Appeal, No. 80, Oct. T., 1963, from Judgment of Court of Common Pleas of Delaware County, Sept. T., 1960, No. 1723, in case of John B. Wathen v. Alfred G. Brown. Judgment reversed.
Otis W. Erisman, with him Walter Y. Howson, and Truscott, Kline, O'Neill & Howson, for appellant.
George J. McConchie, with him Ralph B. D'Iorio, and Cramp and D'Iorio, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 200 Pa. Super. Page 622]
OPINION BY MONTGOMERY, J.
This case began as an assumpsit action brought upon an oral agreement. The suit resulted in a verdict in the amount of $3,000 and the appeal was taken after the court below refused motions for a new trial and judgment n.o.v.
On May 28, 1957, appellee, John B. Wathen, and appellant, Alfred G. Brown, entered into an oral contract of partnership for the purpose of merchandising a sign to be used in service stations and garages. Before entering into the agreement appellee had expended approximately $7,300 for the initial inventory order and was looking for additional capital. By the terms of the oral agreement appellant was to obtain a 25 percent interest in the Wathen Company for paying the appellee the sum of $7,000, $4,000 of this sum to be payable when it became necessary to make a second order of inventory. Pursuant to the aforesaid agreement, appellant paid the appellee the sum fo $4,000 on July 5, 1957.
Two or three days prior to November 8, 1957, appellee asked the appellant for the balance of the $7,000. On November 8, 1957, appellant informed the appellee that he was not going to pay the $3,000 and that he wanted the $4,000 back that he had already put in, or he was going to close the business. After consulting his attorney, the appellee attempted to get the appellant to accept in settlement a sum less than the $4,000 that he had paid in because the business had suffered losses. Appellant refused. However, he finally agreed to take the demanded $4,000 in the form of three promissory notes, the first one in the amount of $1,500 due June 1, 1958, the next in the amount of $1,250 due June 1, 1959 with interest at six percent, and the
[ 200 Pa. Super. Page 623]
third note in the amount of $1,250 due June 1, 1960 with interest at six percent per annum. The dissolution agreement was reduced to writing by appellee's attorney and provided, inter alia, for the payment by Wathen to Brown of the sum of $4,000 in the form of the three notes set forth above. In consideration of this payment Brown assigned to Wathen all his right, title and interest in the partnership assets. Wathen assumed all the liabilities of the partnership and the partnership was dissolved as of December 9, 1957. The appellee paid the appellant the first note on or about June 1, 1958, and the second note on or about June 9, 1959.
The appellee alleges that in June of 1959 he wrote to the appellant asking that the money which had been paid to the appellant in accordance with the dissolution agreement be repaid to him, and that the third note which was yet unpaid be returned. Appellant denies ever receiving this letter.
The appellant obtained judgment against the appellee for the amount of the third note, $1,250, and the judgment was ...