Appeal, No. 112, March T., 1957, from decree of Court of Common Pleas of Washington County, No. 4935, in equity, in case of August S. Carnock v. Howard L. Filer et al. Case remanded.
Milton D. Rosenberg, with him Bloom, Bloom and Yard, for appellant.
George B. Stegenga, with him John H. Davidson, and Davidson & Fergus, for appellees.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BELL
Plaintiff brought a bill for an accounting, claiming that he made an oral agreement on May 4, 1948 to purchase for $40,000 a one-quarter interest (1) in a partnership with the defendants in certain equipment of the S. & F. Equipment Company, and (2) in the strip mining operating which they (allegedly) conducted in West Virginia, and (3) in the deep mine operation which they (allegedly) conducted. Defendants denied that plaintiff was a partner, and the Filers testified that plaintiff merely purchased a one-quarter interest in the equipment owned by the Equipment Company.*fn* The Filers also testified that plaintiff had been paid in full for everything owed him.
The testimony was conflicting and the record voluminous. The questions involved were made more difficult (a) because H. C. Sims, with whom plaintiff claimed he made the oral agreement sued on, had suffered four heart attacks and was prohibited by the doctor from testifying, and (b) because of the very wide range covered by the testimony, much of which seemed irrelevant and tended to confuse the issues.
The Chancellor who saw and heard the witnesses made, inter alia, the following pertinent findings of fact:
"5. On May 4, 1948, August S. Carnock, the plaintiff, agreed to pay to H. C. Sims, the sum of $40,000 for an undivided one-fourth (1/4) interest in the equipment, parts, trucks, etc., owned by the S. & F. Equipment Company, as is shown in the Bill of Sale (Exhibit C.).
"6. On May 4, 1948, H. C. Sims agreed that in return for the sum of $40,000, the plaintiff, August S. Carnock, would receive a one-fourth (1/4) interest in the S. & F. Equipment Company.
"12. It was agreed to by the plaintiff and the defendants that each would receive the sum of $500 per month as wages or salary out of the money received from the rentals which would accrue from the use of the equipment owned by the plaintiff and the defendants in the strip and deep mining operations conducted at Opekiska, West Virginia, in addition to a ...