Herman v. Blackman

FOX, J. In his complaint plaintiff alleges that on or about October 22, 1953, he entered into an oral agreement to sell certain stock that he owned in the NBH Corporation and in Lord’s Appliance Company, Inc., to defendant Harry Blackman, A1 Haytin and Sam Nassi for $15,000. The contemplated source of these funds was as follows: Defendant Blackman $5,000; Haytin $800; Nassi $800; and the remaining $8,400 was to come from funds that these two corporations owed Blackman, Haytin and Nassi. Each of these parties had a one-third interest in the funds owed them by the corporations.* None of the parties made any payments to plaintiff on account of this alleged purchase. On November 4, 1953, plaintiff received a cheek drawn on the account of Lord’s Appliance Company, Inc., in the sum of $6,500 and another check in the amount of $1,900 drawn on the account of the NBH Corporation. These checks were signed [615]by A1 Haytin and Zarmond Goodman, who were apparently authorized to sign checks on behalf of each corporation. Plaintiff immediately cashed both checks. Two days later Norman Herman, son of plaintiff, took to defendant Black-man a written document setting forth plaintiff’s understanding of the alleged agreement which was claimed to have been reached at a dinner meeting on October 22, 1953. Black-man refused to sign the document..

It was at this time that defendant Blackman learned that the above mentioned checks had been issued and delivered to plaintiff. Blackman immediately got in touch with Haytin and Goodman, who signed these checks, and protested their action.

On January 13, 1954, plaintiff filed suit against Blackman and his wife to recover the $5,000 which he alleged Blackman owed on his oral agreement to purchase the stock. Blackman filed an answer in which he denied making any agreement to purchase said stock. He also filed a cross-complaint in which he alleged that the payment to plaintiff of the $8,400 from the funds of the two corporations was “wrongful and without authority” and that he was entitled to one-third thereof, and prayer for judgment against the cross-defendant Herman for $2,800.

The court found there was no agreement between plaintiff and Blackman for the purchase and sale of said stock and accordingly rendered judgment “that the plaintiff take nothing by his complaint,” and that Blackman have judgment against Herman on the cross-complaint for $2,800.

Plaintiff does not challenge the sufficiency of the evidence to sustain the findings nor does he otherwise attack the correctness of the court’s findings and judgment on the complaint. It is therefore established by the court’s decision on the complaint that there was no agreement on the part of defendant Blackman to purchase plaintiff’s stock, The only basis upon which plaintiff Herman could have any right to this $2,800 is on the theory that there was an agreement between the parties for the purchase and sale of the stock. Since the court found there was no such agreement the plaintiff is not entitled to this money.