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Midler v. Heinowitz

Decided: February 23, 1950.

HARRY L. MIDLER, PLAINTIFF-APPELLANT,
v.
ABRAHAM M. HEINOWITZ, DEFENDANT-RESPONDENT



McGeehan, Colie and Eastwood. The opinion of the court was delivered by Eastwood, J.A.D.

Eastwood

[6 NJSuper Page 361] Plaintiff, Harry L. Midler, instituted an action in the former Court of Chancery against defendant, Abraham M. Heinowitz, for an accounting. Midler appeals from the judgment of the Superior Court, Chancery Division, on the ground that the court erred (1) in sustaining defendant's exception No. 3 to the Master's findings, thereby refusing to charge the joint venture with an additional 169,352 lbs. of high speed steel alleged to have been purchased from the Fafnir Bearing Company and sold by Heinowitz to the Crucible Steel Company; (2) in sustaining defendant's exception

No. 5 to the Master's finding that the joint venture be credited with the additional sum of $10,599.39 for sale of materials bought from the Bridgeport Thermostat Company and directing that only the sum of $3,863.80 should be added thereto; (3) in determining that the sum of $4,244.20 paid to plaintiff represented advances against his share of the profits and not wages; (4) in refusing to allow interest on his award; (5) in charging plaintiff with one-half of the additional $2,000 allowed to the Special Master; and (6) in denying plaintiff a reasonable counsel fee.

The partnership venture was undertaken early in 1938, and was terminated the latter part of the same year. The reference for an accounting was directed by former Vice-Chancellor (now Judge) Bigelow. The Special Master reported that there was a net profit of $43,159.77, from the operations of the joint venture, one-half of which "* * * is $21,579.89, and charging $4,244.20 which I find and report were the advances made to Midler, as against his share of the profits, I find and report that there is due to Harry L. Midler $17,335.69, with interest at 6% from January 1, 1939;" or in the alternative, if the sum of $4,244.20 is charged as wages against Midler's share, then "* * * there is due plaintiff $19,457.78, with interest at 6% from January 1, 1939."

Defendant took several exceptions to the Master's findings. It is only necessary, however, to mention those which are the subject of this appeal, viz.:

No. 3: That the Master erred in finding that the defendant had failed to account for 169,352 lbs. of high speed steel purchased for the joint venture from Fafnir Bearing Company, and "* * * sold from time to time commencing February, 1939, for a total of $15,498.96. But the joint venture was credited only with $3,723.72 of that amount * * *" and crediting the joint venture with the difference of $11,775.24.

No. 5: That the Master erroneously charged the defendant with additional sales of $10,599.36, for alleged unaccounted sales of items purchased from Bridgeport Thermostat Company, whereas the joint venture should have been credited with only the sum of $2,524.70 for such sales.

No. 8: That the Master erred in allowing interest to Midler from January 1, 1939.

The Superior Court failed to sustain the Master's findings that the joint venture was entitled to the additional sum of $11,775.24, for alleged unaccounted sales to the Crucible Steel Company of some of the material purchased from the Fafnir Bearing Company.

The court rejected the Master's recommendation that the joint venture was entitled to an additional credit for the Bridgeport Thermostat Company transactions in the sum of $10,599.39, and concluded that the sum of $3,863.80 was the proper amount.

The trial court adjudged that the net profit of the joint venture amounted to $22,019.17, one-half of which was due by Heinowitz to Midler amounting to $11,009.58, deducting therefrom the sum of $4,244.20, which the court determined represented advances made by Heinowitz to Midler on account of his share of profits, and directed that the balance of $6,755.38, be paid by defendant to Midler; that the sum of $2,000 be paid to the Master as an additional sum for his services, one-half of which was directed to be paid by each party; and that no interest on the judgment nor any counsel fees be allowed to plaintiff.

With respect to the court's failure to affirm the Master's findings, plaintiff contends that our courts have consistently ruled that a Master's finding on a factual issue will not be disturbed unless it is a very clear case of error or mistake, citing Sinnickson v. The Adm'rs of Bruere , 9 N.J. Eq. 659 (E. & A. 1855), and numerous other decisions in support thereof. While the legal principle contended for by plaintiff is conceded, it is equally clear that our courts have uniformly held that a Master's report is not conclusive and binding upon the court, but the court may, upon a Master's report coming before him for confirmation, examine the factual findings and, if it appears to the court that the Master erred in his ...


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