Lafferty v. Lafferty , 174 Pa. 536 ( 1896 )

Opinion by

Mr. Justice McCollum,

We are asked to quash this appeal on the ground that the order to account is interlocutory, and that the appeal is not within . the act of June 24, 1895, P. L. 243, which allows an appeal from an order to account where an account is demanded by the plaintiff and the right to it is denied by the defendant. There was no prayer by the plaintiff for an account in this case. What he asked for was an injunction restraining the defendants from disposing of the property mentioned in the bill, the appointment of a receiver to take charge of and sell the same under the direction of the court, and a distribution of the proceeds of the sale of it “ between plaintiff and defendants according to their respective rights in the same.” There does not appear to have been any dispute between the parties, before the master in regard to the distribution of the proceeds of the sale by the receiver of the property mentioned in the bill, but the defendants, alleging that the contract the plaintiff made with the railroad company in November, 1890, was an asset of the partnership, demanded that he account for it as such, and he, insisting that it was not a partnersliip asset, denied that he was liable to account to them for it. The master sustained the plaintiff’s ■contention but, upon exceptions to his report, the learned court below ordered that the plaintiff account to the -defendant “ for the value of the contract with the Pennsylvania Railroad and the .value of the expectancy of its renewal.” If the defendants had filed a cross bill for an account for the value of this contract and the plaintiff had denied their right to it, an order upon him to account would have been reviewable on appeal under the act of 1895. Why may not the defendants on whose request for an account the order in question was made, be regarded as in the position of plaintiffs in a cross bill for it ? It is to the parties who deny the right to the account that is demanded of them, that the appeal is given. The defendants in the bill, by their demand upon the plaintiff for an account which he denied their right to have, are virtually the plaintiffs in the issue thus made, and the plaintiff in the bill is the defendant in the issue. It would be a narrow construction of the act of 1895, and would defeat the obvious purpose of it, to hold that, the right to appeal from an order to account depended upon the form in which the application for it was presented. The appeal in this case is clearly within the spirit of the act, and it seems to us therefore that the motion to quash it should be overruled.

Sometime in the fall of 1881, application was made to the Pennsylvania Railroad Company by Charles Lafferty, Sr., or by his son Charles H. Lafferty, and perhaps by both of them, for the work of handling its cars on Washington avenue. The appellees say that the work was obtained by their father and given to his sons, and the appellant says it was obtained by him individually. It is certain however that the work was done by the Lafferty brothers from the time it was obtained until the company gave them notice to withdraw from it on the 31st day of October, 1890. The notice was dated October 17,1890, and. addressed to Charles H. Lafferty, who communicated it to his brothers. The right of the company to terminate the work in this manner was not disputed. The permission to do it was verbally given to the person or persons who applied for it, and it is conceded by the parties to this litigation that the company could withdraw the permission so given at its pleasure. The arrangement or agreement between the Lafferty brothers respecting the performance of the work was based on this permission and was terminated by the withdrawal of it.

After it was withdrawn all that remained for them to do was to divide the proceeds of the work and their investment in it in accordance with their agreement. The work they did for the company was its work and they, in doing it, were practically in its service and liable, as we have seen, to dismissal from it at any moment. When therefore the company notified them of its intention “ to make other arrangements for the handling of cars on Washington avenue” and “to withdraw their teams from the avenue on and after October 31st, 1890,” there would seem to have been no basis for an expectation that the arrangement then existing would be continued or renewed. An expectancy of continuance or renewal that appeared to be groundless would certainly be worthless. The evidence on the hearing before the master tended very strongly to show that the manner in which the work was done by the Lafferty brothers was unsatisfactory to, and the subject of frequent complaint by the company, and that the notice to withdraw from it was the result of dissatisfaction with it.

Under the circumstances of the case we are unable to discover any legal or equitable ground for the order to account. The cases cited to sustain the order cannot be justly likened to the case in hand. They relate to leases which were admittedly partnership assets and to the expectation of renewal incident to them. In this case there was no lease but only a right or privi - lege to do certain work on certain terms during the pleasure of the party granting it.

In our view of the case Charles H. Lafferty was at liberty on the 1st of November, 1890, to enter into a contract with the Pennsylvania Railroad Company for handling its cars on Washington avenue or elsewhere without incurring thereby any liability to account to his brothers for the value of his contract or for any part of the proceeds of the work done under it. As the master has not appealed from the order or decree reducing his compensation for services we are not called upon to review it. We may say of it, however, that as the learned court below was in a position to know the nature and value of the services, its decree in this respect should not be reversed unless palpably unjust and a clear abuse of the sound discretion the court has in such matters.

The order of June 12,1895, requiring Charles H. Lafferty to “ account to the respondents for the value of the contract with the Pennsylvania Railroad and the value of the expectancy of its renewal,” is reversed at the cost of the appellees, and the record remitted with directions to the court below to enter a decree in accordance with this opinion.

Motion to quash appeal.

Opinion by

Mr. Justice McCollum,

March 30,1896:

For the reasons stated in opinion filed herewith, supra, p. 540, the motion to quash the appeal is overruled.