Appeal, No. 101, March T., 1956, from decree of Court of Common Pleas of Beaver County, Dec. T., 1954, No. 1, in case of Charles L. Kribbs v. J. Ellis Jackson et al. Decree affirmed; reargument refused March 6, 1957.
John A. Metz, Jr., with him Edwin M. Wallover, and Metz, McClure & MacAlister, for appellant.
Leonard L. Ewing, and T. Bradshaw, with them George W. Lucas, Reed, Ewing & Ray, and Broadshaw & Panner, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is an equity action brought in Beaver County in which plaintiff Kribbs, averring, inter alia, in his complaint that the defendants Jackson and Solomon had fraudulently misappropriated monies of the plaintiff, sought an accounting by, and recovery from both defendants. The defendants filed separate answers. Solomon's answer included a counterclaim to which plaintiff filed an answer. The case was heard by President Judge ANDERSON of the Orphans' Court of Washington County, specially presiding as chancellor, who entered a decree nisi in favor of the plaintiff and against both defendants and dismissed Solomon's counterclaim which was founded on the same transaction. No exceptions thereto were filed by defendant Jackson and judgment was thereafter duly entered against him from which no appeal was taken. Exceptions filed by the defendant Solomon were heard by the court en banc consisting of the chancellor and President Judge SHUMAKER of Butler County, also specially presiding. The exceptions were dismissed and the decree nisi affirmed. This appeal by Solomon followed.
The facts as found by the chancellor may be summarized as follows: On June 1, 1951, the plaintiff Kribbs, who was retired and resided in Florida, was the owner of a two-story business property located in Beaver Falls, Pennsylvania. Defendant Jackson, who is a justice of the peace in Beaver County, was in the real estate business and acted as the agent of Kribbs to collect the rents from the property and remit them to Kribbs in Florida. The rent received from the tenant
occupying the Kribbs property for some time prior to June 1, 1951, was $275 per month which defendant Jackson regularly remitted to Kribbs in Florida less a commission of 5 per cent of the gross rental. On or about June 1, 1951, the tenant occupying the Kribbs property moved, the property became vacant, and Jackson sought a new tenant.
Defendant Solomon, a lawyer and member of the Bar of Beaver County, was one of the owners of another business property in Beaver Falls which had been occupied for some years by the Reserve Corps of the United States Army under lease by the United States of America, hereinafter referred to as the Government. Solomon was a member of the Reserve Corps. The Government's lease expired June 30, 1951 and Solomon had given notice that he wanted possession at that time in order to rent the property to another tenant. Solomon learned that the Government was looking for another property in Beaver County to rent and learned that it was considering a certain property in Beaver Falls known as the Gary property at a rental of $650 per month.
In the early part of June, 1951, after the Kribbs property had become vacant and after Solomon had notified the Government to vacate his property on the expiration of its lease, Solomon approached Jackson and told him he could produce a good tenant for the Kribbs property at a rental of not less than $500 a month if he were paid $100 per month for the life of the lease. Solomon stated that his prospect was considering the Kribbs property and another property and led Jackson to believe he controlled the choice as between these properties. The tenant Solomon had in mind was the Government although he did not at that time divulge the identity of his prospect to Jackson.
Jackson subsequently accepted the proposition and a written agreement prepared by Solomon was entered into between Jackson as agent for Kribbs, and Solomon, whereby Solomon agreed to furnish "legal counsel and services" to Kribbs in obtaining a responsible tenant for the Kribbs property at a rent of not less than $500 per month, Kribbs to furnish adequate heat, light (not to exceed $15 a month), water and janitor service. It further provided that Kribbs was to pay Solomon $100 monthly during the term of the lease "and all extensions, renewals or releasings thereof". Jackson had no authority from Kribbs to enter into this agreement and Kribbs had neither notice nor knowledge of it until nearly three years later. The chancellor made no finding ...