Keller v. Swartz

20 A. 627, 137 Pa. 65, 1890 Pa. LEXIS 952

• Court: Supreme Court of Pennsylvania
• Decided: October 6, 1890
• Docket: No. 297
• Status: Published

Opinion

Opinion,

Mr. Justice Green:

We do not regard it as clearly established by the testimony that the relationship between the parties as to the subject-matter of their transactions was a technical partnership. There was certainly a joint interest, as two persons may readily have in a common property, real or personal. As the business to be transacted was to be done by third persons, it was not the ordinary case of joint contribution to a common fund representing capital, in the management of which the two contributors were to participate directly, but rather the case of an agreement by each one to furnish an equal amount of money, or money’s worth, to the third persons who were really to conduct the business contemplated. The alleged relation of partnership was denied by the answer, and also by the defendant in his testimony, and was rather feebly expressed by the plaintiff in his testimony, and that, rather as an inference from the joint character of the enterprise, than as a fact distinctly agreed upon. But it is unnecessary to enlarge upon this subject, as the decision of the ease does not depend upon it.

There did come a time, after all the purchases of stock had been made, when a very momentous question arose, which required prompt decision. In the last days of July, the parties consented, though reluctantly, to purchase 2000 shares of Hestonville stock, at the instance and urgent request of Bond, Moxey & Co., in order to help them comer the market. For this stock they paid $41 a share. The very next day, Bond, Moxey & Co. failed, and the guaranty they had given to Swartz and Keller, to save them from loss, became worthless. The stock immediately fell to $29, and was somewhat lower than that continuously during the month following. On the 24th of August, the parties were together, and, if the testimony of the defendant is to be believed, a conversation of the utmost consequence to the parties and to this litigation took place between them.

This is the defendant’s version of it: “ On the 24th of August, 1876, Keller called at my house in Lancaster, in the evening. We discussed the market. I said the stock was weak; I could see it declining every day, it was too much like cutting off a dog’s tail, inch by inch. Keller said, ‘ Well, you may sell your stock on your own account, and I will hold mine yet for a rise.’ He made similar remarks several times that evening, and my wife was present in the room when the remarks were made. On the following Monday, August 28, 1876, he was again at my house, in the evening. I said to him, ‘ I want to sell my stock.’ He said, ‘ Well, you may sell yours if you choose, but I will not sell yet. It will rise again.’ I said, ‘ Yes; it may rise again .some time, but it now looks more like declining.’ He said, ‘Well, I have nothing to do with your stock. You sell yours, and I will hold mine, and see which of us will do the best.’ Mrs. Swartz was present. I considered it perfectly well understood between us, from what he had said, that he had nothing to do with my stock, nor I with his. I then commenced to sell stock. On August 31st, 1876,1 sold 200 shares at $24; on September 5th, 1876,1 sold 100 shares, at $25 per share; and on September 8th, 100 shares, at $25.50 per share. I made these sales by giving my individual order to Reed, MeGrann & Co., and particularly called their attention to the fact that it was my individual order; that I was selling my own stock, and that it had nothing to do with Keller’s stock. After selling this 400 shares, I met Mr. Keller in North Duke street, near the railroad bridge, towards evening, and told him I had sold 400 shares of stock. He said, ‘Well you may sell all of yours for what I care, but I won’t sell yet,’ and gave some reasons why he thought it would rise again, something he had heard in Philadelphia; I think it was about the management of the company. I then, between that time and the 27th January, 1877, at different times, sold all my stock except fifty shares. It was all sold by my individual order to Reed, Mc-Grann & Co., and, every time I gave an order, I called their attention to the fact that I was selling my stock on my account, and it had nothing to do with Keller’s stock.” The witness then testified to some conversations with Mr. Reed of the firm of Reed, McGrann & Co. He described the full extent of his share of the purchases, the aggregate amount thereof, the manner in which he made payment for them, and a full settlement he had with Reed, McGrann & Co., for his whole share of the business, which resulted in his paying them $6,777.93, made up of various cash payments, and a note for $3,000, on June 25, 1878, in full, which note he subsequently paid.

Mrs. Swartz, the defendant’s wife, was also examined, and testified as follows on this subject: “ In my husband’s office, in Lancaster, about three weeks after the 1st of August, six years ago, — that is, six years ago last August, — Mr. Swartz commenced to talk to Mr. Keller about Hestonville. Mr. Swartz said, ‘ I am going to sell,’ and Mr. Keller said, 6 You can do with yours what you please, but I won’t sell mine.’ Then he went out of the door; with his hand on the door-knob, he said, ‘ You can just do with yours as you please,’ and he laughed when he said it. About four or five days after that, about the same time, (supper time,) he was either coming from or going to his home, he told Mr. Swartz about the same thing, except that he said he was going to keep his for a rise; and that is all I remember.”

The learned master, Mr. Slaymaker, makes the following finding upon this part of the case : “ Making all due allowance for the fact that this witness is the wife of the defendant, and also for the improbability of her being able to detail with absolute verbal accuracy conversations which had occurred more than six years previously, the master is persuaded that her statement is substantially true, and that the result of the conferences between Keller and Swartz was that each should control and dispose of, at his discretion, the one half of the Hestonville stock yet in the hands of Reed, McGrann & Co.” He therefore finds in favor of the defendant on this most vital part of the case, but he declines to make any application of his finding, for a reason which he thus states : “ This understanding, however, was not followed by any attempt on the part of either the plaintiff or the defendant to procure for himself the actual separate possession or control of the evidences of ownership of any portion of this stock, nor by any change in their account with Reed, McGrann & Co., that account remaining at the close of the business precisely as it had been opened, the account of that firm with Swartz & Keller jointly; and the proceeds of all subsequent sales of this stock, whether on orders of Swartz individually or Keller individually, or either in the name of both, were alike carried into the joint account as credits thereupon.”

To this method of disposing of this branch of the case, we are entirely unable to agree, and fór various reasons. In the first place, it was no part of the agreement between Keller and Swartz that each one might dispose of his one half part of the stock; that the shares of stock themselves should be taken up from Reed, McGrann & Co. That could not have been done without paying for them, and this would have rendered necessary the payment of an immense sum of money, which it may well be neither of them could pay. But it was selling the stock, and not paying for it, that Swartz and his wife testified was to be done, and the master has found that such was their agreement. They were therefore not to separate it and take it up, but each was to be at perfect liberty to sell his one half of the stock as he pleased. In point of fact, Swartz immediately proceeded to sell his stock at his own prices and on his individual orders, and he kept on doing so until within five months he had sold all but fifty shares. During the same time, Keller kept his, and made no sales until February 5, 1878, nearly a year and a half after Swartz began to sell his. In the next place, these parties had nothing to do with the manner in which Reed, McGrann & Co. kept the account with them on their boobs. They could not have controlled the manner of keeping it if they would. It was not their business, and any attempt on their part to interfere with the book-keeping of Reed, Mc-Grann & Co. wduld doubtless have been resented. For this reason, it is plain that the fact that no change was made by Reed, McGrann & Co., in their manner of keeping their account of these transactions, affords no inference against Swartz, either as to the integrity of his testimony, or as evidence that he failed to cany out, or abandoned, his purpose of selling his part of the stock as he had arranged with Keller that he might do. The reasons given by the master, therefore, for declining to give effect to the agreement for the sale of the stock by each, are not sustained by tbe considerations which he states himself, and when the testimony and the other subsequent facts are taken into account, he is, in our judgment, convicted of plain error in his treatment of the case.

The master takes no notice of the testimony of the defendant, and yet it is precise, very full, distinct, and emphatic to the point that it was absolutely agreed upon between him and Keller that he, Swartz, should be at liberty to sell his stock as he pleased. The conversations in which this agreement was arrived at were specified, together with the times, the place, the circumstances, the words, and all the details of what was said and agreed upon. They amounted to a clear, distinct, and positive agreement that the defendant, Swartz, should be at liberty to sell his part of the stock just as he pleased, and that he, Keller, would not sell his part, but hold it for a rise. Although Keller had ample opportunity to deny the truth of Swartz’s testimony, he never did so, and the case was closed without any contradiction of Swartz’s statements by Keller. He was, moreover, corroborated by his wife’s evidence as to the part of the conversation heard by her. He made a general denial of having ever agreed to divide the stock, or that each should sell his half of it, in reply to one question, after Mrs. Swartz was examined but before the defendant testified, but, after the defendant testified, giving full particulars of the conversations, he never opened his lips. In such circumstances the general denial goes for nothing. It means nothing more, really, than that in his opinion he never made such an agreement. But the important question is, did the conversations testified to by the defendant occur as stated by him ? On that subject, the plaintiff says nothing. The case stands, then, with this positive, affirmative, most vital testimony in it, corroborated by defendant’s wife, and not one word in contradiction of it from the plaintiff. We know of no reason why this testimony should be disbelieved, but there are the strongest possible reasons for giving it full credence. It was intrinsically probable. There had been a heavy fall in the price of the stock,, and a crisis in the speculation confronted the parties with every appearance of a very heavy loss in the near future. The master does find that there were differences of opinion between the parties as to the policy that should be pursued, and that Swartz was anxious to sell as speedily as possible, and that Keller was inclined to hold on for higher prices. He also finds that they had several conferences, and adds, “as to the conversations at which, their statements differ widely and materially.” The writer has read every particle of the testimony of both the parties, and finds that there is no evidence of any conferences or any conversations, in the testimony of the plaintiff, on the subject of dividing or holding or selling the stock as stated by the defendant. The plaintiff simply gave no testimony on that subject, and it is error, therefore, to say that the statements of the parties ■differ widely and materially in reference to that matter.

But perhaps the most convincing proof in support of the defendant’s testimony as to the sale of the stock by each is found in the subsequent facts about which there is no dispute. The defendant immediately proceeded to do precisely what he says the plaintiff agreed he might do; that is, made sales of his stock rapidly. He swears that all these sales were made on, his own individual orders, and no one contradicts him. He •also says he notified Reed, McGrann & Co. that these sales were ordered as to his own part of the stock, and that Keller had nothing to do with them, and no one contradicts him. He also says that he made payments, after he was credited with proceeds of sales, until a balance of $6,777.93 resulted against him, as appears by a memorandum in the handwriting of George K. Reed which Swartz produced. That memorandum is in the following words and figures:

Swartz owes on acc. . . . . . $ 8,897 40

Inst, to January 1, 1878, .... 1,880 53

$10,777 93

4,000

$ 6,777 93

He testifies: “On the 1st of January, 1878, Geo. K. Reed, in his own handwriting, (Geo. K. Reed was a member of the firm of Reed, McGrann & Co.,) gave me a memorandum, which I here produce, marked ‘ A. S. December 28th, No. 1.’ On this memorandum he figured up that I owed their firm on my stock $6,777.93, which sum I gradually paid them, and the balance on June 25, 1878, was $3,000, for which I gave them my note. The note was renewed several times; was at one time reduced to $2,700, and finally paid, June 18, 1879.”

In all of this most important testimony the defendant is not in the least degree contradicted by any witness. It shows in the most ample manner that from.August 24, 1876, in making sales and in dealing with Swartz, the firm of Reed, McGrann & Co. did in fact treat the sales as made upon his individual account, and finally settled with him by accepting from him a certain sum in cash and a note for the balance of $3,000, and this although there was a large balance open on their books against the account of Swartz & Keller. In the meantime Keller did precisely what Swartz testified he said he would do; that is, held on to his part of the stock, and made no sales thereof until February, 1878. Sales were subsequently made, and the account was kept open until, on October 18, 1881, the balance of the account was $9,835, which John Keller paid by giving his check for $1,835.50, and his note for $8,000.

It is simply impossible to discredit the testimony of the defendant in the face of facts like these. They show with conclusive force that subsequently to August 24, 1876, the sales made on the orders of the defendant were treated by all the parties as sales made for his account, and that on that basis an adjustment was finally made with him by Reed, McGrann & .Co. And they show, also, that the remaining sales were regarded by all the parties as made upon account of Keller, and that the account with him was adjusted upon that basis in October, 1881. It is not alleged by Keller that he ever undertook to interfere with the sales by Swartz, or that Swartz ever interfered with the sales by Keller. Yet, if, in point of fact, each continued to be interested in the whole amount of stock held by Reed, McGrann & Co., it is impossible to believe that no active intervention would have been made, no conferences would have taken place between the parties; in short, that nothing whatever would have been done to indicate their joint interest. Each proceeded after August, 1876, in precise accordance with what Swartz testified they had agreed upon at that time, and neither of them proceeded upon the theory of a continuing joint interest. Finally, Keller settled the whole balance of the account with Reed, McGrann & Co., without calling upon Swartz for any contribution. It was not until June, 1882, that Keller filed his bill in this case, nearly six years after the time fixed by Swartz as the date of tbe separation of their interests, and more tban four years after the great bulk of the stocks held by Keller was sold. Such delay in such a matter, and involving such large amounts, is laches, and is only consistent with the theory that the idea of holding Swartz responsible for the loss which was incurred on the sales made by Keller was an after-thought. The integrity of that claim is opposed to the whole force of the direct and positive testimony of the defendant and his wife, which testimony was entirely uncontradicted by the plaintiff or any one else; it is opposed to the actual facts as they subsequently transpired in regard to the dealings of both parties with the stock held by Reed, McGrrann & Co.; it is opposed to the actual conduct of both the litigants in making their settlements with their brokers; and it is opposed to the teachings of common sense as to what two parties so situated would have done, if their interests had not been separated but continued joint.

We are of opinion that the claim of the plaintiff is entirely destitute of merit, and for that reason his bill should be dismissed. It is unnecessary to discuss the question whether the transactions as between the plaintiff and defendant were of a gambling character, because the case is disposed of upon other considerations.

The decree of the court below is reversed, at the cost of the appellee, and the plaintiff’s bill is dismissed, with costs.