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HENDERSON v. ZUBIK (11/18/57)

November 18, 1957

HENDERSON
v.
ZUBIK, APPELLANT.



Appeal, No. 186, March T., 1957, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1956, No. 2619, in case of George W. Henderson v. Charles Zubik. Judgment affirmed.

COUNSEL

John F. Healy, with him James F. Callahan, for appellant.

Loyal H. Gregg, with him William W. Matson and Gregg and Price, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Arnold

[ 390 Pa. Page 522]

OPINION BY MR. JUSTICE ARNOLD

This appeal is from the lower court's refusal to enter judgment n.o.v. or grant a new trial following the jury's verdict for the appellee in amount of $16,350, including interest. The present dispute arose after the termination of a partnership venture, which had been established orally by the parties, about June 1, 1949, and continued until April, 1950.

At time of trial the appellee introduced into evidence without objection certain portions of the pleadings, containing the provisions of the oral agreement. However, the defendant's answer averred facts which constituted an affirmative defense, declaring, that in addition to plaintiff's allegations, there were oral promises that each party would contribute certain sums of money to set up the business.

From an examination of the record it is apparent the oral agreement provided as follows: That plaintiff

[ 390 Pa. Page 523]

    was to act as agent for defendant in the purchasing and selling of structural steel and scrap iron; that materials purchased were to be paid for by the defendant and stockpiled on his lot; that plaintiff was to hire employes and conduct the operation of the business; that defendant was to keep the books and records; and that plaintiff was to receive 50% of the net profits for his efforts. This action in assumpsit was to recover the share of net profits due plaintiff. As this Court has declared many times, when passing upon motion for judgment n.o.v., we must examine the facts and all inferences deducible therefrom, in a light most favorable to the plaintiff. Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 5, 130 A.2d 123; Virden v. Hosler, 387 Pa. 1, 5, 127 A.2d 110. Certainly upon these facts, which were undisputed by the appellant, the lower court was justified in refusing his motion for judgment n.o.v.

In support of the motion for new trial, appellants contend the lower court erred in permitting the introduction of appellee's business books into evidence as books of original entry. The book entries, made only at the time materials were sold, indicated the purchaser, sale price, cost of materials and which of the parties received the proceeds of the sale. At no time were any entries made at the time of purchase, and all entries regarding the cost of the material were dependent upon the memory and recollection of the appellee. This was the business accounting system employed by the partnership. The soundness of the system is not for us to pass upon, but the importance of the matter lies in the fact that it was their system, and continued for a period of almost two years. Moreover, the testimony indicates ...


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