Appeal from judgment of County Court of Philadelphia, Dec. T., 1963, No. 15247B, in case of J. Wayne Lee v. Warren Potter.
Stanton A. Berkowitz, with him James A. Burgess, Jr., for appellant.
Morris R. Brooke, with him Drinker, Biddle & Reath, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Montgomery, J. Opinion by Hoffman, J., Concurring in Part and Dissenting in Part.
[ 214 Pa. Super. Page 199]
In an action of assumpsit plaintiff-appellee J. Wayne Lee sought to recover $3,000 from defendant-appellant
[ 214 Pa. Super. Page 200]
Warren Potter, allegedly loaned to him and not repaid. The sum claimed was alleged to have been paid to defendant at two different times. Two thousand dollars ($2,000) was paid on or about October 21, 1963, under the following alleged condition, ". . . in order to induce plaintiff to make it, the defendant made certain false and fraudulent representations to plaintiff including a representation that he, the defendant, would make plaintiff a partner in his business. At the time he made the representation and secured the loan the defendant had no intention of making plaintiff a partner in his business, and he never did so."
The additional sum of $1,000 was alleged to have been loaned to defendant on or about November 27, 1963.
By way of answer the defendant admits receiving the $1,000 loan but alleges that it was agreed between them that it would be repaid from the profits of a corporation then being formed by the parties to be known as the Lee Chemical Company, Inc. (which was subsequently changed to Hill Chemical Company, Inc.).
As to the other $2,000, the defendant denies that he received it as a loan and avers that it was paid pursuant to a verbal agreement whereby the plaintiff and the defendant were to form a New Jersey corporation to be known as Aireactor Sales & Service, Inc., for the franchised production and sale of Aireactor products in the states of New Jersey and Delaware, and a second Pennsylvania corporation for the sale of the same products in Pennsylvania; that plaintiff and defendant were to invest $5,000 each in exchange for one half the capital stock in both corporations for each; that plaintiff paid $2,400, the $2,000 aforementioned and an additional $400 into the Aireactor account,
[ 214 Pa. Super. Page 201]
but that plaintiff has failed to pay the balance of $2,600 due for his stock in said ...