Opinion
01-11-1923
KOLLER-VESPER v. WILDEROTTER et al.
Abner Kalisch, of Newark, for complainant. Philip J. Schotland, of Newark, for defendants.
Bill by Eugenia L. Koller-Vesper to set aside a sale of her interest in a corporation to Frederick W. Wilderotter and others. Bill dismissed.
Abner Kalisch, of Newark, for complainant.
Philip J. Schotland, of Newark, for defendants.
BACKES, V. C. This bill is filed to set aside a sale made by the complainant to the defendants of her interest in the E. L. Koller Mfg. & Coal Chute Co., a corporation, on the ground that at the time of the sale she was temporarily non compos mentis, and thatundue advantage was taken of her. The purchasers are her cousins, and one of them was her lawyer. She owned all the outstanding 200 shares of the capital stock of the company, three of which were held in her husband's name. She assigned to the defendants severally and in various lots 196 shares, for which she received from them severally cash and securities amounting to $9,800, the par value of the stock, and from the company its note or notes for $13,000 secured by a chattel mortgage for $10,000 on the property of the company. The price of $22,800 was arrived at by an exact inventory and appraisement of the tangible property, to which was added a round sum for good will. The sale, in fact, was of the plant, of which the complainant was really the owner, though in corporate form, and the negotiations were conducted on that basis. Her ownership was transferred by the assignment of her stock holdings.
My conclusions are that at the time of the sale Mrs. Koller-Vesper was not incompetent; that she was competent and acted knowingly; that she drove a shrewd bargain; that she got full value, maybe more; that she got the consideration she bargained for; that in respect of the sale she did not bear the relation of client to one of the purchasers who was her lawyer; that she bargained with the other purchasers, and her lawyer's connection with the sale was incidental and bore no relation to his duty to her as counsel—he furnished some of the consideration price; that her lawyer's connection with the sale was that of a scrivener.
Mrs. Koller-Vesper conducted the business of the corporation successfully for years until a short time before her alleged collapse, which she claims occurred a week or two before the sale. She was an unusually smart business woman. She drank, and heavily at times, and neglected her affairs latterly. Her husband left her because of her evil habit and went to Europe. Worry over this, aggravated by drink, was, in my judgment, the extent of her alleged incompetence. She concluded to sell out and follow him, and she turned to her cousins, the defendants other than the lawyer, as likely purchasers. The undisputed evidence is that Mrs. Koller-Vesper negotiated the sale, not. only intelligently and knowingly, but masterfully and overbearingly, and spurned the suggestion of the advice of counsel. The mass of testimony bearing upon her activities in conducting the sale, which, if believed—and I believe it— leaves not the shadow of doubt of full mental equipment. Her only response to all of it is that she does not remember, and to this she clung tenaciously throughout her examination, well remembering everything up to a point dangerously near the sale, and everything after her supposed cure two or three months later. The intervening space was a blank, completely blotted from her memory, according to her actions—shoulder shrugs, eye and head movement—and repeated avowals. Her attitude on the witness stand impressed me as feigned, studied, and well-acted. I am unwilling to accept it as genuine. I am unwilling to believe that she was not sensible to the sale at the time it was made, and alive to its details, and that during the period of her alleged collapse she was not fully competent to transact business. She proposed the sale, and caused the inventory and appraisement to be made, bargained for, and fixed the price, received part of the consideration in cash, and deposited it in her bank, and took the securities and had them recorded. Drunk, as she now claims to have been, she had a wonderfully keen eye to self-interest. An instance, only one of many, of her business faculty at that time, and which she did not attempt to explain, is the indorsement made on a check given to her by one of the purchasers in part payment. This check was drawn to the order of Eugenia L. Koller-Vesper. Her bank account was in the name of Eugenia Vesper. She indorsed it for deposit "Eugenia L. Koller-Vesper," then "Eugenia Vesper" in accommodation to banking regulations.
I have mentioned that one of the defendants was the complainant's lawyer, but not in respect of the sale. The complainant negotiated the sale with two of the other purchasers, and after it was completed the lawyer-defendant was called in to draft the papers. His brothers had not sufficient capital to swing the bargain, and he contributed to the purchase price to help them out, and took 50 shares of the stock. Even in this remote relation the lawyer-defendant advised the complainant to take other counsel, which she refused to do. The doctrine of Dunn v. Dunn, 42 N. J. Ell. 431. 7 Atl. 842, is not invokable.
The complainant has not shown any fraud or imposition, and is not entitled to relief.
The bill will be dismissed.