Union Garment Co., Limited v. Newburger

• Decision Date: 14 June 1909
• Docket Number: 17,649
• Citation: 124 La. 820,50 So. 740
• Court: Louisiana Supreme Court
• Parties: UNION GARMENT CO., Limited v. NEWBURGER et al. MOSS v. KORY

50 So. 740

124 La. 820

UNION GARMENT CO., Limited v. NEWBURGER et al.

MOSS v. KORY

No. 17,649

Supreme Court of Louisiana

June 14, 1909

On the Merits, November 2, 1909, Rehearing Denied November 29, 1909.

Appeal from Civil District Court, Parish of Orleans; George H Theard, Judge.

Consolidated actions by the Union Garment Company, Limited, against Sylvan Newburger and others, and by Hartwig Moss against Edward Kory. From a judgment for the first-named plaintiff, Moss and others appeal. Affirmed.

Benjamin Rice Forman, for appellant Moss.

Solomon Wolff, for appellants Kory and Ducros.

Charles Rosen, for appellee Union Garment Co., Ltd.

Titche & Rogers and B. I. Cahn, for other appellees.

PROVOSTY J. NICHOLLS, J.

OPINION

On Motions to Dismiss.

NICHOLLS, J.

In the certificate of the clerk to the transcript of appeal that officer certifies that:

The "answer of Edward Kory filed October 28, 1907, three notes filed July 24, 1908, and sheriff's indemnity bond filed September 13, 1908, are missing from the record, and cannot be found notwithstanding due and diligent search cannot be found."

The appellees move to dismiss the appeal by reason of the absence of those papers from the record.

Since the filing of the motions to dismiss a carbon copy of the missing answer of Edward Kory has been found, and replaces the original.

The practice of this court where a material part of the record or the evidence adduced has been lost through no fault of the appellant, and he is unable for that reason to bring up a record upon which the court can review the judgment appealed from, has been to remand the case to be tried de novo, and not to dismiss the appeal.

Under that rule, the motion to dismiss would be denied, and the cause remanded, if the situation of the cause was such as to require the application of that rule to this case.

As we are presently advised, the missing papers will not be necessary to enable us to pass upon the issues submitted in this case for our decision.

If, on the hearing, it should be ascertained that such is not the case, we can then order the case to be remanded. See, on this subject, Barton v. Burbank, 119 La. 227, 43 So. 1014, and the numerous authorities therein cited; Grubbs v. Pierson, 111 La. 101, 35 So. 474; Immanuel Presbyterian Church v. Riedy, 104 La. 319, 29 So. 149.

The motions to dismiss are denied.

On the Merits.

PROVOSTY J.

The following instrument is self-explanatory:

"This agreement made and entered into this 26th day of November, 1906, by and between

"(1) A. Kory & Sons a commercial and manufacturing firm of the city of New Orleans composed of Abraham Kory, Edward Kory and Max Kory,

"(2) Clarence E. Kory, Eugene Kory and Roscoe Kory,

"(3) Newburger and Levy represented by E. Levy, all designated hereafter as parties of the first part, and Silvan Newburger, party of the second part,

"Witnesseth:

"That whereas the firm of A. Kory & Sons is unable to meet its obligation and desires to offer in settlement of same the sum of 50% in cash, which amount they find it necessary to borrow from Silvan Newburger, now, therefore:

"In consideration of the agreement on the part of Silvan Newburger to advance the amount necessary to make the said settlement aggregating to a total of said firm, to be sold, collected or otherwise administered by him for the purpose of reimbursing himself for the said amount to be advanced as aforesaid. The said A. Kory & Sons and the individual members of said firm, hereby agree to vest the absolute and unrestricted administration of said property in the said Silvan Newburger to be disposed of in such a manner and for such price and on such conditions as, in his own judgment may deem best, said A. Kory & Sons binding themselves not to revoke this authority which is based upon an adequate consideration nor to interfere in any manner in the said administration.

"They the said A. Kory & Sons further agree to sign all papers, documents, transfers and checks and to make any and all endorsements that may be necessary to make this agreement effective and to sign and execute Powers of Attorneys authorizing the said Silvan Newburger to dispose of all the real estate belonging to the said firm or the individual members thereof in the city of New Orleans and should they fail to execute a separate power of attorney they agree that this instrument shall constitute and have full force and effect of a power of attorney and be sufficient for said purpose.

"The said A. Kory & Sons further agree to sign checks upon such funds of theirs as may be in banks, in favor of the said Silvan Newburger when requested by him to do so, in order to enable him to utilize the said funds in carrying out the above-stated object.

"The above-named Edward Kory and Max Kory furthermore agree to give their assistance, employing their whole time if necessary, to enable the said Silvan Newburger to administer the said assets and estate above described, collect outstanding accounts and to dispose of all the assets to the best possible advantage, their compensation to be fixed and paid by said Silvan Newburger as aforesaid, the said Silvan Newburger to have the right to dispense with their services whenever, in his opinion, no longer needed.

"The firm of A. Kory & Sons and the said Eugene Kory, Clarence Kory and Roscoe Kory, hereby promise and agree that they will hold the said Silvan Newburger harmless for any negligent act in the premises as well as for any of all errors of judgment or acts of omission in the premises, hereby expressly waiving and abandoning in advance, any claims that might accrue to them on account of such acts or omissions.

"The said A. Kory & Sons and the individual members thereof, Clarence Kory, Eugene Kory and Roscoe Kory and the said Newburger and Levy, hereby agree to postpone any and all claims that they might have against the assets of the said firm or the individual members thereof as owners or creditors until the aforesaid sum of $ 56,700 or whatever sum shall be required to pay the debts, together with expenses and charges, are reimbursed to the said Silvan Newburger.

"It is agreed that said Silvan Newburger shall have the right to pay out of the proceeds the charges, costs, attorney's fees and expenses of administration, clerk hire, and the like.

"In witness thereof the parties have hereunto signed their names in duplicate in this city of New Orleans on this twenty-sixth day of November, 1906.

"A. Kory & Sons.

"Edward Kory.

"Max A. Kory.

"A. Kory.

"Eugene Kory.

"Clarence Kory.

"Roscoe Kory.

"Silvan Newburger.

"Newburger & Levy, per L. Levy.

"Witness:

"Bernard Titche.

"Bertrand I. Cahn."

For the execution of the trust with which he was charged by this instrument Newburger, by consent of all parties, associated with himself Mr. Sol. Wexler.

Among the creditors of A. Kory & Sons were the Whitney-Central National Bank, Newburger & Levy, and Eugene, Clarence and Roscoe Kory. On the same day on which said instrument was executed, the creditors here named and the liquidators Newburger and Wexler entered into a contract, to which A. Kory & Sons, as a firm and individually, were parties, by which said creditors agreed to postpone their claims until all the other creditors of A. Kory & Sons had been settled with; and, in order to facilitate said settlement, the bank agreed to advance $ 56,700, to be repaid out of the first proceeds realized from the assets of A. Kory & Sons, and all the parties agreed as to how the other proceeds should be apportioned after the said $ 56,700 should have been refunded.

A. Kory had furnished the entire capital of A. Kory & Sons, to wit, $ 50,000.

The premises in which A. Kory & Sons carried on its business had been acquired by an act reciting that the property was sold

"unto Messrs. A. Kory & Sons, a firm domiciled and doing business in this city, composed of Messrs. Abraham Kory, Max. A. Kory and Edward Kory, herein purchasing * * * in the proportion of an undivided one-third each."

When, in the execution of their said trust of liquidating the affairs of A. Kory & Sons, Newburger and Wexler caused the said real estate to be advertised for sale at public auction, Edward Kory objected, and served notice upon them that he revoked the power of attorney given them to sell his property. He at the same time made an effort, through his counsel, to have them agree to postpone the sale, or, at any rate, to fix an upset price of $ 25,000 upon the property. He claims that a positive assurance was given him that the sale would not take place.

The property was adjudicated to one Flonaker. Flonaker was purchasing for the plaintiff company; but his authority to do so had not been given by formal resolution by the plaintiff company's board of directors.

On the day after the auction sale, but before the adjudication could be consummated by the execution and registry of a deed of sale, Edward Kory placed a mortgage upon his undivided third of said property for $ 7,500 represented by notes to the order of himself, and by him indorsed in blank. The mortgage purported to have been given to one Ducros; but Ducros was a mere nominal mortgagee, and there was no real mortgagee.

A few days later the plaintiff company by a formal resolution of its board of directors ratified the purchase made by Flonaker for its account; and was given possession of the property by the liquidators. It then brought the present suit nominally for specific performance of the auction sale, but in reality for the annulment of the mortgage executed by Edward Kory.

The grounds of the latter demand are that said mortgage is a simulation, and, if not a simulation, has been executed in fraud of the...