Massari v. Einsiedler, A--180

• Court: New Jersey Superior Court – Appellate Division
• Writing for the Court: COLIE
• Citation: 9 N.J.Super. 59,74 A.2d 907
• Parties: MASSARI et al. v. EINSIEDLER. EINSIEDLER v. MASSARI et al.
• Docket Number: No. A--180,A--180
• Decision Date: 19 July 1950

Page 59

9 N.J.Super. 59 74 A.2d 907 MASSARI et al.
v.
EINSIEDLER.
EINSIEDLER
v.
MASSARI et al. No. A--180. Superior Court of New Jersey, Appellate Division. Argued May 22, 1950.
Decided July 19, 1950.

Page 60

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.

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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 [74 A.2d 908] 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

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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...