On appeal from the Hudson County Circuit Court.
For the plaintiffs-respondents, Milberg & Milberg (Henry Milberg, of counsel).
For the defendant-appellant, Insley, Decker & Cross (William E. Decker, of counsel).
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. The plaintiffs have recovered judgment in the Hudson County Circuit Court and the defendant appeals. The plaintiffs were stockholders of the Nevin Transit, Inc., Nevin Midland Lines, Inc., and Silver Dart Lines, Inc., motor-bus companies which were operated by Harris and William Nevin. The defendant, B. F. Goodrich Company, a New York corporation, was a creditor of these bus [126 NJL Page 466] lines and held judgments recovered in New York State of $30,168.30 against Harris Nevin and $7,438.81 against William Nevin. The judgment debtors entered into a written agreement on December 20th, 1935, with the judgment creditor (defendant) the substance of which was that these parties agreed to settle these debts for the sum of $10,500. In accordance with this agreement $6,500 was paid when the agreement was signed and $500 more was to be paid on or before December 28th, 1935, which also was done. Payment of the balance of $3,500 was provided for in this fashion: The debtors, Harris and William Nevin, agreed to obtain for the creditor an assignment in that amount "on the purchasers of stock of various Nevin Lines, which purchasers have been represented by" a Mr. McEwing of the New York and a Mr. Dittmar of Chicago. The agreement further recited that the debtors warranted "that the sum of $25,000 is due and payable from the purchasers on the first day of February, 1936, and that the assignment of $3,500 hereinabove referred to is upon the said sum of $25,000 due on February first, as aforesaid." In other words, the bus lines operated by the Nevins were under sale and the assignment in the amount of $3,500, sufficient to settle the judgment against the Nevins, was given by William Nevin "as attorney in fact for the officers, directors and stockholders of three bus companies." Upon payment of $500, mentioned above, on December 28th, 1935, the defendant, Goodrich Company, assigned the judgment against William Nevin, in the amount of $7,438.81 to Sophie Wemple, Julia Nevin, Jacob Fox and Martin Siegel, the plaintiffs in this action. Four days prior to the agreement between the Nevins and the defendant, William Nevin, as attorney in fact for the stockholders of the bus lines, had agreed to sell all of the capital stock of the three corporations for the sum of $125,000, the stock to be delivered to one Carden to whom McEwing was to make five payments of $25,000 each. Two of the five installment payments apparently were made as agreed. The third payment was due on February 1st, 1936; the fourth, three months thereafter, and the fifth two months after that. It was out of the third payment scheduled to be paid on February 1st, 1936, that the final payment of $3,500 to the
defendant was to be made. This payment from Mr. McEwing, which had been warranted in the contract settling the judgment debts between the defendant and Nevins "as due and payable" on February 1st, 1936, was not made nor were subsequent payments made because as the witness, William Nevin, said, "two of the three companies were placed in 77B reorganization in the Federal District Court of New York by the purchasers."
The Goodrich Company was represented by a firm of New York lawyers, Messrs. Shestack & Shestack. Tender of the outstanding balance of $3,500 was not made to Mr. Shestack, representing the judgment creditor, until February 2d, 1938, two years after the contemplated time, when it was refused.
By the original agreement between the debtors (Nevins) and the creditor (Goodrich Company) it was stipulated that when the final payment of $3,500 was made, the creditor was to assign to the stockholders of the bus lines, i.e., the present plaintiffs, the judgment for $30,168.36 against Harris Nevin, as well as any claims it might have against the three bus lines in consideration of "the consent of the said stockholders to the assignment to the judgment creditor in the sum of $3,500," out of the $25,000 due from the McEwing interests as the third payment. Meanwhile, i.e., between February 1st, 1936, and February 2d, 1938, Mr. Shestack, as attorney for the creditor, had received dividends in the bankruptcy reorganization proceeding in an amount exceeding $9,000. In this suit the plaintiffs, being the stockholders of the bus companies alleged that there had been legal compliance with the terms of the agreement made by the Nevins and the Goodrich Company in December, 1935, by a tender of the balance of $3,500 due under that agreement on February 2d, 1938, and they demand an assignment of the claims against the bus companies aforesaid or the proceeds thereof (i.e., dividends paid) and an assignment of the judgment held by the Good-rich Company against Harris Nevin.
The case was fully tried, submitted to the jury and a verdict was returned in favor of the plaintiffs for $4,870.34, and judgment was accordingly entered. During the course of the trial the defendant assigned the Harris Nevin judgment to
the plaintiffs and the Nevins were joined as parties plaintiff to the suit.
Four grounds of appeal are argued; the first two charge that the court erred in refusing to nonsuit and to direct verdict for the defendant; the third is a challenge to the charge of the trial court, and the fourth ...