Kennedy v. McCloskey

Citations

• 170 Pa. 354
• 33 A. 117
• 1895 Pa. LEXIS 1412

Syllabus

<p>Equity — Party—Corporation.</p> <p>Where judgment creditors agree to buy the property of their debtor at a sheriff’s sale, and to foi'm a corporation, taking stock therein in proportion to their debts, the corporation so formed is a necessary party defendant in a bill in equity filed by one of the creditors to compel a transfer to him of his proportion of the stock, if it appears that the corpoi'ation was formed pending the litigation, and that the stockholders were the identical creditors who had made the agreement with the plaintiff.</p> <p>Contract — Variance between contract averred and that proven — Receiver —Corporation—Stock—Practice.</p> <p>Where one of several creditors in a judgment confessed to a trustee in their favor by a debtor, avers in a bill in equity that all of the creditors in the judgment agreed to buy in the property of the debtor at sheriff’s sale, and to form a corporation and' take stock therein in proportion to their respective debts, and the proof shows that the plaintiff was not to receive his proportion of the stock until his coadventurers had been paid fifty per cent of their claims out of the profits, there is no such fatal variance between the contract averred, and that proven, as will defeat plaintiff’s right to equitable relief; although the decree, on account of the immaterial variation between the averments and the proof, may not be framed in exact accordance with his prayer. <</p> <p>If none of the stock has been issued and no account of the profits taken, the court will not turn the management of the property over to a receiver until the defendants have been paid the profits equal to fifty per cent of their claims, but will direct that the plaintiff’s allotment of stock shall bo delivered to the prothonotary, until plaintiff shall apply to have the case referred to a master, to determine whether the profits have equaled the balance of the fifty per cent due to defendants, and if the profits be found by the master to be equal