Summary
holding that evidence of a confusing dictation of contract terms was not clear, precise and indubitable evidence of a mutual mistake
Summary of this case from Su Hoang v. Workers' Comp. Appeal Bd.Opinion
Argued April 12, 1954.
May 24, 1954.
Partnerships — Dissolution — Account stated — Subsequent agreement — Mutual mistake.
In a proceeding in equity involving the distribution of the remaining assets of a partnership in process of dissolution, in which the court below found that an account stated, upon which plaintiff relied, was superseded by a later agreement between the parties, and that the evidence was insufficient to establish that this agreement was the result of a mutual mistake of fact or law, it was Held that the final decree dismissing the complaint should be affirmed.
Before STERN, C. J., STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.
Appeal, No. 75, Jan. T., 1954, from decree of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1952, No. 1819, in case of Linton A. Thrasher, Admr., Estate of William Walter Thrasher, deceased, v. John H. Rothrock. Decree affirmed.
Complaint in equity. Before BOK, P. J.
Reporter's Note: The issue in this suit in equity was whether the remaining assets of a partnership should be distributed according to an account stated, prepared by the partnership's accountant (as plaintiff contended), or according to a subsequent written agreement between the parties (as defendant contended). The chancellor held that (1) the latter was a valid agreement, (2) the evidence did not prove that a term had been omitted from the written agreement by mutual mistake, and (3) the written agreement superseded the earlier account stated. The chancellor also held that the defendant had not proved his counterclaim, and dismissed the complaint. Upon consideration of defendant's exceptions to the ruling on the counterclaim, they were sustained and a final decree was entered dismissing the complaint and setting forth the amount due the defendant out of the remaining partnership assets.
Plaintiff appealed.
Samuel Finestone, with him W. Horace Hepburn, Jr., for appellant.
Frederick V. Hebard, with him John A. Eichman, 3rd, and Clark, Hebard Spahr, for appellee.
The final decree entered by the learned court below is affirmed at the appellant's costs on the adjudication of President Judge BOK as modified by the opinion for the court en banc in disposing of the exceptions filed to the decree nisi.