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ELIAS v. ELIAS (01/03/68)

decided: January 3, 1968.

ELIAS, APPELLANT,
v.
ELIAS



Appeal from decree of Court of Common Pleas No. 4 of Philadelphia County, March T., 1965, No. 6484, in case of Thomas John Elias v. Samuel John Elias and Mary Elias Dugdale.

COUNSEL

Joseph Matusow, with him Samuel J. Marks, for appellant.

David Weinstein, with him Weinstein and Bobrin, for appellees.

Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Jones and Mr. Justice O'Brien concur in the result. Mr. Chief Justice Bell took no part in the consideration or decision of this case.

Author: Musmanno

[ 428 Pa. Page 160]

John Elias, with his three sons, operated in Philadelphia a rug business. Being a strong-willed man, John kept exclusive custody of the books and records, and, from time to time, paid his sons such sums as he felt they were entitled to. This ironhanded system seemed to work well and the business flourished. In 1950 he died and his eldest son, William, picked up the scepter of control and ordered his brothers around as the father had done in his lifetime.

One of the brothers, Thomas, objected to this patriarchal treatment, and he particularly grumbled that his brother did not pay him enough. When William refused to increase his compensation, Thomas decided to augment his financial returns by withholding from his collections (he being the outside man) such sums as he, on the scales of his own appraisement, believed were properly due him. William objected to this method of self-payment, not only because it deprived him of the control he felt was necessary in order to operate a successful business, but also because Thomas took too much.

Accordingly, William re-arranged the operation of the business in such a way that Thomas no longer had opportunity to help himself at the till. Thomas resented this, what he assumed to be, a despotic interference with his rights as a partner. Tempers mounted between the two brothers and in the summer of 1957, the tensions broke out into a violent quarrel. Thomas argued that William so underpaid him that he had to take odd jobs to supplement his wages. William argued back that Thomas owed the partnership money for the covert sums he had withdrawn from the firm's cash register.

[ 428 Pa. Page 161]

In anger, Thomas stalked away from the partnership and was no longer heard from officially, for some eight years.

On March 29, 1965, William joined his father in eternal rest and Thomas now resurrected a claim against the partnership. He instituted an action in equity against his brother Samuel and his sister Mary Elias Dugdale, who had become a partner after her father's death, demanding that they pay him for his share in the partnership's assets.

The court, after taking testimony in this family eruption, concluded that both sides had gotten what they deserved. Time, the great assuager, had settled the issues with a fine sense of balance that even outdid Equity.

When Thomas left the partnership in 1957 and took no action against the firm he manifested an intention to relinquish his interest in the partnership; and, when William failed to pursue the partnership claims against Thomas for his alleged misappropriation of funds, the partnership evinced an intention to waive its rights with regard to any accounting from ...


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