Delchamps, Inc. v. Borkin, 29231 Summary Calendar.
| Decision Date | 28 July 1970 |
| Docket Number | No. 29231 Summary Calendar.,29231 Summary Calendar. |
| Parties | DELCHAMPS, INC., a corporation, Plaintiff-Appellee, v. Alvin J. BORKIN et al., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Alvin Miller, New York City, Herbert Feibelman, Mobile, Ala., for appellant.
Donald F. Pierce, Stephen G. Crawford, Mobile, Ala., for appellee; Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, Ala., of counsel.
Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
This is an appeal1 from a judgment in the district court which held Alvin J. Borkin, president of Sales Charmers, Inc., personally liable on a contract entered into between Sales Charmers and appellee, Delchamps, Inc. Borkin's main contention is that there was insufficient evidence to establish him as the alter ego of Sales Charmers and thereby justify the piercing of the corporate veil.2 We affirm.
Although Borkin now raises the issue of the sufficiency of the evidence, such question was not preserved by motion for directed verdict nor by motion for judgment notwithstanding the verdict. It is well settled that in the absence of a motion for judgment notwithstanding the verdict made at trial this Court cannot examine the evidence for sufficiency, Parker v. American Oil Co., 5 Cir. 1964, 327 F.2d 987, nor enter such a judgment. Johnson v. New York, New Haven & Hartford R. Co., 344 U.S. 48, 73 S.Ct. 125, 97 L.Ed. 77 (1952).
A brief summary of the evidence should serve to demonstrate that even if the question had been properly preserved for our review, we, nevertheless, would still be compelled to affirm the lower court.
Mr. Borkin was in the sales promotion business. He was the owner or principal owner, director and officer of several corporations in this field including Sales Charmers, Inc., of which he owned 90% of its stock and was its president. Others were Money Tree, Incorporated, and Sac-A-Dough, Inc., each having been set up to advance a particular sales promotion idea, as was Sales Charmers. Each of these corporations had as its address the same office in New York City, which Borkin rented from his attorney and from which he conducted other business activities.
At trial appellee attempted to show that Borkin treated the various corporations as his own private business rather than separate corporations. Evidence was presented that Borkin hired a Mr. Johnson as salesman for several of the corporations and that Mr. Johnson, at the time of his hiring, assumed ...
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