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Fuller v. Weaver, 175 Pa. 182. The Court below overlooked the burden of proof.

Hugh v. Keichline, 168 Pa. 115. The court below may be reversed on its findings of fact.

McConnell's Appeal, 97 Pa. 30. Coke's Appeal, 110 Pa., 65. Mayer's Appeal, 77 Pa., 482. Hindman's Appeal, 85 Pa. 466. H. Edgar Sherts, for appellee. It was shown that the decedent boarded with the claimant for which she had agreed to pay $100 a year and that some of it was not paid and the only question was how much of it had not been paid. There was ample evidence to justify the court in fixing the amount due at $470.

The findings of fact by the court below should not be disturbed on appeal. Stocker v. Hutter, 134 Pa. 19.

Brotherton Bros. v. Reynolds, 164 Pa.

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We may assume that two facts are established in this case. First, that a contract was made whereby decedent promised to pay to her son-in-law $100 a year for board and lodging; the other, that the services were performed according to the contract. There remains for the claimant to prove that the annual amounts are still unpaid. The claimant called one witness his daughter, who after establishing the contract to the satisfaction of the auditing Judge, testified further to certain matters which it is claimed overcome the presumption of payment. The Court considered her testimony sufficient. If that conclusion was warranted by the facts it must be regarded as ending the matter.

In considering the question we note that the services were begun October 1903 and ended April 1912; that Mrs. Shenk died January 1913; that her entire estate went to her son the appellant and the wife of the claimant received nothing and that between April 1912 and

January 1913 no demand was made on her although she had the means wherewith to pay and her son-in-law knew it and that at the time she left her son-inlaw she claimed she owed nothing and although appellant convinced her that she was in error as to this, there was no admission on her part that she owed anything excepting $10.00 and no definite claim was made upon her at that time. To overcome the uncertainity which such a state of facts brought with it, the claimant attempts to show the unlikelihood of the payments having been made annually and argues that the facts as produced warrant the inference that they still remain unpaid. According to the testimony of the claimant's daughter who was nine years of age at the time the contract was made, her grandmother then had $1250 in bank certificates drawing four per cent interest and when she left claimant's home she still had $1105. The argument is that had she paid the annual sum during the year she boarded with the claimant, her savings would necessarily have been diminished to the extent of the payments. It is argued not that she could not pay but that the state of her finances at the end shows that she did not. To give this argument any force it was incumbent on the claimant to show that the certificates were her only source of income. Putting aside the unlikelihood of a girl having that intimate knowledge of her grandmother's affairs, we find upon reading her testimony that it cannot be termed satisfactory and convincing. Upon cross examination of the witness the following colloquy ensued: Q. How can you swear that everything that this old lady owed your father or your mother was not paid to him; do you know of your own personal knowledge? A. Yes. Q. How? A. I never saw her pay him, and I can take my father's and mother's wordthey told me she had not paid them. Q. That is what you mean when you say you know, because they told you, A. Yes, sir, and she told me herself. Q. As a matter of fact, you never saw any money paid over? A. Yes, sir. Q. How often? A. Twice. Q. Then you don't know whether fifty or seventy-five

dollars was paid except as your father and mother told you? A. And what she told me herself. I would see her give him money as she got in money. And he would ask her for board, and she would say, no, she had bills she must pay, but next year she would give it to him. Q. Then you don't know at all how much was paid? A. The only thing I know at all was paid was the hundred and forty dollars. Q. That is all you know was paid? A. Yes, sir. Q. How do you know that your grandmother had only the $1250? A. I seen the certificates. Q. How do you know she didn't have money besides that. A. I don't know, but I am sure she didn't. Q. You know she had $1250 of her money on certificates, but whether she had five or six hundred dollars more, you don't know? A. No, sir.

The trouble with the whole matter

is that the amount of appellee's claim, when we try to ascertain it by competent testimony is indefinite and unascertainable. The only way any precise result is reached is by recourse to the claim itself, which is not evidence. The conclusion of the lower court was expressed as follows," The testimony as a whole seems to have justified the award." Under our decisions it requires more than a semblance of proof to establish such They require strict proof: Rosencrance v. Johnson, 191 Pa. 520; Carpenter v. Hays, 153 Pa. 432; Mueller's Estate, 159 Pa. 590; Hughes' Estate, 176 Pa. 387.

claims.

The decree must be reversed on the ground that the claimant has not overcome the presumption that the board bill was paid by the decedent in her lifetime and that while there may be an inference that something is due him there. is no evidence to establish what amount

remains unpaid. The appellant admits that the $10.00 is due the appellee and that sum should be awarded to him.

The decree of the lower court is reversed and the record is remitted to the Orphans' Court to distribute the fund in accordance to this decree; the costs of this appeal to be paid by the appellee.

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The court will not decree a dissolution of

partnership, etc., where the uncorroborated testimony of a plaintiff is that he sold to the defendant a half interest in a manufacturing business for a stipulated sum without an express partnership agreement, but that a division of profits was agreed upon and that they attended fairs together and the defendant stated publicly that he was a partner, all of which is denied by the defendant, who claims that the money paid was loaned, and no third parties are interested.

Appointments of receivers are not a matter of right even where partnerships exist, but are within the sound discretion of the court and will not be made where no good purpose would be served.

Bill in equity for decree of dissolution of partnership, receivership, etc. C. P. of Lancaster County, Equity Docket No. 6, page 42.

Charles W. Eaby, for plaintiff. H. Edgar Sherts, for defendant. March 27, 1915. Opinion by HASSLER, J.

From the bill, answer and testimony, we find the following facts:

FINDINGS OF FACT.

1. Amos F. Sweigart, prior to March 20, 1911. was trading and doing busiManufacturing Co. at Gordonville, Pa. ness by and under the name of the S. G. The business consisted of manufacturing date he has continued to manufacture and selling poultry fountains. Since that and sell poultry fountains, and other articles of a similar nature.

2. Some time prior to the third Monday in September 1914, and prior to the date of filing this bill by the plaintiff,

S. F. Sweigart, the defendant, brought suit in this Court to September Term 1914, No. 34, to recover from the defendant the sum of $1500 which he claims to have loaned to him or paid for him at different times.

3. That the assets of the S. G. Manufacturing Co. now remaining in the Company's place of business at Gordonville, Pa., are worth about $1,000, and consist of finished and unfinished poultry fountains, machinery, tools, a gas engine, a dynamo, raw material and uncollected book accounts. These are now in the control and possession of the plaintiff. It is not alleged, nor was there any proof, that the said S. G. Manufacturing Company owes anything to any one, nor that any of the assets of the S. G. Manufacturing Company are in possession of the defendant. We find as a fact that the S. G. Manufacturing Company has no creditors, and that none of the assets are in the possession of the defendant.

4. No express contract was made between the plaintiff and the defendant to form a partnership for conducting the business of the said S. G. Manufacturing Company. It is not alleged in the bill that any express contract was made to this effect, and the answer denies that there ever was such a contract. The testimony supports the averment of the answer in this particular. No acts of the parties have been shown in the testimony, from which a contract to form a partnership could be implied, at least so far as any question between the parties is concerned. Whatever effect their actions might have as to rendering them liable to third parties, as partners does not arise here, as it has not been shown that any third parties are interested in the affairs of the S. G. Manufacturing Company.

or some or all of them in lawful commerce and divide the profits between them. The contract can be expressed or implied, but it must result from a contract. As to third parties one may be held liable as a partner by implication of law, even though he has made no contract to become one. The reason for this is that by his actions he may have led third parties to believe that he was a partner and thus have induced them to give credit to the partnership when they otherwise would not have done so: Gibb's Estate. Hallstead's Appeal, 157 Pa. 70; Dunham v. Loverock, 158 Pa. 197.

Where a question of alleged partnership arises between alleged partners, and the interests of third persons are not involved much stronger proof is required to establish its existence than when the question arises between alleged partners and third persons: Tillinghast v. Berkery, 10 York 129.

The plaintiff in his bill does not allege that any express contract was made between the defendant and himself to form a partnership. on March 20, 1911 he sold to the deHe alleges that fendant" The one half interest of, in, and to the said S. G. Manufacturing Company at and for the sum of $1500," and that afterwards they continued to conduct the business of said Company. In his testimony the plaintiff testified that on March 20, 1911, he sold to the defendant, "The one half interest in the machinery, the materials and goods that were inside the building of the S. G. Manufactory for $1500." This he said was paid by cancelling an indebtedness of $135 for a horse, $15 for a loan, $150 in cash, and payment of a note for $1200, of which the plaintiff was the maker and the defendant was surety. Nowhere else in his testimony in chief does he testify to any expressed agreement or acts from which a contract of partnership can be implied. In his cross examination he says that it was said at the time we were to divide the profits; that the defendant visited county fairs A partnership is defined to be a con- with him and stated publicly that he tract between two or more partners who was a partner, but that no change was place their money, effects, labor or skill,made in the name, account books, or

CONCLUSIONS OF LAW.

1. Whether a partnership between the parties has been alleged or shown by the testimony is rather a question of law, though we have found as a fact that none was proven.

bank account. The plaintiff is not cor- [ for that purpose, he says, with defendroborated in this testimony. Without ant's consent, which the defendant denies. explanation these facts might be such circumstances as would have bound the defendant as a partner to third persons who gave credit to the firm because they believed the defendant to be a partner, but as between the parties no contract of partnership can be implied from them.

Several witnesses were called who testified that the defendant delivered fountains to them to be sold, or spoke to them about selling them; that a check in payment of one fountain was left at his house, and at one fair he told a witness that we were going to use an old church buildings to make the fountains in." Most of this testimony is denied by the defendant, and none of it either standing alone or taken in connection with the plaintiff's testi..ony would justify us in finding there was an implied contract between these parties to form a partnership.

The defendant denies in his answer that any contract of partnership was made between the plaintiff and himself. He says the $1500 was loaned to the defendant, or paid for him, $1200 on the note upon which he was security, because the plaintiff, who was his brother, requested it, and the bank was not entirely satisfied to continue it; that his acts in helping his brother in his business were acts of kindness, and not done because any partnership was formed or contemplated.

Isaac Sweigart, the defendant's son, testified that he went to the place where the business was conducted to see if he would be willing to go into partnership, but he was not satisfied, after spending a few weeks there, and refused to form a partnership. More than a year after this, viz. in December 1912 the plaintiff asked John Sweigart, another brother, to go into partnership with him. in this business.

In addition, we have plaintiff's own testimony that he conducted business in the same building on his own account, making a fountain similar to the S. G. and other articles of a similar nature, and that he used all the material on hand

From all of these facts we could not find that the parties entered into a contract, either expressed or implied, to form a partnership to conduct the business of manufacturing and selling the S. G. fountain.

2. We cannot decree the dissolution of a partnership which we find does not exist. The only purpose for which this is asked appears to be that we may decide that the $1500 which the defendant claims from the plaintiff, and for which suit is pending in this Court, was paid for an interest in this business, and not loaned to the plaintiff as the defendant claims. This had better be decided in the trial of that case.

3. Appointments of receivers are not a matter of right, even where partnerships exist. It is in the sound discretion of the Court where such applications shall be made to appoint receivers, and should not be done where it can serve no good purpose: McDonough v. Bullock, 2 Pearson 191; Schoenberger v. Ruth, 17 L. L. R. 92; Sloan v. Moore, 37 Pa. 217. In this case the assets are all in possession of the plaintiff, none being alleged to be in possession of the defendant. No third parties as creditors, or in any other way, are interested. The defendant denies the existence of a partnership. Under such circumstances the plaintiff can dispose of the assets and appropriate them to his own use, and cannot be disturbed in so doing by the defendant, who denies the existence of a partnership. Even though a partnership were proven we would not appoint a receiver under these circumstances, as no good purpose could be served by doing so. We, therefore, dismiss the bill at plaintiff's costs.

The Plaintiff submits the follows requests for findings of fact:

I. That on March 20, 1911, Amos F. Sweigart sold to S. F. Sweigart the one half interest of, in and to the S. G. Manufacturing Company located at Gordonville, Pa. Answer.

fact.

We refuse to find this as a

2. That from and after March 20,

1911, Amos F. Sweigart and S. F. Swei- | proper measure of damages is the differ

gart, as partners conducted the business of the S. G. Manufacturing Company.

Answer. fact.

We refuse to find this as a

Common Pleas--Law

Pearce v. Martin.

ence between the price paid and the value of the horse if he was not as warranted. We agree with the defendant in this contention, and, if we were not able to reduce the verdict, would be compelled to grant a new trial. The verdict, however, shows that the jury awarded to the plaintiff all that he asked, viz.: the difference between the price paid and the value of the horse, and also the expenditures incurred. We can, therefore, reduce the verdict to the amount shown

Vendor and vendee-Warranty of horse by the testimony to be the difference be-Damages.

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Rule for a new trial. C. P. of Lancaster Co. October Term, 1913, No. 46.

Amos E. Burkholder and John E. Malone, for defendant and rule.

Chas. W. Eaby, contra.

March 27, 1915. Opinion by HASSLER, J.

The testimony at the trial of this case showed that the plaintiff purchased a horse from the defendant which was warranted to be sound. When the plaintiff discovered that the horse was not as warranted he returned it to the defendant, who refused to receive it. It was subsequently sold at public sale. The price which plaintiff paid for the horse was $115, and the price for which he sold it was $60, which was shown to be its value.

The plaintiff was permitted to show that he had incurred expense to the amount of $16.85 in returning and selling the horse. The jury returned a verdict of $71.85, being the amount of these expenditures and the difference between the price paid for the horse and his value. when found that he was not as warranted.

The only reason urged in support of this application for a new trial is that the plaintiff is not entitled to recover for the expenditures incurred, but that the

tween the price paid and the value of the horse, when it was discovered that he We, therefore, discharge the rule for a was not as warranted, which is $55. new trial if the plaintiff within ten days of filing this opinion remit all of the rule is made absolute. verdict in excess of $55. Otherwise the

Lilly D. Weitzel v. Joseph D. Black, Manager of Lancaster Storage Company. Mistake in naming defendant-Variance -Issue-Practice.

The plaintiff brought an action before a magistrate against "Joseph D. Black, Manager of the Lancaster Storage Co.," and obtained judgment, from which Black appealed. The plaintiff's statement claimed damages from

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The Lancaster Storage Co., Joseph D. Black manager." Joseph D. Black filed a plea and defense, and the verdict was against "Joseph the Lancaster Storage Co. filed an affidavit of D. Black, manager of the Lancaster Storage Co." On motion to set it aside,

Held, that the issue was formed by the and was between the plaintiff and Joseph D. statement and the plea, and not the affidavit, Black, and, not being supported by the evidence, should be set aside.

ment for defendant n. o. v.
Rules for a new trial and for judg-
C. P. of
Lancaster County, April Term 1911,
No. 63.

H. M. Houser, for rules.
B. F. Davis, contra.

March 27, 1915. Opinion by HASSLER, J.

The plaintiff brought this action against Joseph D. Black, Manager of

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