French v. Pittsburg Vehicle & Harness Co.

Opinion by Mb. Chief Justice Sterbett, The subjects of complaint in this appeal are certain surcharges against the appellant, Armand C. Hess, receiver of the defendant company, made by the learned auditor and approved by the court below. It is proper to' say, in limine, that appellant was not surcharged for any loss arising from mere error of judgment. Ex [163] ceptions to his account embracing errors of judgment only were dismissed by the auditor, as appears by his report. Other •exceptions of a graver character were sustained by both auditor and court; and a careful examination of the record clearly shows that the appellant has not been treated by them with undue severity. The uncontradicted evidence as to his sale to the Pittsburg Cycle Co. proves the existence of facts and circumstances which justly imposed on him the burden of proving that the transaction was one of fair dealing, and that the price was not inadequate. Mr. Pepper, a member of the purchasing firm, testified that, “ at the time of the purchase from Mr. Hess (the appellant) in November, 1898, it was understood that he (Hess) was to become a member of the Pittsburg Cycle Co. after he was released from the receivership. He afterwards became a member, and is so now.” Appellant him self testified: “ As to the firm of Pepper & McGowan, (trad ing as the Pittsburg Cycle Co.) it was formed in the latter part of November, 1898. It consisted of Pepper and McGowan, with the understanding that they were to emploj^ me at a sal .ary of $1,200 a year, and later,—as soon as the Vehicle & Harness Co. was wound up,—to admit me as a partner.” The rule prohibiting trustees from purchasing at their own sale, without previous permission, applies with much force to a transaction such as this. The learned auditor according]y surcharged appellant with the difference between the appraised value of the goods and the amount for which they were sold, as aforesaid, to the Pittsburg Cycle Co. soon after the appraisement was made. In the absence of any sufficient explanatory evidence on behalf of appellant, he has no just reason to complain of this. As to the allowance claimed by appellant for bicycles included in the inventory, but which ho alleged were left for repairs only and did not belong to the assignor company, the auditor rightly held that the claim for allowance was not substantiated. The clerks by whom the inventory and appraisement were made were not called to testify, although they were in the city at the time of the hearing. In view of all the circumstances disclosed by the evidence, the credit claimed was properly disallowed. The credit claimed for payment on the Williams lease was also properly disallowed. The order of court authorizing the sale of the leasehold required the purchaser “to assume the ground [164] rent on tbe premises from tbe date of sale.” The purpose of the subsequent proceedings on this lease was not to authorize a second sale, but to substitute another, in lieu of the first purchaser, on the same terms, as appears from the fact that the first purchaser joined in the petition expressly requesting such substitution. Further discussion of the questions involved in this .appeal is unnecessary. They are all destitute of merit, and none of the specifications is sustained. Decree affirmed and appeal dismissed at appellant’s costs.