Shunken v. Cohen

MELVIN, J.

H. Cohen, one of the defendants, appeals from a judgment in favor of plaintiffs on their bill in equity, and against said Cohen on his action, by way of cross-complaint, for recovery on six promissory notes for five hundred dollars each. The other defendant made default, so the action as to The Traders Bank of Los Angeles (a corporation) need not be considered herein.

The transcript consists of the judgment-roll alone. There is no bill of exceptions and it does not appear that any party demurred to any of the pleadings. Before judgment the plaintiffs were permitted to file certain amendments to their complaint to make it conform to the proofs. These amendments were duly noticed and served on appellant’s attorneys, but no objection of any kind was made to them. The court found that in July, 1914, S. Shuken and H. Cohen entered into a copartnership, according to a written agi’eement, by which they were to carry on the business of buying, selling, and dealing in junk; that Shuken invested in the copartnership $7,458.13 and Cohen $1,588.76; that they continued the conduct of the business until December 23, 1914, when they mutually agreed to dissolve the partnership; that prior to the said date Cohen wrongfully took possession of certain books of account and papers belonging to the copartnership and wrpngfully denied Shuken access to them until after December 29, 1914; that between December 23 and December 29,

[281]

1914, Cohen, personally, and assisted hy one Joe Margolis, represented to Shuken and his wife that said Shuken had stolen certain of the firm’s moneys and that Cohen and Margolis could prove that fact by the books and papers in their possession, and that Shuken was guilty of a felony. It was also found that Cohen and Margolis demanded, then and there, that Shuken deliver to Cohen certain specified personal property used in the business and four thousand dollars in money, or that Shuken should retire from the copartnership, accepting as his share therein four thousand dollars. It ay as also found that Cohen and Margolis threatened that if Shuken did not comply with their demand they would cause his arrest and imprisonment. According to the findings it appears that plaintiffs, defendant Cohen, Margolis, and one Lyons, are Russian Jews; that Shuken is not conversant with the English language and is ignorant of the laws of this state concerning crimes and their punishments; that Shuken’s mental powers, owing to an injury to his head, had been impaired; that Margolis represented that he was about to be appointed to a position in the office of the district attorney and would have great power and influence in' prosecuting offenses; that said Lyons (who was a law student during a part of said period from December 23 to December 29, 1914), counseled and advised Cohen, and was present at some of the conversations between Shuken and Cohen and Margolis; that the Shukens had great confidence in Margolis and in his and .Lyons’ influence with the state and county officials; that S. Shuken was not guilty of any crime, but by reason of the threats and .statements of Cohen and Margolis, consented to the division of the copartnership property upon the demanded terms and executed a certain Avriting and delivered to Cohen a team of horses, wagon, and harness, five hundred dollars in cash, one-half of the hay belonging to the copartnership, and signed and delivered seven promissory notes, each for five hundred dollars, payable to Cohen. The court found that in parting with his property Shuken acted under the compulsion of menace and undue influence amounting to fraud upon him, The notes were put in The Traders Bank (as the court finds), and one of them was paid early in 1915. There were also findings to the effect that on December 23, 1914, Shuken’s total net investment in the copartnership was $5,358.13 (he having already been repaid two thousand one