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TONER v. NUSS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA


October 6, 1964

Donald L. TONER, Trustee of the Estate of Robert H. Leatherman, Bankrupt
v.
George F. NUSS and Cottman Realty Company

The opinion of the court was delivered by: KRAFT

Plaintiff trustee in bankruptcy of Robert H. Leatherman (Leatherman) brought this action against George F. Nuss (Nuss) and Cottman Realty Co. (Cottman), to recover the value of personal property of Leatherman purchased by Nuss at a sheriff's sale under execution upon a judgment entered against Leatherman by Cottman. Defendants filed a counterclaim.

The case was tried to the Court. From the evidence adduced, we make the following

 FINDINGS OF FACT

 1. Commencing in 1957, Leatherman, trading under the name of 'Leatherman Marine Service', engaged in the business of selling and servicing small boats and outboard motors and related accessories, at a store located on Route 309, north of Sellersville, Bucks County, which he occupied as tenant.

 2. By written agreement titled 'Pennsylvania Land Contract', dated January 1, 1959, Leatherman and wife, as buyers, undertook to purchase the aforesaid store premises from Cottman, as seller, for the consideration of $ 25,000, to be paid in equal monthly installments of $ 179, inclusive of principal and interest, during a term of 20 years, title of seller to be conveyed to buyers upon payment to seller in full.

 3. For purposes of this suit only, Nuss and Cottman, a Pennsylvania corporation, are identical legal entities.

 4. Leatherman was 31 years old at the time of trial and had been employed by a tire company as a truck driver and salesman prior to 1957. His formal education had ended at the 9th grade.

 5. In May 1960, Leatherman advised Nuss by telephone that his business was having financial difficulties and that he doubted his ability to pay the installment then due under the land contract; Nuss replied, 'Let it go', that he would 'be up'.

 6. Nuss visited Leatherman on or about May 15, 1960, the day following their telephone conversation. At least two monthly installments were then overdue under the terms of the land contract. On this visit Nuss told Leatherman that he would 'try to pull this business up on a paying basis again', and that, until it was on such basis, he would charge 'a dollar a month installment'.

 7. Thereafter, during the remainder of May, and in June, July and August 1960, Nuss visited the store premises every day except Sundays, when the store was closed. On each occasion Nuss examined the cash receipts of the business and its books of account, which were maintained by an accountant until July 1960.

 8. On or about May 15, 1960, following their discussion of the financial problems of the business, Nuss and Leatherman went to the Kiekhaefer Corporation, Riverside, N.J. There Nuss paid $ 2,699.17, by his own check, for the purchase of at least 4 outboard motors, which they brought back to Leatherman's store, pursuant to an agreement that Leatherman would pay Nuss 6 per cent interest on the purchase price.

 9. Either at some later date in May 1960 or at the time of the subsequent sheriff's sale, following more discussion of the financial problems of the business, Leatherman received a piece of paper from Nuss on which, in the latter's handwriting, were the words, 'No salaries or Commissions. 6% On invested capital. Then profits to be divided equally.' 10. On or about May 15, 1960, Leatherman Marine Service kept books of account at its store premises reflecting its financial condition, approximately, as follows: Inventory, at cost $ 7000 Accts. Pay. $ 8000 Equip. & Tools 3500 Loans Pay. 10000 Accts. Rec. 3500

19641006

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