decided: July 27, 1967.
Appeal from decree of Court of Common Pleas of Washington County, No. 5710, in Equity, in case of James E. Selway v. Mary Selway, individually and trading as Selway Termite Company.
Sanford S. Finder, with him Robert L. Zeisler, for appellant.
Thomas L. Anderson, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien.
[ 426 Pa. Page 225]
Plaintiff-appellant commenced an action in equity seeking the rescission of a contract whereby he conveyed his interest in a business which had been owned by him and the defendant-appellee, who was also his wife. The agreement was executed in January of 1960, and subsequently, the consideration called for was paid to appellant, and appellee took over sole ownership of the business.
Subsequently, the parties were divorced, and in July of 1960, appellant remarried in Arizona, where he remained and operated a business of his own until September of 1960. At that time, he returned to Washington, Pennsylvania, and commenced the operation of a business in competition with his former wife. In February of 1961, he commenced the instant action for rescission, alleging that because of his mental condition,
[ 426 Pa. Page 226]
his former wife had successfully used threats, duress, and undue influence to compel him to sell his interest in the business to her. Appellee answered the complaint and denied the material allegations. In addition, she filed a counterclaim, asking that plaintiff be enjoined from competing with her, pursuant to a non-competition agreement made ancillary to the agreement of sale. The chancellor who heard the matter died prior to his adjudication of the matter, and the record was given to another member of the bench of that county for adjudication. No additional testimony was heard. The chancellor made his adjudication and entered a decree nisi, ordering rescission of the contract. Exceptions were filed by appellee, and the court en banc reversed the writer of the adjudication and entered a final decree refusing relief, both on the complaint and the counterclaim. This appeal followed.
The evidence in this action is contradictory, and the disposition of the matter is solely dependent upon the credibility of the parties. None of the judges who participated below saw or heard the witnesses, and they, as we, can proceed only on the record of the hearing before the chancellor. The majority of the judges comprising the court en banc found the testimony of the appellee and her witnesses to be credible and that of appellant and his witnesses not worthy of belief. Our review of this record leads us to the same conclusion reached by the majority of the court en banc, and we will not disturb its decree.
Decree affirmed, costs to be borne by appellant.
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