Hessenbruch v. Markle

Opinion by

Mr. Justice Dean,

George B. Markle was indebted to his sister, Ida M. Hessenbruch, in the amount of two notes, aggregating the sum of $110,000, the notes being dated June 23,1893, payable in sixty days, with interest from July 1, 1893. On the same day, as collateral security for the debt, he delivered to his sister an assignment of one moiety of his interest in the partnership of C. B. Markle & Company, miners and shippers of coal in Luzerne county, with power to Mrs. Hessenbruch to sell said interest at public sale if default was made in payment; of the notes at maturity. George B. Markle paid neither principal nor interest on the notes up to November 4, 1893, when in the exercise of the power conferred upon her by the written assignment, after thirty days’ notice of her intention so to do, Mrs. Hessenbruch sold the collateral at public sale, and herself, indirectly, became the purchaser on a bid of $50,000. The other moiety of his interest had been assigned to Clora Markle, another sister, as security for a debt he owed to her. During the existence, previous to the assignment to Mrs. Hessenbruch, of the firm of George B. Markle & Company many dividends, payable to the partners, according to their respective interests, had been declared; that, on the George B. Markle interest had always been paid to him. After the assignment, the declared dividends upon his whole share, from October 7,1894, to July 1,1898, amounted to $107,375. Of this sum, each sister had drawn $10,937.50, leaving unpaid $85,500, one half of which, $42,750, belonged to each. George B. Markle set up, in hostility to his sister, Mrs. Hessenbruch, a claim to this money, and notified the partnership not to pay to her. Clora Markle asserted a right, not only to her own moiety, but to the one claimed by Mrs. Hessenbruch; she relied on certain assignments of his whole interest to to her by the brother, George, made June 5, 1896, and October 25, 1897. To avoid peril of mispayment, the partnership deposited the whole of the balance of the dividend, $85,500, with Drexel & Company, responsible bankers of Philadelphia, to be held by them until the disputed ownership of the dividends on George’s share was settled, either amicably or judicially. Mrs. Hessenbruch then filed this bill against defendants, setting out, more at length, substantially the facts as narrated, and praying that she be declared the owner of a moiety of George’s interest, and as such owner, that her right to receive the dividends on such moiety be judicially declared, and that the holders of the money be directed to pay the same to her.

The answer and cross-bill of Clora Markle, in substance, averred a parol agreement between Mrs. Hessenbruch and her brother which induced the written one, by which parol agreement, Mrs. Hessenbruch promised that her brother should retain the right to receive all dividends declared on his share, and that she wonld not exercise her power tó sell prior to September 1, 1897, without the consent of the brother; that as he had not given his consent the dividends on the whole share under the subsequent assignments had passed to her.

The answer of the firm and remaining partners is, that dividends had been declared out of profits from time to time, and paid over to all the partners except on George B. Markle’s interest ; but that dividends declared and payable on this last share had not been paid over, because of a controversy between Mrs. Hessenbruch and her brother as to the right thereto, and that the company is ready and willing to pay the same whenever this controversy is judicially settled.

The answer of George B. Markle, in substance, makes the same statements as that of Clora Markle, though much more in detail. His defense, on the merits, is practically set out in the sixth paragraph of his answer, thus :

“ 6. I deny that any dividends due and set apart to me upon the books of the said firm at the time of said sale passed by virtue thereof to the complainant as purchaser of said interest. .... I deny that by virtue of said sale the said Ida Markle Hessenbruch became and is entitled to any accounting for said interest up to the time of said sale, or since, and aver that any accounting of my interest therein vested in Clora Markle, under and by virtue of the several assignments to her, and especially under the assignment of June 5, 1896, before referred to.”

He further averred that a bill in equity, prior to the one in, this case, had been filed in the court of common pleas of Luzerne county, wherein George B. Alvan and Clora Markle were plaintiffs, and the other parties named as defendants in this case, including Mrs. Hessenbruch, this plaintiff, were named as defendants, wherein the same subject matter is contested which is sought to be determined by this bill, and that the issue is now pending for decision in that court, and that therefore, this complaint should be dismissed.

The issue as thus made up came on for trial in the court below; there was a patient and prolonged hearing, and a large volume of testimony taken. The learned trial judge, on both facts and law, found in favor of plaintiff. We shall not concern ourselves with a discussion of the contradictory evidence; a careful examination of it fails to satisfy us that there is any manifest error in the findings ; on the contrary, we believe they are fully warranted and are right.

As to the averment of lis pendens in the answer of George B. Markle, in this case, it is purely a question of law determinable from an inspection of the records in the two causes. In equity, often, perhaps generally, it is a question of fact referable to a master to take testimony and report: but here, nothing dehors the records would shed light on the question. It is not doubted that a plea of lis pendens is a good plea in abatement to a bill in equity, but the authorities are not altogether in accord as to what is requisite to sustain the plea; a clear statement of what must be shown is given in Harrisburg v. Harrisburg City Passenger Ry., 1 Pa. Dist. Rep. 192: “A plea of former suit pending must allege that the case is the same, the parties the same, and the rights asserted and the relief prayed for the same; and where the truth of the plea can be ascertained by an inspection of the record, the court will determine the question without a reference.” This is but a concise summary of the weight of authority on the subject. Let us determine the availability of the plea to these defendants by the test thus laid down. The bill in Luzerne county was filed August 28,1895; the one before us, May 24, 1898; the parties plaintiff in the Luzerne bill are George B. Markle, Alvan Markle and Clora Maride; the defendants, E. P. Wilbur, the executors of William Lilly, deceased, John Markle, Ida Hessenbruch and Herman Hessenbruch. Although not the same plaintiffs and defendants, the same persons are embraced in both bills; we may, therefore, with perhaps some liberality of construction, assume that the parties are the same. But, is the case the same ? This must be ascertained by comparing the averments of the two bills. The first paragraph in the Luzerne bill avers and sets out the articles of copartnership ; the second, the death of William Lilly, and the substitution of his executers as representatives of his interest; the third, that E. P. Wilbur had parted with all his interest, yet continued to act as a partner and meddle with the business at the request of the remaining defendants ; fourth, that Wilbur fraudulently and maliciously conspired with the other defendants to exclude the plaintiffs from any part or lot in the management ; fifth, that John Markle, at the formation of the partnership, as a condition to being appointed manager, agreed he would cease to act if his management did not prove satisfactory to all of the partners, yet in violation of his agreement he persisted, against the protest of plaintiffs, in holding on to his appointment ; sixth, avers in elaborate specifications his dishonesty, extravagance and general mismanagement; seventh, that still greater extravagance is contemplated in the future; eighth, because of valuable continuing leases, not assignable, irreparable loss would result if the partnership were dissolved; ninth, a general averment of conspiracy to exclude plaintiffs from any share in the management. Next, notice the prayers for relief: First, that Wilbur be restrained from taking any part in the management; second and third, that all of defendants be restrained from excluding plaintiffs from taking part in the management, and John Maride from acting as manager to their exclusion; fourth, that defendants and all their employees be restrained from, making new and extravagant improvements; fifth, that they be restained from paying out dividends without consent of plaintiffs. The remaining prayers, from sixth to tenth, inclusive, ask that defendants and the manager be directed to account for cost of improvements, coal sold, expense of mining and salaries; the eleventh and twelfth are for appointment of master and general relief.

When we consider the averments of Mrs. Hessenbruch’s bill and the answers thereto, heretofore noticed, not one of them touches the subject in controversy in the Luzerne bill; the latter is a complaining and dissatisfied partner’s bill; it is not even hinted that one of defendants, Mrs. Hessenbruch, dishonestly seeks, by a pretended assignment, to'claim the share and dividends of one of her copartners; nor, is there any prayer for relief against such claim. Nor does the answer of Mrs. Hessenbruch raise any question which can move the Luzerne court to inquire into the controversy raised by the issue now before us. True, in the third paragraph of her answer she asserts that George B. Markle has assigned a moiety of his interest to her, but she asserts this, not as a defense, but by way of explanation of her weight of interest in the partnership. Mrs. Iiessenbrueh’s bill raises no question as to the honesty of John Markle, or management of the business. She avers that dividends have been declared, have been set apart and deposited with a stakeholder for the proper owner of George’s share; she asks for no accounting; as to whether too much or too little she makes no suggestion; even George does not aver in his answer that at least this amount of money deposited is not payable to the real owner of his interest; he only avers that he is still the owner. We are of opinion, with the court below, that the cases are not the same; that the rights asserted and the relief prayed for are not the same ; therefore, that the plea of a former action pending is not sustained.

The argument of the learned counsel for appellant, that all that passed by the assignment to Mrs. Hessenbruch was a mere right to an account, an intangible thing, which she must assert by bill against the partners for an account, is without merit. Such a plea, if sound, could only be raised by the partnership; if the assignment was good, as the court below has found, George B. Markle has no further interest in the moiety assigned; how his assignee shall enforce her right under the assignment, if the partnership denies it, is no concern of his. The partnership acknowledges it, and is ready to pay the dividends declared upon it to the proper owner; indeed, under the first paragraph of the partnership agreement, they could not well do otherwise.

The appeal is dismissed afc costs of appellant, and the decree of the court below is affirmed.