Barclay v. Barclay

79 A. 667, 230 Pa. 467, 1911 Pa. LEXIS 632

• Court: Supreme Court of Pennsylvania
• Decided: February 27, 1911
• Docket: Appeal, No. 113
• Status: Published

Opinion

Opinion by

Mr. Justice Fell,

■ We do not find that the record in this case raises the question elaborately argued on behalf of the appellant, whether a decree, pro confesso, for want of an appear anee, entered against one of the defendants in a bill for ..a partnership accounting estops him in a subsequent proceeding between the same parties from denying that he was a partner. This action was brought in 1907 to recover on obligations of a partnership given to the plaintiff in 1868 and 1869. The main ground of defense was that the plaintiff was a member of the partnership when the obligations were given and therefore could not maintain an action until there had been a partnership accounting. In support of this ground the defendant offered in evidence the record of a proceeding in equity for a partnership accounting in which the plaintiff in this action was one of the defendants, in which a decree, pro confesso, for want of an appearance, was entered against him. When the offer was made, it was stated that the purpose was to establish an estoppel. A general objection was made to the offer, but the plaintiff’s counsel said that he made no objection to the admission of the record as proof of an admission by the plaintiff in this action. The evidence was admitted and was treated only as an admission against interest. If it had been regarded as an estoppel, it would have ended the case. After its admission, the plaintiff notwithstanding an objection by the defendant was allowed to testify that he had not been a member of the firm. The record was referred to in the charge as an item of evidence merely, and it was submitted to the jury with the other evidence on the question of partnership.

The defendants in this action were John K. Barclay and The Philadelphia Trust, Safe Deposit & Insurance Company, Administrator of Samuel G. DeCoursey, late trading as Barclay & Barclay. A verdict was directed in favor of the administrator on proof by it of a record of the orphans’ court which showed that the identical claim on which this action is based was presented to that court at the audit of the administrator’s account, and disallowed, and that the adjudication of the auditing judge was confirmed by the court in banc. The decree of the orphans’ court was affirmed by this court in DeCoursey’s Estate, 211 Pa. 92. It is argued that the orphans’ court disallowed the claim because it was without jurisdiction and that its decree was final as to that matter only, and did not affect the right of the plaintiff in any other proceeding to recover on the merits of his claim. We do not find that this contention is sustained by the record of the orphans’ court. The claim was disallowed by the auditing judge because it was barred by the presumption of payment, the claim being then thirty-six years old; and because the evidence showed that the claimant was a member of the firm of Barclay & Barclay and that the amount which he claimed was carried on the books of the firm to his credit, blended with other moneys arising from his share of profits and that his interest in the partnership had been sold at sheriff’s sale. The adjudication ends as follows: “Thus, it would seem, all possibility of right on the part of William K. Barclay as against the firm of which he was a member or as against either of his former partners has been completely eliminated.” This was a direct finding as to the validity of the claim against the decedent’s estate. It is true that the orphans’ court has no jurisdiction to settle a partnership account: Miller’s Estate, 136 Pa. 239; Weigley v. Coffman, 144 Pa. 489, and it did not undertake to do so. But it had jurisdiction to consider the demand of one claiming as a firm creditor against the estate of a deceased partner. This it did and its decree is conclusive.

We find no merit in any of the assignments and the judg-. ment is affirmed.