MacDonald v. Rosenfeld

WARD, J.

There appears in the clerk’s record of this action for accounting and an injunction, two notices of appeal filed by plaintiffs W. W. MacDonald and John R. Pom-fret: the first from an interlocutory decree, and the second from the whole of the final judgment. There also appears a notice of appeal by defendant Max Rosenfeld setting forth five designated grounds of appeal.

Plaintiffs’ opening brief states as grounds of appeal that the whole of the judgment is erroneous and in defendant’s brief it is contended that the court ‘1 erred in allowing plaintiffs a credit of $30,734.13.” The latter statement is condensed but sufficiently definite to guide this court in determining the contention of the respective parties and the merit of each appeal.

[223]

The complaint sets forth that plaintiffs are copartners doing business under the name of MacDonald Truck and Manufacturing Company, as sole owners, and that plaintiffs and defendant entered into an agreement in 1934 whereby defendant was to act as managing trustee of the business, advance money thereto, and receive for his services $300 per month. For the purpose of security plaintiffs’ assets were assigned to defendant. It then alleges that prior to September 2, 1944, all indebtedness owing to defendant on account of loans and salary were paid, and that plaintiffs gave defendant notice that they were exercising their right to take over the entire management and demanded that he turn over to them all assets and render a statement of all transactions conducted by him as managing trustee. The complaint further alleges that the demands were not complied with and that defendant is conducting the business in a manner that is not conducive to its best' interests. The complaint alleges generally acts performed by defendant upholding the previous allegation. Plaintiffs prayed for an order restraining defendant from further participating in the business. A temporary restraining order was issued.

Defendant’s answer, filed September 29, 1944, not only referred to the allegations of the plaintiffs’ complaint—denying that all indebtedness owing to him had been paid, but set forth the following history of the parties’ business relations; “. . . during the year 1932 defendant Rosenfeld loaned to plaintiffs herein small sums of money; that plaintiffs were then operating under the name of MacDonald Motors, Inc., but failed in business and were adjudged bankrupt in the year 1933. Prior to said bankruptcy plaintiffs had borrowed about $2200.00 from the Advance Company and had given ... a chattel mortgage . . . defendant did buy said mortgage from said Advance Company . . . Thereafter all of the right, title and interest of said MacDonald Motors, Inc. was sold by the Trustee in Bankruptcy thereof and was purchased by one Richard F. Guggenheim . . . said Guggenheim in connection with plaintiffs and Tevis Jacobs, started the business under the name of MacDonald Truck & Manufacturing Co. . . . Plaintiffs and said Guggenheim and Jacobs then stated and represented to defendant Rosenfeld that said Guggenheim and Jacobs could no longer provide any additional money for said business . . . and requested defendant . . . to purchase said machinery and other assets . . . That in