Appeal from decree of Court of Common Pleas No. 6 of Philadelphia County, Sept. T., 1962, No. 4477, in case of Max Keyser v. Sheldon B. Margolis, Dorothy C. Margolis, individually and as partners trading as Margolis Associates, and Margolis Associates, Inc.
D. Arthur Magaziner, with him Burton Spear, Milton P. King, and Mancill, Sterling, Magaziner and Seamans, for appellants.
Daniel B. Pierson, V, with him D. Malcolm Anderson, and Raspin, Espenshade, Heins, Erskine & Stewart, and Griggs, Moreland, Blair & Douglass, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones and Mr. Justice Eagen dissent. Mr. Justice Roberts dissents and would affirm the determination of the court below entitling Plaintiff to a 1/3 share of the profits.
Appellee-plaintiff brought this suit in equity, alleging that under an oral agreement made in 1957, he,
Max Keyser, became a one-third partner with appellants in a wine-brokerage business known then as Margolis Associates, which subsequently became incorporated, and is now known as Margolis Associates, Inc. Appellee, in his complaint, prayed for an accounting from each and all of the appellants, and further prayed that a trusteeship as to one-third of the capital stock of the corporation be set up, and that stock be assigned to him.
Appellants contend that appellee joined the Margolis organization as an employee, that subsequently he had been offered a one-third share of the profits, but that this offer had never been accepted by the appellee. Appellants further contend that all of appellee's dealings were exclusively with Dorothy C. Margolis, one of the appellants, who had assumed control of the operation of the business because of the illness of her husband, John; that the appellee had no dealings whatsoever with Sheldon B. Margolis, the son of Dorothy and John, who, until he was made a partner on June 28, 1958, had been only an employee of Margolis Associates, nor with the First Pennsylvania Banking & Trust Company, the appointed guardian for John A. Margolis, who had been seriously ill since April 4, 1957, nor with Margolis Associates, Inc., a Pennsylvania Corporation organized in September of 1960.
Appellee and one of the appellants, Dorothy C. Margolis, signed a memorandum of employment dated June 14, 1957,*fn1 which set forth the terms of employment, and
was accepted by the appellee.*fn2 During appellee's subsequent period of employment, there was a voluminous record of correspondence concerning appellee's contract, and on at least two occasions, appellant submitted proposed contracts to appellee, neither of which was accepted.
The issues came to trial on November 16, 1964, and the chancellor, after hearing the evidence, determined that appellee had entered into an agreement with Dorothy C. Margolis, acting on behalf of herself and the other appellants, except for her husband, John A. Margolis, and his appointed guardian, the First Pennsylvania Bank and Trust Company, as to whom the action was nonsuited. The chancellor denied the motion of appellants' counsel for a non-suit with respect to Sheldon B. Margolis and Margolis Associates, Inc. The chancellor found that although the evidence was insufficient to show a valid partnership as contended by appellee, pursuant to an oral agreement, appellee-plaintiff was entitled to a one-third share of the profits of the business during ...