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FEINGOLD v. DAVIS (10/12/71)

decided: October 12, 1971.

FEINGOLD, APPELLANT,
v.
DAVIS



Appeal from decree of Court of Common Pleas of Luzerne County, Dec. T., 1966, No. 11, in case of George J. Feingold v. William S. Davis and Charlotte M. Davis, a/k/a Charlotte P. Davis.

COUNSEL

Mitchell Jenkins, with him Rosenn, Jenkins & Greenwald, for appellant.

Joseph B. Farrell, for appellee.

Richard A. Kane, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Cohen took no part in the decision of this case. Mr. Justice Roberts took no part in the consideration or decision of this case.

Author: Pomeroy

[ 444 Pa. Page 339]

The question presented by this appeal is whether the court below erred in refusing to grant a mandatory

[ 444 Pa. Page 340]

    injunction compelling appellees to execute and deliver to appellant appropriate instruments of conveyance of the business conducted by them known as "Davis Nursing Home", together with the real estate owned and used by them in connection with said "business."

The salient facts found by the chancellor, which are unchallenged, are as follows:

Appellees, William S. Davis and Charlotte Davis, are a husband and wife who in 1959, with funds derived from the sale of jointly owned real estate, purchased land in Luzerne County as tenants by the entireties with a view to establishing thereon a nursing home. A building for the purpose was constructed the same year, and thereafter operated by them under the names of "Davis Nursing Home", "Davis Convalescent Home", and "Davis Nursing and Convalescent Home".*fn1 Appellees maintained two bank accounts, each entitled "Davis Convalescent Home," with authority in both to withdraw monies. Charlotte Davis exercised functions of management and control of the "joint business", and ran the business, particularly when Mr. Davis was away.

In May, 1966 William S. Davis listed the nursing home with one Irving Levin, a New York real estate broker, for sale. Soon thereafter Mr. Levin procured appellant as a prospective purchaser, and a "binder agreement" was entered into, signed by appellant as purchaser, appellee William S. Davis as "Seller (Owner)", and Mr. Levin as broker. The agreement was not signed by ...


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