The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1902-08-13

the Opln1On.
In the case of John s. jenkins agains,
the Rushbrook Coal company, exccp-
tions to report of referee, the follow
ing is the opinion of Judge Edwards In
the case handed down Monday:
The testimony and the report of the re.
feree In this case arc voluminous and the
exceptions on both sides are numerous
The referee Is to be commended for the
concise and clear manner in which he
arranges and disposes of the various
items of the plaintiffs claim. His work
has been of material assistance to the
court in the consideration of the excep.
tions.
The action is in assumpsit. Plaintiff
was president. director and manager OF
the defendant company. His claim is for
services and for money advanced to the
company and amounts to over $4,000.
Several of the 157 items constituting the
claim are withdrawn by the plaintiff dur
ing the trial and many of the other items
are disallowed by the referee. The final
result shows that the plaintiffs claim as
proven is reduced to s7.46S.62. But the de-
fendant is allowed set-off amounting to
$22.05O, thus wipitg out the plaintiff s
claim and leaving balance. as found by
the referee, in favor Of the defendant, of
S22. .SSO.61. The most important exception,
and the one that constituted the burden
of the argument of counsel, relates to the
character of the set-off of s22,O5O and the
right of the defendant to maintain 1t.
NATURE OF SET-OFF.
The nature of this set-off is explained
by the referee in the following language:
During the negotiations which resulted
in the leasing of the company's property
10 DIR. j. N. Rice, who in turn leased the
same to the Blue Ridge Coal company.
Mr.. Coray. who claimed to own about all
of the stock of the company, and who is
conceded to have been the owner of a
very material part of it. objected to the
marking of such lease upon conditions
substantially the same as those finally
agreed upon. claiming that Dr.. Rice
should give more favorable terms for the
property. 1t was understood between DR..
Rice and Mr.. Jenkins that Mr.. jenkins
was. If possible. to induce Mr.. Coray to
make the lease to DR.. Rice upon terms
acceptable to the doctor, for which SER
vices DR.. Rice was to pay and did pay to
Mr.. jenkins certain stocks and other
property of material value
After discussing the value of the stocks
and real estate given to jenkins under
the circumstances stated, the referee
fixes the value of the property as fol-
lows:
Blue Ridge stock. ck..:.................a 5000 co
West Pittston house and lot...... 1850 co
One-siXth keystone Coal Co.
stock OBSERVATION-DISCLOSURES. lO,OOO w
Morgan Store Co. stock............ 1900 O0
S22,O5O 90
The referee then says:
"This brings III. to the following conclu-
sion. Mr.. Jenkins, while president. su-
LIANT ,f "a.
company was endeavoring to find pur-
chaser for the whole of the cOmpany's
property. His official position of conf
dence. as president, manager and super
intendent of the company required that
he should use every effort to get the best
possible terms from the purchaser, or
lessee. for the benefit of the company.
The Fact that his claim for salary as
president. is not maintainable did not in
any way reduce the character of his duty
to the company which he represented.
AN INDICTMENT OFFERED.
"4As a matter of fact. however, he was
at one time paid $i6G.6G on his salary as
president. and was being paid at the rate
of 500 per month as superintendent and
manager during all these negotiations
owner of very large part of the stock.
If not all of 1t, objected to the terms
which MIR. Jenkins represented to him
were the best that could be obtained. so
DR.. Rice gave to Mr. Jenkins property
to the value of s22O5 to induce him. Mr.
to persuade Mr.. Coray, or rather
to persuade the company, to accept the
terms offered by DR.. Rice, who was will
ing to pay and did pay 500, ,O5O more than
the company supposed it was getting, or
did get. 1t may have required a great
effort on the part of Mr.. Jenkins to in
duce the company to agree to the price
which 1t finally did accept, but if he had
disclosed the fact that Dr. Rice was pay
ing for the property $22,05O more than
the company was getting, and had eX-
pressed a Willingness to add this $22, ,050
to the amount which the company was
to get, he might have induced the COM
pany to accent these more advantageous
terms with much less effort than was re-
quired under the circumstances.
ut was the duty of Mr.. jenkins to keep
his company fully informed of everything
rela ting to the purchase price which the
intending lessee was willing to pay. and
find, as a matter of fact and law that
this $4,000 was a part of the considera-
ton passing from DR.. Rice which should
have been added to what the company
actually received and that Mr.. Jenkins
should now be charged with the same in
his action. l have given this matter,
Nnicn is referred 10 repeatedly In the
testimony. very careful and thorough
in the hope of discovering,
somewhere in the testimony or in the |
aw, or in my own appreciation of right |
md wrong, something which would |
enable me to arrive at Il different con-
,lusiOn; but | confess that | cannot, and |
therefore charge this $22. .O50 against the |
account of Mr. Jenkins, although it may
'esult in a judgment by the defendant |
against the plaintiff, In Il word, the |
whole situation resolves itself to this:
Mr.. Jenkins has advanced to the COM
'any $Il6S,62, but at the same time has |
,ad paid into his hands So, ,G50 which |
'ightfully belongs to the company which |
le represented and for which he should |
n all justice account to the company"
We agree with the referee in the con- |
lusion he has reached on this point. We |
10 not see how, under the law, he could |