Massari v. Einsiedler

CourtNew Jersey Superior Court – Appellate Division
Citation9 N.J.Super. 59,74 A.2d 907
Docket NumberNo. A--180,A--180
PartiesMASSARI et al. v. EINSIEDLER. EINSIEDLER v. MASSARI et al.
Decision Date19 July 1950

Joseph Weintraub, Newark, argued the cause for appellant (McGlynn, Weintraub & Stein, Newark, attorneys).

Arthur L. Abrams, Newark, argued the cause for respondents.

Before Judges McGEEHAN, COLIE and EASTWOOD.

The opinion of the court was delivered by

COLIE, J.A.D.

This appeal is from a judgment of the Superior Court, Law Division, which dismissed a petition in the suit of Massari v. Einsiedler in the Law Division whereby Einsiedler sought to reform certain instruments and to compel the Massaris to accept payment of a judgment in accordance with the instruments as reformed and asking certain incidental relief, and which also dismissed the complaint filed by Einsiedler in the Chancery Division against the Massaris whereby he sought the same relief asked in the petition heretofore mentioned.

It is necessary to epitomize the prior steps in the litigation. As the parties appear sometimes in the role of plaintiff and sometimes as defendant, clarity will be served if they are described by name rather than by their status in the various suits.

The Massaris were owners of a business known as Accurate Bushing Co. which Einsiedler agreed to purchaes for $364,000. A written sales agreement was executed and the business was turned over to Einsiedler who paid $194,586.65 and interest on the purchase price. Paragraph 3 of the sale agreement referred to a 'security trust agreement' which dealt with the obligation of Einsiedler to use the proceeds from sale of stock of Accurate Bushing Co. stock to liquidate the unpaid balance of the purchase price. The balance being unpaid the Massaris brought suit in the Law Division demanding $170,584.26 and also a restraint against Einsiedler from disposing of any stock of Accurate Bushing Co. or its assets. Einsiedler answered admitting the amount due and setting up by way of defense that he had tendered certain shares of stock of Accurate Bushing Co. at their then book value in payment of the indebtedness in accordance with the terms of an alleged loan agreement. Without including all the legal steps taken, suffice it to say that a motion for summary judgment in favor of the Massaris was entered by the Law Division judge. Thereafter Einsiedler filed a petition and supplement thereto seeking to compel the Massaris to accept the aforementioned stock at book value in reduction of the judgment debt. The Law Division dismissed the petitions and an appeal from that order and the summary judgment was taken. The Appellate Division affirmed. Massari v. Einsiedler, 3 N.J.Super. 40, 65 A.2d 538, certiorari denied 1 N.J. 604.

The opinion settles the law of the case in three particulars: First, that the Law Court considered the answer and the defense; second, that the defense in the answer based upon the 'loan agreement' and which was also the basis of the petition and supplemental petition were one and the same; and, third, that the 'loan agreement' was inadmissible in evidence to vary the terms of payment as set up in the 'sale agreement'.

Subsequent to denial of certification by the Supreme Court, the receiver, who had previously been appointed, fixed a date for sale of the Accurate Bushing Company stock which had been taken under execution. Before the date of the sale, Einsiedler filed a complaint in the Chancery Division seeking (1) to enjoin the receiver's sale, (2) to reform the 'sale agreement' by incorporating therein that 'the said loan agreement and security trust agreement to provide that if the purchaser (Einsiedler) shall make any breach or default under the terms thereof, or in the payment of the moneys payable thereunder, the sellers (Massaris) shall proceed only against the shares of stock of Accurate Bushing Company owned by the purchaser and shall accept in payment of the balance due, such number of shares of stock of Accurate Bushing Company as shall have a book value determined as of default equal to the balance due to the sellers.' Reformation of the 'loan agreement' and 'security trust agreement' to conform to the tenor of the reformed 'sale agreement' was also sought. The Chancery Division denied an injunction against the receiver's sale, 'without prejudice, however to any application which the plaintiff may make to the Law Division.' Thereafter Einsiedler sought the same relief in the Law Division and by subsequent amendment restitution and damages for breach of the contract as reformed. By consent all matters then pending in the Law Division were consolidated. On motion of the Massaris the consolidated petition and complaint were dismissed...

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3 cases
  • Massari v. Einsiedler
    • United States
    • New Jersey Supreme Court
    • February 5, 1951
    ...motion of the Massaris, were dismissed by the Law Division. The judgment was affirmed by the Superior Court, Appellate Division. 9 N.J.Super. 59, 74 A.2d 907. Certification was granted by the Supreme Court to review the judgment of the Appellate Division pursuant to a petition therefor by E......
  • Martin v. Western Elec. Co., A--287
    • United States
    • New Jersey Superior Court — Appellate Division
    • August 1, 1950
  • Massari v. Einsiedler
    • United States
    • New Jersey Supreme Court
    • October 16, 1950
    ...Court of New Jersey. Oct. 16, 1950. On petition for certification to Superior Court, Appellate Division. See same case below, 9 N.J.Super. 59, 74 A.2d 907. Joseph Weintraub and McGlynn, Weintraub & Stein, all of Newark, for the Arthur L. Abrams, Newark, for the respondents. Granted. ...

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