194 A.D. 110 | N.Y. App. Div. | 1920
This is one of several litigations between Bonsall and his stepdaughters, Mrs. Kineon and Mrs. Shiverick, of which several have come to this court within recent years. In fact each recent volume of the reports of this court contains one of those cases. A brief summary of the situation may be helpful.
The mother of the two now young women was widowed when they were very young, but left by her husband with a considerable estate amounting to several hundred thousand dollars. In a few years she married Bonsall and soon thereafter died, leaving a will which gave to him her entire estate; and I have never been able in any of the'several records of those appeals to find any evidence that he ever had any property except that which his wife thus gave him and its proceeds. After a time he brought from New Hampshire his mother and installed her as the mistress of his home; and the two girls grew up together in that home in very much the relation of daughters, with the two Bonsalls as parents; and
The companion or corresponding action of Mrs. Kineon was tried at the Westchester Special Term, another justice presiding, and resulted in a complete success for her, giving her a recovery against him for the sum of $385,819.93; and her judgment was unanimously affirmed by this court and by the Court of Appeals (Cornell v. Bonsall, 187 App. Div. 904; 228 N. Y. 532), although the facts were at least to my mind substantially the same in her case as in the like one of her sister. It may, however, be remarked that, although successful in obtaining a judgment, she has, so far as a real result is concerned, fared no better, except in the matter of adjudged costs, than the other sister who was defeated; as Bonsall thus far has been able to stand “ execution proof,” execution having been duly issued against him and returned unsatisfied.
One the “ Innovation Trunk Company,” to hold the patents and actually manufacture; another, the “ Innovation Ingenuities, Inc.,” to market the product, having an agreement to pay to the former corporation cost and ten per cent; another the “ Precious Woods Handling Company ” to purchase timber land and furnish material; and still another the “ S. W. Bonsall Timber Properties, Ltd.,” which had some not clearly explained dealings in California lands, also for timber purposes. Originally the stock of all belonged, at least nominally, to him, excepting a share to each of several employees to qualify to act as directors. In or about December, 1912, he was threatened by one Montpelier with litigation, and being apprehensive of the result he transferred his property to the two young women, they being then practically his wards. Certain land in Mamaroneck, which had been part of the transfer to Mrs. Shiveriek, formed the basis of his action subsequently brought to compel her to reconvey the same to him, the Montpelier threat having proved abortive and Mrs. Shiveriek evidently having attempted to hold on to the property as some indemnity in her favor against him. In that action he succeeded, and his judgment was affirmed in this court and by the Court of Appeals. (Bonsall v. Shiverick, 186 App. Div. 958; 228 N. Y. 527.) When the Montpelier litigation was threatened Bonsall held ninety-eight of the one hundred shares of the stock of the “ Innovation Trunk Company,” and, as part of his transfer to avoid the Montpelier threat, he transferred his certificate of that stock to Mrs. Shiveriek and had her indorse in blank the one reissued to her and at once deliver it to him. Subsequently in March, 1914, he surrendered that certificate and in place of it had four certificates issued to him, viz., one for forty shares, one for thirty, one for twenty and one for seven shares; and the same day surrendered the first three and, in place of them,- had the officers of the company, he being then president, issue a certificate in the name of Jacob Henry for forty shares, another for thirty shares in the name of the defendant Hoffman, both of whom were employees of the company and had long been associated with him, and another for twenty shares in the name of the defend
The defendants at the trial claimed:
(a) That the transfers by Bonsall of the stock in March, 1914, were made in consideration of his agreement made long previously, to the effect that, for their work for him and his corporations, he would, in addition to their stated salaries, give to them, the several transferees, an interest in the business; and
(b) That ■ at the time of those transfers Bonsall was by them left amply solvent so far as any claim of the plaintiff is concerned.
The learned trial justice in his decision found:
(a) That those transfers were all without consideration; and
(b) That they were made and accepted in furtherance of a scheme to place Bonsall’s property out of the reach of the plaintiff and to guard it against the contingencies of his business. But he made no affirmative finding as to Bonsall’s financial situation after those transfers were made. Moreover, he declined to find -at the request óf the defendants that he was then left solvent.
The contentions of the appellants here appear to be threefold, namely:
(b) That even if the promise to give an interest in the business was too indefinite for legal enforcement it did entitle the promisee to sue and recover upon a quantum meruit; and
(c) That there was no proof that Bonsall was not after those transfers left fully solvent. •
I conclude that neither of these contentions is well made.
As to the first of them, it is true that the surviving transferees testified most amply to the antecedent making by Bonsall of the alleged promises; yet the circumstances were all so suspicious that I think that the learned justice was amply justified in disbelieving their evidence. The idea that in the emergency of his business he would turn over to his employees practically his entire interest in it as additional compensation for past services seems upon its face so improbable as to require very satisfactory evidence, not alone to warrant but, as is the test here, to require its finding. The .trial justice had the parties before him under examination and personal view; and evidently he did not believe them as witnesses and neither do I from the record.
In the next place, I conclude that the antecedent promise as testified to by each of the defendants was too general and too indefinite to warrant any recovery thereon. It was at most only a general promise to give a bonus, which we have lately had occasion to hold ineffective. (McDonald v. Acker, Merrall & Condit Co., 192 App. Div. 123.) The testimony as to the terms of the promises was quite general, those to Henry, “ If anything comes of this thing, you will naturally be taken care of; ” “ That they [meaning the employees who stayed] would receive an interest in the business; ” that the business would ultimately go to the “ loyal employees; ” “ that those people around him who had contributed to the success of the business would participate eventually, through ownership, in proportion as they had contributed to that success; ” “ Those who helped me to make it [the business] will get it; ” “ Jake [meaning Henry] has a personal interest in this matter; ” and again, “ Jake understands his interest
As to the second contention of appellants here, namely, that the promises at least warrant a recovery of something upon a quantum meruit and so constituted sufficient consideration, the finding that the transfers were gifts involved a finding contrary to this contention. I think that such finding was fully warranted. Henry had all the time, or much of it, a royalty in addition to his salary; and the salary of thirty-five dollars to forty dollars a week paid to Miss Greiff was in those years ample compensation in this locality for the services of a woman secretary as Miss Greiff was. Hoffman, moreover, was in receipt of a v'ery substantial salary, seventy-five dollars a week.
As to appellants’ third contention, namely, that there was
Moreover, the equity of the judgment may be sustained upon the following ground: Bonsall towards his stepdaughter, then practically his ward, held in equity the position of a trustee. As such he commingled her funds with his own by investment in such a fashion that it became extremely, difficult, if not impossible, to separate them. Under those circumstances equity impressed upon the whole a trust in her favor so that in her behalf any part of it may be seized and applied pro tanto to the satisfaction of her judgment. Upon the whole I am satisfied that the judgment appealed from is entirely just and well warranted by the evidence.
Appellants further contend here that the case should not have gone to trial without bringing in Bonsall as a party defendant. The evidence, however, indicated that, as between the donor and the donee, the gift of the stock was absolute, however improbable that may be; and, therefore, he was not a necessary party to this action.
Therefore, I advise that the judgment appealed from be affirmed, with costs.
Present — Jenks, P. J., Mills, Rich, Putnam and Kelly, JJ.
Judgment unanimously affirmed, with costs.