration equipment and metal fabrication. Plaintiff contends that he possesses a two thirds interest and that the defendant only holds a one-third interest. The defendant denies this and asserts that he is a full one-half owner. But the extent of ownership is not before us and we expressly refrain from passing upon such question at this time.

On January 13, 1953, plaintiff filed a complaint in equity seeking dissolution of the partnership, the appointment of a receiver to temporarily continue the business, to sell same "as a going concern" to wind up the affairs on the partnership, to pay all partnership bills, to conduct an audit and accounting of partnership assets, etc., to ascertain the interests of the partners and to make distribution. An answer was filed by defendant. Plaintiff made a motion for judgment. On June 26, 1953, the court decreed that the partnership, being one at will, was dissoled. A receiver

[ 378 Pa. Page 152]

    was appointed. This was in compliance with Section 31 (1) (b) of the Uniform Partnership Act, Act of March 26, 1915, P.L. 18, part VI, 59 PS ยง 93 (1) (b).

On July 6, 1953, plaintiff petitioned the court for an order on the receiver authorizing and directing him "... to hold a private auction sale of all of the tangible and intangible assets, property, rights, patents and privileges of whatsoever kind of [the partnership], including the good will of said business, said auction to be attended solely by Herman L. Buffington and John K. Buffington, the respective partners thereof, and their respective counsel, that at said sale all of the assets and property of said partnership be offered at auction to the said two partners and sold to the partner who, after competitive bidding, agrees to and actually does pay the highest price therefor, said sale to be held within a reasonable period of time after the date of the presentation of this Petition, upon such terms as to security and payment as [the] Court may see fit." (Italics supplied)

Following the petition, on July 10, 1953, upon the written approval of both plaintiff and defendant, also signed by the respective counsel of both parties, the court made the following order:

"1. [The] Temporary Receiver, shall hold a private auction sale of all the tangible and intangible assets, property, rights, patents and privileges of whatever kind of [the partnership], at the plant of the partnership located in Punxsutawney, Pennsylvania, on July 17, 1953, at 10:00 o'clock, A.M., Eastern Daylight Saving Time.

"2. At such sale the upset price of all such assets and property shall be $150,000.00 and bidding by the respective ...


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