George H. Weinrott & Co. v. Burlington Housing Corp., F--2195

• Decision Date: 20 October 1952
• Docket Number: No. F--2195,F--2195
• Citation: 91 A.2d 660,22 N.J.Super. 91
• Parties: GEORGE H. WEINROTT & CO. v. BURLINGTON HOUSING CORP. et al.
• Court: New Jersey Superior Court

Page 91

22 N.J.Super. 91

91 A.2d 660

GEORGE H. WEINROTT & CO. v. BURLINGTON HOUSING CORP. et al.

No. F--2195.

Superior Court of New Jersey

Chancery Division.

Oct. 20, 1952.

Sidney W. Bookbinder, Burlington, attorney for plaintiff.

Louis B. LeDuc, Camden, attorney for defendants Burlington Housing Corp. and Edmond E. Robins.

Starr, Summerill & Davis, Camden (S. Lewis Davis, Camden, appearing), attorneys for defendant Markheim-Chalmers-Ludington, Inc.

EWART, J.S.C.

The complaint in this action is divided into four counts.

In the first count plaintiff sues defendant Burlington Housing Corporation to recover the sum of $47,952 representing a 2% Commission for placing for the said defendant 296 first mortgages of $8,100 each. The basis of plaintiff's claim is set forth in paragraphs 2, 3 and 4 of the first count which read as follows:

'2. On or about the aforesaid date the defendant, Burlington Housing Corporation retained the services of plaintiff for the purpose of placing 296 first mortgages of $8100.00 each at 4% For 25 years, for which service the said defendant agreed to pay to the plaintiff the sum of 2% For each mortgage.

'3. Plaintiff was successful in this venture and on February 2, 1948, 296 firm committments were obtained from the Federal Housing Administration.

'4. Thereupon, there became due and owing to the plaintiff, the sum of $47,952.00.'

In the second count plaintiff sues to recover from defendant Burlington Housing Corporation the sum of $36,841 for engineering services rendered by plaintiff to said defendant between December 15, 1947 and August 16, 1948. The gist of the complaint in this count is set forth in paragraphs 2, 3 and 4 of the second count which read as follows:

'2. On or about the 15th day of December, 1947, the Burlington Housing Corporation retained the services of plaintiff for the purpose of obtaining certain engineering service for which the said defendant agreed to reimburse the plaintiff.

'3. Between December 15th, 1947, and August 16th, 1948 plaintiff had the said engineering services performed.

'4. Plaintiff expended $36,841.00 in this manner on behalf of the said defendant between the aforesaid dates.'

In the third count plaintiff charges that in the month of March 1950 defendant Burlington Housing Corporation conveyed to its president, Edmond E. Robins, individually, the real estate comprising substantially all of its assets for a consideration substantially below the true value of the assets; that the defendant Robins had knowledge of the unpaid claims of the plaintiff against Burlington Housing Corporation; and that the transfer of assets to the defendant Robins was made for the purpose of defrauding the creditors of Burlington Housing Corporation, including the plaintiff.

In the fourth count it is charged that defendant Robins, on or about June 13, 1951, conveyed the real estate formerly belonging to defendant Burlington Housing Corporation to defendant Markheim-Chalmers-Ludington, Inc., for a consideration of $75,000 and that at the time of said conveyance defendant Markheim-Chalmers-Ludington, Inc. had prior knowledge of the fact that the assets of Burlington Housing Corporation had been conveyed by it to the defendant Robins in order to defraud creditors of Burlington Housing Corporation.

Plaintiff demands judgment for $84,793 (the sum of the demands in the first and second counts), together with interest and costs, against all the defendants, or either of them; that the defendant Robins be adjudged to hold in trust for the plaintiff the proceeds received by him on the transfer of said real estate to the defendant Markheim-Chalmers-Ludington, Inc.; and that an equitable lien be impressed upon the said real estate, formerly constituting practically all of the assets of Burlington Housing Corporation and now held by defendant Markheim-Chalmers-Ludington, Inc., for the said sum of $84,793 together with interest and costs.

Interrogatories were served upon plaintiff on behalf of defendant Markheim-Chalmers-Ludington, Inc., and another set of interrogatories were served upon the plaintiff by the defendants Burlington Housing Corporation and Robins. Plaintiff has answered both sets of interrogatories.

All of the defendants served upon the plaintiff on June 4, 1952 demand for admissions, none of which have been answered by the plaintiff. Under the provisions of Rule 3:36--1, the failure of the plaintiff to answer said demands is deemed an admission of the correctness of the matters set forth in the demand which the plaintiff was requested to admit.

And the deposition of George h. Weinrott, president of the plaintiff corporation, was taken on May 8, 1952.

The pleadings in this cause, together with the answers to interrogatories, demand for admissions, and deposition of George H. Weinrott, reveal the following factual situation, about which there appears to be no dispute:

1. Plaintiff George H. Weinrott & Company is a Pennsylvania corporation incorporated in or about the year 1931. George H. Weinrott, individually, has been president of the corporation ever since its organization. He and his wife are presently the sole stockholders of the corporation and he individually operates the business of the corporation.

2. Plaintiff corporation was never licensed as a real estate broker or salesman in the State of New Jersey nor in any state outside of the State of New Jersey.

3. Neither the plaintiff corporation nor George H. Weinrott individually is licensed as a professional engineer in the State of New Jersey or in any state other than the State of New Jersey.

4. The engineering services rendered as mentioned in the second count of the complaint are described by the plaintiff in its answer to the sixth interrogatory under the second count submitted by the defendant Burlington Housing Corporation as follows:

'6. Boundry survey, detail plot plan of 296 lots, street plan profiles, sewer mains and collection system, sewerage treatment plant layout including State approval, sewage treatment plant layout and design, water pumping station complete including State approval and distribution lines, house stakes, storm sewer plans, representation before Public Authorities and Utility companies on permits, zoning, etc. representation of subdivision analysis and land planning and approval of same by FHA.'

And the plaintiff's answers to interrogatory No. 5 under the second count submitted by defendant Markeim-Chalmers-Ludington, Inc., discloses that Damon & Foster of Sharon Hill, Pennsylvania, were employed by plaintiff as consulting engineers; that most of the charges for engineering services contained in the second count of the complaint were for services rendered by Damon & Foster; and that the plaintiff, George H. Weinrott & Company, acted as chief engineer of the housing project.

The deposition of George H. Weinrott, individually, president of the plaintiff corporation, taken May 8, 1952, discloses that the plaintiff corporation acted as project engineer; that the plaintiff corporation subcontracted to Damon & Foster of Sharon Hill, Pennsylvania, that portion of the engineering work which the plaintiff considered Damon & Foster were qualified to perform; that the engineering services rendered by the plaintiff corporation were actually rendered by the witness George H. Weinrott, the president of the plaintiff corporation; that plaintiff corporation procured the services of Damon & Foster; participated in the studies, analyses and other matters relevant to the development of the housing program, and participated in the hearings for obtaining authority for the installation of the sewage treatment plant and of the water plant. It further appears in the deposition of George H. Weinrott that the plaintiff has paid to Damon & Foster on account the sum of $1,952; that the total charges of Damon & Foster for services rendered amounted to the sum of $28,887; and that the balance of $7,954 is the difference between the total contract price for engineering services and the amount ($28,887) which the plaintiff corporation subcontracted to Damon & Foster. However, George H. Weinrott, president of the plaintiff corporation, insisted that the total charge for engineering services was made by the plaintiff corporation. After having testified that the bill of Damon & Foster was $28,887, he was asked whether the balance of $7,954 represented the engineering services rendered by the plaintiff corporation. The following questions to, and answers by, Mr. Weinrott, illustrate the point, as follows:

'Q. Does that difference measure the engineering services that were rendered by the plaintiff corporation? A. The plaintiff corporation's services are represented by the sum of $36,841.00, it is not represented by the difference.'

In the examination, plaintiff's president was further queried about the engineering services and by whom rendered, etc. The position of the plaintiff with respect to the charge for engineering services is set forth by the plaintiff's counsel in an objection to further questioning along that line, as follows:

'Mr. Bookbinder: I would like to place this objection on the record. The witness has already answered that question by stating the full contract price for those engineering services was a total of $36,841.00 and of that $36,841.00 he subcontracted a total to Damon & Foster which amounted to dollars and cents $28,887.00. Insofar as accounting for specifically the balance, I think that is immaterial.'

Defendants now join in a motion for summary judgment on the grounds: (1) that the complaint fails to state a cause of action because the...