Zielmann v. Copelof

• Decision Date: 03 March 1919
• Citation: 232 Mass. 393,122 N.E. 552
• Parties: ZIELMANN v. COPELOF et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

232 Mass. 393

122 N.E. 552

ZIELMANN

v.COPELOF et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1919.

Exceptions from Superior Court, Suffolk County; John D. McLaughlin, Judge.

Bill in equity by Joseph S. Zielmann against Maxwell Copelof and another. There was a ruling for plaintiff, and defendants except. Exceptions overruled.

The evidence on the issue of conditional delivery of the note in suit was as follows:

The plaintiff offered the note a copy whereof is annexed to the bill of complaint, in evidence and then rested.

The defendant called as a witness the plaintiff who testified substantially as follows:

That for about 10 years he was employed by the M. & C. Skirt Company and was the holder of 90 shares of its stock, each of the par value of $100; that some time just before he severed his connection with the M. & C. Skirt Company he had a talk with the defendant, in which he told the defendant that he was going to leave and some time in August, 1916, he again met the defendant and said to him that he was going away in a very little while and would like the defendant to buy his stock back, that as he was through with the concorn he did not want to have anything to do with it in any way; that he would prefer not to have any holdings in it whatsoever; that Mr. Copelof said, ‘Yes; I will buy the stock from you and will give you $5,000 for it;’ that he (witness) told him that he did not think that was enough in view of the fact that he held $9,000 worth, and the defendant always told him the stock was worth that, and would be worth more, and defendant replied that is what he gave to Mr. Hite, and that the plaintiff ought to be satisfied with that; that Mr. Hite had been a stockholder in the company owning the same amount of stock as the plaintiff, and that Mr. Hite had retired from the company either in June or July previous; that he (witness) asked Mr. Copelof to send him a letter to that effect, and he said certainly, and that later Mr. Copelof did; that there was no talk about plaintiff's indebtedness to the corporation, and that the note in evidence represented the whole transaction existing between the plaintiff and defendant; that he did owe the company something, and that he did have some talk before the note was executed about his indebtedness to the company, and that this indebtedness was deducted from the total amount, namely, $5,000; that he also got some money from the M. & C. Skirt Company which came through the M. & C. Skirt Company; that he received $500 in two checks, one check for $300, and the other check for $200 from the M. & C. Skirt Company as part of the $5,000 agreed upon for the plaintiff's stock; that in plaintiff's answers to interrogatories filed by the defendant he stated that the defendant had paid the plaintiff $300 in cash, and that he intended it to mean that the defendant personally had paid him $300 in cash on account of the purchase price of the stock, but that it was the company that had sent its check direct to him; that he did not understand from the fact that his indebtedness to the company and from the check being signed by the company that he was doing business with the company through its treasurer (the defendant), and that he supposed Mr. Copelof was to take up his debt to the company in any way that he, Mr. Copelof, liked, but that nothing was said about it; that he did not understand that the $1,200 that he owed the company was being set off as a company obligation, although in fact it was a company obligation, and was set off as such; that he understood that when the note for 3,700-odd dollars was to be given the indebtedness of $1,200, was to be wiped out; that the defendant Copelof did not tell him anything about the notes given for the Hite stock, and that he did not know that the note which Copelof gave the plaintiff would mature about the time that the notes to Mr. Hite were paid; that the note was dated far ahead, but that nothing was discussed about it; that he did not know that the reason the note was dated so far ahead was that the Hite obligation was outstanding; that the defendant Copelof did not tell him that he did not want to give him a company obligation because the Hite obligation was outstanding; that in the first instance the plaintiff wanted the M. & C. Skirt Company note himself and did not want the defendant's note; that he wanted some cash and an M. & C. note; that he did not get an M. & C. note, and that there was a reason for it; that Mr. Copelof told him some reason for it, and that Copelof did not say that he would not give the plaintiff an M. & C. note on this particular day, but would give his own note, or if the note was not taken up, or if the M. & C. Skirt Company failed to pay it, he would give the plaintiff a corporation note; that about the time this note became due Copelof did offer him $500 in cash and a company note for the balance, and the plaintiff refused, because it was not a personal note, though that is what plaintiff wanted in the first instance; that the note was to be presented for payment at the office of the M. & C. Skirt Company, but that the defendant did not present it there, but put it in the Boylston National Bank where the M. & C. Company did business, and that the note was payable to the plaintiff personally and was not negotiable.

On cross-examination he testified that he sent the defendant the following letters:

Exhibit 6.

‘The Lerner Waist Co., 19 West 36th Street, New York.

‘Mr. M. Copelof, c/o the M. & C. Skirt Co., 9 Federal Court, Boston, Mass.-Dear Maxwell: I received your note also check, for which I thank you. Apparently this was sent in your absence because I notice that Miss Waters signed the letter for you.

‘Did you notice that the note does not bear interest? Most likely, this is an oversight. Will you be kind enough to write me at your convenience whether you want me to return the note for a new one or will you fix it up with me on one of your visits here.

‘By the way, thank you for the information about Babcock being located in McKeesport. I knew he was coming there but did not know when. Maybe I can reach him after all.

‘With regards, I am, yours,

‘September 30, 1916.

[Signed] Joe.

‘JSZ/EA’

Exhibit 7.

‘New York, Oct. 12, '16.

‘Dear Maxwell: I rather did expect interest on the note you gave me for my stock-but of course I remember we did not discuss that at all. However if you feel that I am not entitled to it-certainly it is perfectly agreeable to me to waive it. I wrote about it only because I thot it was left out thru error during your absence.

‘I have perfect confidence in you and feel that you will not forget me and know you will treat me right in accordance with your word to me. I would appreciate very much an early part payment of some kind-just as soon as you can spare it.

‘Inclosed find a mileage book which I found among some papers in my grip. This belongs to the M. & C. Hoping things are shaping nicely for you and with kind regards to you & all the rest of the folks, I am,

‘Sincerely,

[Signed] Joe.'

-and that he received from the defendant the following letters:

Exhibit 8.

‘M. & C. Skirt Co. Boston.

‘Oct. 13, 1916.

‘Dear Joe: Your letter of the 12th is received and I was glad indeed to hear from you.

‘I thank you for your encouragement concerning our new plans and I am happy to announce that we have now readjusted our manufacturing facilities and are now manufacturing under full steam in six distinct plants which will enable us to give far better value and service than ever before.

‘I acknowledge receipt of the mileage book and I thank you for returning it to us.

‘I can assure you that I shall be pleased to make you an early part payment to apply on your stock at my very earliest opportunity.

‘With my kindest regards and best wishes, I am, as always,

‘Sincerely yours,

M. C.

‘GG:K.’

Exhibit 9.

‘M. & C. Skirt Co.

‘Boston, Dec. 31, 1917.

‘Mr. J. S. Zielmann, c/o Lerner Waist Co., 15 West 36th St., New York, N. Y. Acknowledging receipt of yours of the 29th:--

‘The proposition I made you in New York is the very best I can do, and I stand ready to carry it out upon hearing from you to that effect.

M. Copelof.'

That while the plaintiff was with the M. & C. Skirt Company no payments were made by Mr. Copelof on his personal check, but that Mr. Copelof did have a personal bank account; that after Mr. Copelof had offered him $500 in cash, the plaintiff said he did not want an M. & C. note because it was purely a personal transaction; that the defendant gave as a reason why he wanted the plaintiff to take a corporation note for $3,254.96 rather than his note, the fact that it was a corporation affair.

On redirect examination he testified:

That one of the reasaons why he would not take from the defendant a corporation note when the defendant offered it to him was that the plaintiff's brother-in-law was a stockholder in the M. & C. Skirt Company with considerable holdings, and he did not want to embarrass his brother-in-law and that the relations between the defendant and plaintiff's brother-in-law were not of the best; that he received the following communication:

Exhibit 5.

‘September 25, 1916.

‘Mr. J. S. Zielmann, 19 West 36th St., New York, N. Y.-Dear Mr. Zielmann: In compliance with our recent agreement inclosed please find check for $300 and note for $3,754.96, payable December 31, 1917.

‘Very truly yours,

M. & C. Skirt Co., per L. E. W.'

But when he received it he did not demur to it; that he did not notice at the time he received the note that it was dated September 25, 1917, and the letter inclosed with it was dated September 25, 1916.

Maxwell Copelof, the defendant, testified:

That he was the general manager of the M. & C. Skirt Company and had been its treasurer since its organization in 1901; that the M. & C. Skirt Company was a corporation capitalized for $250,000 and had paid in stock of approximately $190,000; that Mr. Zeilmann, the...