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WISEMAN v. MARTORANO (11/14/61)

November 14, 1961

WISEMAN
v.
MARTORANO, APPELLANT.



Appeal, No. 171, March T., 1961, from decree of Court of Common Pleas of Beaver County, June T., 1955, No. 6, in equity, in case of Maurice Wiseman v. Louis Martorano. Decree modified and affirmed; reargument refused January 2, 1962.

COUNSEL

Martin Croissant, for appellant.

John D. Ray, with him Ray & Good, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.

Author: Cohen

[ 405 Pa. Page 370]

OPINION BY MR. JUSTICE COHEN.

Maurice Wiseman, plaintiff-appellee, and Louis Martorano, defendant-appellant, bought a piece of real property in Beaver County. Martorano advanced the full purchase price of $16,000. Within a few months these two men formed a partnership by written agreement for the purposes of dealing in real estate and engaging in the trucking business. The agreement states that, "... [The] first venture of said partners was the purchase of [the above property]."

The partnership agreement also provided that Wiseman execute a non-interest bond and mortgage to Martorano against his undivided one-half interest in the land in payment of Wiseman's share of the purchase price advanced by Martorano. Accordingly, the mortgage was executed on the same day as the agreement.

Martorano, some three years later, caused judgment to be confessed upon and entered on the mortgage bond. An accompanying affidavit of default averred that Wiseman had defaulted by breaching the partnership agreement and by failing to turn the collected rents over to the partnership. Martorano eventually became the purchaser of the property at sheriff's sale.

Wiseman then commenced an equity proceeding, claiming that the property was partnership property; that he had no knowledge either that Martorano was going to enter confession of judgment on the bond or that the property was to be sold at sheriff's sale; that Martorano, as a partner, thereby breached his fiduciary duties to Wiseman; and that the court should, among other things, set aside the judgment and require Martorano to reconvey to him his interest in the property.

The court below, after hearing, entered an interlocutory decree on stipulation of the parties waiving the procedural requirements for findings of fact and conclusions of law. The decree set aside the confession and judgment on the bond as null and void, ordered the

[ 405 Pa. Page 371]

    property to be made an asset of the partnership to be held by the partners as tenants in partnership, and placed the property in the hands of a trustee until the parties ...


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