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FRIEDLAND v. WEINSTEIN (03/15/68)

decided: March 15, 1968.

FRIEDLAND, APPELLANT,
v.
WEINSTEIN



Appeal from decree of Court of Common Pleas of Delaware County, No. 11,076 of 1963, in case of George Friedland v. Matthew B. Weinstein and Rosalie Weinstein, individually and trading as St. Davids Company, and Rosemont Construction Company, Inc.

COUNSEL

Harold E. Kohn, with him Harry Shapiro, David N. Bressler, and Dilworth, Paxson, Kalish, Kohn & Levy, for appellant.

David F. Maxwell, with him Obermayer, Rebmann, Maxwell & Hippel, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Dissenting Opinion by Mr. Justice Cohen. Mr. Justice Eagen joins in this dissenting opinion.

Author: Per Curiam

[ 429 Pa. Page 348]

This is an action in equity instituted by George Friedland against Matthew B. Weinstein and Rosalie Weinstein, individually and trading as St. Davids Company and Rosemont Construction Company. In the interests of brevity and clarity, the defendants will be referred to as "Weinstein," it being admitted that Matthew B. Weinstein is the principal defendant. Friedland

[ 429 Pa. Page 349]

    claims that he was entitled to a share of profits made by Weinstein on the sale of certain property because, according to Friedland, Weinstein acquired those profits in breach of a fiduciary obligation owing Friedland as a co-joint venturer.

The chancellor entered a decree nisi dismissing the complaint. After exceptions filed by Friedland, the court en banc affirmed the dismissal and the decree was made final. Friedland appealed.

The facts follow. The Weinsteins owned a 56-acre tract in Radnor Township, Delaware County along the Lancaster Pike and Radnor-Chester Road, on which they built a motor inn and two office buildings, one being occupied by the General Electric Company and the other by the Burroughs Corporation. They had developed 21 of the 56 acres by January 27, 1960, when they sold to Friedland an undivided one-half interest in the remaining undeveloped 35.559 acre tract, at $26,000 per acre, the parties agreeing that Weinstein would assume responsibility for the management and maintenance of the 35-acre tract, each paying one-half of the carrying charges.

In 1963, Sears-Roebuck & Company offered to buy this 35 acre tract, and Friedland and Weinstein asked $35,000 per acre. Sears refused to pay more than $34,000 and Friedland and Weinstein agreed to sell on that basis. Sears now decided that it also wanted to purchase a one-acre tract owned by the Weinsteins which was located between the building leased to General Electric and the Motor Inn. It therefore conditioned its offer to purchase the 35-acre tract upon acquiring the additional one-acre tract owned by the Weinsteins. Since this one-acre piece of land provided the means of ingress and egress to the other buildings already developed by the Weinsteins on the 21 acres, and as Sears' use of that one-acre tract would adversely affect,

[ 429 Pa. Page 350]

    in Weinstein's opinion, the already developed properties, Weinstein rejected Sears' proposal. ...


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