Bethlehem Steel Co. v. Uppercu Corp.

Lawrence, S. C. C. This suit is based on part of a series of promissory notes executed by defendant corporation to plaintiff and endorsed by defendant Uppereu. The sum sought to be recovered admittedly remains, due and unpaid. It appears that on or about June 27th, 1929, Mr. Uppereu was the controlling owner not only of defendant corporation, but of another called Universal Shock Eliminator, Incorporated. The latter got into financial difficulties and, at his instance, a meeting of its creditors was called, among them the plaintiff company, at which it was proposed by him that the property of the corporation in question should be sold, the proceeds as to claims not exceeding $1,000 prorated and distributed to such creditors, and the remainder of the claims assigned to the defendant corporation and secured by its notes, endorsed by Mr. Uppereu. An agreement to this effect was duly signed and carried out, with the result that a series of notes, payable at recurring periods, for installments of the unpaid indebtedness, were made by the Uppereu Corporation and endorsed by him. These notes appear to 549 have been issued by the corporation after formal ratification of the composition agreement and later in part paid. The claims, including that of plaintiff, were duly assigned to the corporation, in pursuance of the agreement. The notes not paid, so far as plaintiff is concerned, are here in suit. The answer of defendant corporation sets up that the notes were without consideration and ultra vires. Motion is now made to strike this answer as sham. The supporting affidavits do not materially differ, either on the part of the plaintiff or defendant, as to the history of the transaction, but serve to clearly disclose the intimate relation of the defendants and Universal Shock Eliminator, Incorporated, and the mutual interest involved. That the answer should be striken seems apparent. The principles of law applicable are indicated in Jesselsohn v. Boorstein, 111 N. J. Eq. 310; 162 Atl. Rep. 254, and in Merchants Refrigerating Co. v. Fenchel Realty Co., 9 N. J. Mis. R. 971; 156 Atl. Rep. 275, and cases cited. The conclusion is that the motion should be granted. A rule may be submitted áccordingly.