Lohmann v. Lohmann

• Decision Date: 28 April 1958
• Docket Number: No. A--569,A--569
• Citation: 141 A.2d 84,50 N.J.Super. 37
• Parties: Julia LOHMANN, Plaintiff-Appellant, and Cross-Respondent, v. Frederick F. LOHMANN, Defendant-Respondent and Cross-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 37

50 N.J.Super. 37

141 A.2d 84

Julia LOHMANN, Plaintiff-Appellant, and Cross-Respondent, v. Frederick F. LOHMANN, Defendant-Respondent and Cross-Appellant.

No. A--569.

Superior Court of New Jersey Appellate Division.

Argued March 17, 1958.

Decided April 28, 1958.

Albert L. Cohn, Paterson, argued the cause for plaintiff-appellant. (David & Albert L. Cohn, Paterson, attorneys).

Charles A. Stanziale, Newark, argued the cause for plaintiff-cross-respondent.

Raymond W. Troy, Newark, argued the cause for defendant-respondent and cross-appellant. (Theodore L. Abeles, Newark, on the brief, Lum, Fairlie & Foster, Newark, attorneys).

Before Judges PRICE, HANEMAN and SCHETTINO.

The opinion of the court was rendered by

SCHETTINO, J.A.D.

Appeal and cross-appeal are taken from a judgment of the Chancery Division. Plaintiff wife instituted a suit against defendant husband for separate maintenance and for an accounting of her share of certain real estate, business partnership, mortgages, bank accounts and for reimbursements for moneys allegedly advanced by plaintiff for payment of bills.

The separate maintenance litigation was tried first and apart from the property litigation. The trial court granted a judgment for separate maintenance, entered June 27, 1956.

On May 3, 1957, judgment was entered (A) in favor of the plaintiff (1) for an accounting as to certain items: i.e., (a) for plaintiff's one-half interest in the net rents, profits and issues derived from property located at 3701--03 Park Avenue, Union City, owned by the parties as tenants by the entirety, (b) for plaintiff's one-half interest in a $5,000 bond and mortgage; (2) for reimbursement to plaintiff by defendant for one-half the advances made by plaintiff in payment of taxes and mortgage amortization, and interest for their home at 8 Hamilton Avenue, Weehawken; and (B) against plaintiff in that all other demands by plaintiff were denied. Plaintiff appeals from so much of this judgment as denies her an accounting in respect of her alleged partnership in the restaurant business carried on at 3701--03 Park Avenue, Union City, between the years of 1927 and 1953. Defendant cross-appeals from all the above-named provisions of the judgment in favor of plaintiff.

The factual contentions, counter-contentions and the testimony are in most respects mutually contradictory and are complicated by the fact that many of the witnesses seemed prone to self-contradiction. The basic facts seem to be as follows: For several years before his marriage defendant had operated a small restaurant and 'speakeasy' in partnership with his brother, Robert, at 3701--03 Park Avenue, Union City. The brother died in 1924 and defendant continued the business individually.

Plaintiff and defendant were married on September 29, 1925. Prior to the marriage plaintiff was a widow with two children; Eric, born 1914, and Otto, born 1921. She was operating a rooming house at 612 Hudson Street, Hoboken, prior to her marriage and continued to operate it for some years after the date of marriage. Defendant was one of her roomers. They continued to live together at the rooming house after their marriage, and the evidence would seem to indicate that they pooled their resources in joint bank accounts.

In July 1927 the premises at 3701--03 Park Avenue were purchased with mutual funds in the name of a straw-man for approximately $50,000. Simultaneously with this conveyance the straw-man delivered a deed conveying the premises to plaintiff and defendant as tenants by the entirety. This deed was not, for self-evident reasons due to the 'speakeasy' business, recorded until April 1933. The property consisted of a plot and building, including a tavern on the first floor and six apartments. Part of these premises was used during Prohibition in the speakeasy operations. The rest was rented as apartments. Subsequently, an adjacent lot was purchased by both parties as tenants by the entirety for use as a parking area adjunct to the restaurant business.

In 1933, at the end of Prohibition, the premises were altered and the operation was transformed into a duly licensed restaurant and bar. In that same year the mortgage on the business premises was called in and plaintiff mortgaged her rooming house in order to help pay off the mortgage. Defendant admits that he collected all the rents from the six apartments from 1927 to 1953 when the premises were destroyed by fire. Defendant appropriated all the money for his personal use. Additionally, defendant never paid any moneys by way of rent to plaintiff on behalf of his business use of the first floor, the basement, and the parking area. The parties never lived on the business premises.

Plaintiff subsequently sold her rooming house, realizing only about $2,000 because of the substantial mortgages thereon. They purchased, by the entirety, a home at 22 Kingswood Road, Weehawken, in 1943 or 1944. This property was sold for $22,000 in 1951 and the proceeds used in the erection of their present home at 8 Hamilton Place, Weehawken. Although plaintiff had contended that defendant had kept her share of the sale price of $22,000, she waived this claim at oral argument.

Thus was have the outline of the transactions which are the subject matter of this suit.

The only issue properly raised by plaintiff on appeal is her contention that, by mutual oral agreement, she and her husband have been partners in his business enterprise since their marriage. There is no doubt that plaintiff in many ways was helpful to defendant in the operation of his business insofar as she drove him on his shopping expeditions to New York and elsewhere to purchase provisions for the restaurant; that she performed some services without compensation at the establishment, and that she alone, other than defendant, had access to the money in the safe--all prior to the breakdown of this marriage. Plaintiff also claimed and she proffered corroborating testimony that defendant held her out as a partner in business as well as marriage and many of the insurance policies as well as the income tax returns bore the names of both parties.

But her testimony as to the partnership agreement is unconvincing. There are many contradictions in plaintiff's own testimony as to when they resolved to operate as partners--before or after their marriage--so that the evidence in this regard is inconclusive at best. She is generally 'substantiated' by a witness who had been reduced in employment status due to drunkenness and who was found guilty of perjury during the trial on a question not too material to the trial; her two sons; and two friends. Some of plaintiff's own witnesses contradicted her story. In addition, in the separate maintenance phase of the litigation, plaintiff did not disclose any claimed partnership but rather alleged by affidavit that the business belonged to defendant only. Plaintiff made no claim throughout the year 1954--including any reference in the separate maintenance complaint dated October 7, 1954--pertaining to the alleged partnership. In July 1955 plaintiff first made a demand for an accounting based upon the alleged partnership claimed by her to have been created in September 1925.

Counterbalancing such testimony is defendant's proof by substantial testimony that defendant never held plaintiff out as a partner, and a study of the record shows that plaintiff was unfamiliar with the management and details of the business. The business bank account was in defendant's name only. All business bills were paid by defendant. The liquor license was in defendant's name only. The copies of income tax returns filed by defendant in the joint names of plaintiff and defendant do not disclose any partnership. If such existed, partnership information returns were required. None was filed.

The remaining element of plaintiff's proof on this phase of the case was the testimony referable to the insurance policies which were in their joint names. Plaintiff produced an insurance agent as a witness who testified that the business insurance policies were issued up to 1950 in the names of defendant and plaintiff. On cross-examination he admitted they had been so issued without any direction by defendant; that in 1950 defendant told him the policies were so issued by mistake and ordered the witness to change them so that defendant's name alone appeared thereon as the assured. Moreover, when the fire of December 1953 destroyed the business property, plaintiff and defendant were paid equally by the insurance companies, but defendant alone received the insurance moneys for the contents of the bar and restaurant and reimbursement for loss due to business interruption. In an affidavit dated October 7, 1954, and filed in her matrimonial part of the litigation, plaintiff referred to their joint ownership of these premises, complained that due to the fire the insurance company made a money adjustment for the loss of the business fixtures attached to the premises, but that she had received no part of that adjustment and therefore sought an accounting for her one-half interest therein.

R.R. 1:5--4(b) in part states:

'On a review of any cause * * * involving issues of fact not determined by the verdict of a jury, new or amended findings of fact may be made, but Due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.' (Emphasis added.)

This court has said:

'Beyond that, every intendment is in favor of the judgment under review, and we should not disturb the court's finding of fact unless we are well satisfied that the finding is a mistaken one.' Capone v. Norton, 11 N.J.Super. 189, 193, 78 A.2d 126, 128, (App.Div.1951), affirmed 8 N.J. 54, 83 A.2d 710 (1951); 5 C.J.S. Appeal and Error § 1533, p. 262.

Although we have the power to make new or amended findings of fact, 'its exercise is permissive in our sound discretion where required to do justice in the...