Magg v. Miller

VAN ORSDEE, Associate Justice. This appeal is from a decree of the Supreme Court of the District of Columbia, dismissing the bill of appellant, Magg, in an action against the Alien Property Custodian and the Treasurer of the United States to recover certain stock seized and held by them. It appears that Magg has resided in Switzerland for more than 52 years, excepting 1% years’ residence in Paris, and that he became a citizen of Switzerland, April 27, 1899. On April 10, 1915, one Georg Wustenfeld, a citizen of Germany, purchased 850 shares of the capital stock of the Bearings Company of America, evidenced by stock certificate No. 128. The certificate was delivered to a company of New York brokers and held by them until the shares were sold by Wustenfeld to Magg on February 22, 1917. During the period between the purchase and sale of the stock, Wustenfeld received the dividends thereon at the rate of about 2per cent, per month. The sale of the stock from Wustenfeld to Magg is evidenced by the following written agreement: “Senator Georg Wustenfeld, Hanover, Hunden, is the owner of 850 shares at a nominal value of 8100 each of the Bearings Company of America, Ban-caster, Pa., U. S. A., which shares are at this time deposited with the New York banking firm of Knauth, Nachod & Kuhne, New York. By these presents Mr. Wustenfeld sells these shares to Mr. Joseph Magg, Zurich, Wiesenstrasse 17, at a total price of 200,000 dollars (two hundred thousand dol.). “Mr. Wustenfeld cedes at the same time explicitly his rights to have these shares handed over by Messrs. Knauth, Nachod & Kuhne to Mr. Magg. “10,000 marks of the sale price were paid in cash, the remainder will be paid by counter-payment. “This contract was made in double and one copy was handed to each of the signing parties. “Schweinfurt, /m., February 22, 1917. “[Signed] Senator Georg Wustenfeld. “Joseph Magg.” This contract was duly witnessed by a counselor of justice and certified to by a notary public. The consideration, $200,000, was fixed — 975 — on the basis of the normal exchange of the Germán mark, or 4% marks to the dollar. In other words, the consideration to be paid by Magg for the 850 shares of stock was $200,000, represented by 840,000 marks. Of this consideration Magg paid Wustenfeld, on the signing of the contract, 10,000 marks, leaving a balance due of 830,000 marks. This was paid as follows: Magg secured from one Ernst Sachs an assignment to Wustenfeld of four-fifths interest in the copartnership known as F. Gottschalk & Co., valued at 830,000 marks. This assignment was executed and delivered to Wustenfeld on February 23, 1917. It, however, appears that Sachs did not own a four-fifths interest in the firm of Gottschalk & Co., but only a two-fifths interest; one-fifth interest, prior to the transaction, was owned by Wustenfeld, and the remaining two-fifths interest was owned by one Hedwig Ficktel, who was the widow of the deceased partner of Sachs. However, Sachs obtained an assignment to Wustenfeld of the two-fifths interest belonging to Mrs. Ficktel, and thereby was enabled to carry out the transaction. Thus Wustenfeld was paid the full consideration for his stock. This brings us to the relations existing between Sachs and Magg, upon which the motion for dismissal of the bill in the court below seems to have been based. Magg was the brother-in-law of Ernst Sachs, Sachs having married Magg’s sister. Sachs was indebted to Magg, and in an account stated between them February 23, 1917, it appeared that this indebtedness amounted to 746,000 marks, which was offset against Magg’s indebtedness to Sachs of 830,000 marks, growing out of the Wustenfeld transaction. The difference of 84,000 marks, Magg paid as follows: 10,000 marks in cash; 4,000 marks allowed Magg for expenses; 80,000 marks transferred by Magg from Switzerland to the Deutsche Bank in Berlin, where it was placed to the credit of Sachs. It thus appears that Magg paid as consideration for the Bearings Company stock 94,000 marks, of a normal exchange value-of $22,372, and in addition canceled a debt which he held against Sachs amounting to 746,000 marks, of a normal exchange value of $177,542. The indebtedness of Sachs to Magg grew out of a transaction covering a long period of years. It appears that Magg advanced money for a period of over 40 years to the parents of Ernst Sachs, Josef and Pauline Sachs, which Ernst obligated himself by written and verbal promises to pay. These transactions culminated in a settlement between Magg and Ernst Sachs on July 15, 1914, as follows : “Contract between Mr. Josef Magg, of Zurich, Wiesenstrasse 17, and Commercial Counselor Ernst Sachs, of Schweinfurt on Main, the following contract has been agreed upon this day: “Sec. 1. Whereas, Mr. Josef Magg has a claim for money lent against Mr. and Mrs. Josef and Pauline Sachs, formerly of Constance, which amounts up to date, inclusive interest, to Mk. 660,000 (six hundred and sixty thousand marks). , “Sec. 2. Mr. Josef Sachs died, and left his widow, Mrs. Pauline Sachs, as heir; consequently the claim of Mr. Josef Magg has been transferred upon the former. “Sec. 3. Already during the lifetime of Mr. Sachs’ father, Mr. Ernst Sachs, commercial counselor, promised the former repeatedly that he would take over — 976 — tlie debt of his parents, if ever he should be in a position to do so, and pay back Mr. Josef Magg. “Sec. 4. Since Commercial Counselor Ernst Sachs is now in a position to live up to the promise given to his parents, he has taken over said debt as sole debtor and obliges himself to discharge his parents, respectively his mother, who is still living, and to pay back the money owed to Mr. Josef Magg, who recognizes as sole debtor Mr. Ernst Sachs, discharging thereby the latter’s parents. “Sec. 5. Mr. Magg agrees to let the debt remain until further notice upon payment of a yearly interest of 5% (five per cent.) on the condition that six months’ notice is to be given for the repayment. “Schweinfurt on Main, July 15, 1914.' Ernst Sachs, “Joseph Magg.” There is ample evidence in the record showing the advancement of money by Magg to the” parents of Ernst Sachs, to support the validity of the above settlement. On the other hand, no evidence was adduced whatever to challenge the bona fides of this settlement between Magg and Sachs. The settlement was made before the beginning of the World War. It was made when no one even contemplated that the United States would be at war with Germany, or that there would be any possibility of the confiscation by the United States of the Bearings Company stock, or that Magg would three years hence .become a purchaser of the stock in question. We think this Settlement lies at the basis of this case. There is a total absence of proof challenging the direct testimony of the parties to the effect that it was made upon the date which it bears. The settlement occurred at a"time when there could have been no motive whatever for anticipating the future events which have transpired, culminating in the seizure of the stock in question by the United States. Time and again Ernst Sachs, in written communications appearing in the record, acknowledged his liability for the debt due from his parents to Magg. In the accounting made between the parties, as shown by the contract of July 15, 1914, 660,000 marks were found to be due Magg, which Sachs obligated himself to pay, with interest at 5 per cent, per annum, when called upon by Magg to make payment. The contract of July 15, 1914, was a valid and enforceable contract in Germany, as testified to by Gustav Wirth, a distinguished German lawyer. This witness, after having the facts presented to him upon which the agreement of July 15, 19Í4, were based, was asked: “Is suck a contract as Plaintiffs Exhibit 13 a legal and enforceable contract under the German law?” To which he replied: “This question must be answered in the affirmative. The contract of July 15, 1914, represents the taking over of a debt according to sections 414 and 415 of the German Civil Code. The manner in which it is drawn up shows that it has been drawn up by a lawyer, for it repeats in part the words of the German law.” The witness was further questioned: “Could Ernst Sachs, in your opinion, successfully defend against a suit brought against him by Josef Magg in the German courts under the said contract, Plaintiff’s Exhibit 13, on the ground" that the claim therein asserted is outlawed or prescribed by the German law, or on the ground that there was nothing of value passing to him, Ernst Sachs, for his promise to pay as expressed in Plaintiff’s Exhibit 13?” — 977 — To which the witness replied: “None of these two foundations would enable Ernst Sachs to obtain the dismissal of such a suit on the part of the German courts.” On cross-examination the witness was asked: “Assume that in 1880, at the time of the proceedings referred to in Exhibits 18 and 19, that Joseph Magg received notice of those proceedings, and that at that time or immediately thereafter he waived his claim against Joseph Sachs, testifying that thereby he did him (Sachs) a great service. Would that make any difference in your answer to question No. 15?” To which the witness replied: “This goes without saying. In that case the claim wonld be extinguished. It must, however, be taken into consideration that according to the German law the waiving is not a one-sided declaration, hut a contract. The declaration of the waiving must be accepted by the debtor.” On a redirect examination the witness was asked: “Would the fact that Joseph Magg stated to Joseph Sachs, at or about the time of the dates of Plaintiff’s Exhibits 18 and '19, that he would not press his claims against him, Joseph Sachs, at that time, act as a waiver of his, Magg's, claim against Joseph Sachs?” To which he replied: “Such a declaration would not be considered by the German law as a waiver; it would merely be considered either as a postponement or a judicially not in the least binding courtesy.” On the matter of the running of the statute of limitations, the witness was asked: “Am I correct in understanding, then, that it is your opinion, which opinion is based on section 222, par. 2, of the German Civil Code, that if, after the expiration of the 30-year limitation, the debtor acknowledges in writing his old debt to his creditor and promises to pay it, that in such event, on a subsequent suit in the German courts, based on the new promise, the debtor could not successfully defend such suit before the German courts by raising the defense of the 30-year limitation?” To which he replied: “Your assumption is correct.” The evidence is indefinite as to whether in fact the waiver was accepted by either Joseph Sachs, Pauline Sachs, or Ernst Sachs. By the agreement Ernst Sachs acknowledged himself indebted to Magg in the sum of 660,000 marks. It amounted to a composition of all differences between the parties to that date, resulting in a valid contract according to the laws of the country where it was made. It is an enforceable German contract, entered into between these parties prior to the entrance of Germany into the World War. The contract is based upon a valid consideration, which, under the German law, could not be questioned. All questions of waiver or limitations, as affecting the consideration, were foreclosed by the written agreement. It is doubtful, therefore, if a mere common-law trustee, after these years, can be heard in a foreign jurisdiction to challenge the sufficiency of the consideration which brought these parties into a lawful agreement. — 978 — This brings us to the question of the bona fides of the'contract of February 22, 1917, by which Magg claims to have purchased from Wustenfeld the stock in question. On its face we have an executed contract, a sale in praesenti, containing language indicative of the intention of the parties: “Wustenfeld sells” and “Wustenfeld cedes at the same time explicitly his rights to the shares handed over by Messrs. Knauth, Nachod & Kuhne to Magg.” The express intent on the part of the vendor to part with his right, title, and interest in the stock is clearly indicated from the tenor of Wustenfeld’s assignment of the stock to Sachs, as follows: “I have sold to Mr. Joseph Magg of Zurich, Wiesenstrasse, on February 22d of this year, 850 shares at 100 dollars each of the Bearings Company of America.”, ^ The contract on its face is without condition, and this is supported by the testimony of Wustenfeld, Sachs, and Magg, the ones to whose testimony we must look to determine the bona fides of this transaction. Wustenfeld testified that there was not on February 22, 1917, or at any time since, any understanding, secret or otherwise, respecting the stock, either with Magg or Sachs, or any other person, other than shown by the written contract,-and that at no time since that date has he claimed any right, title, or interest in the stock. Magg testified that at no time did he make any agreements, other than that appearing in the contract, with either Wustenfeld or Sachs, or any other person, in regard to the stock in question; that he had no understanding or agreement, secret or otherwise, with any one in respect of said stock; and that, at all times since the making.of said contract, he has claimed and still claims to be the true and sole owner, in his own right, of the whole right, title, and interest in and to said stock. Sachs testified as follows: “Q. 57. Did you on February 22, 1917, or at any other time, make any agreement, either in writing or by word of mouth, other than the agreements and documents to which you have testified in this cause, with feither Joseph Magg or Georg Wustenfeld, or with any other person, with regard to any or all of the 850 shares of the Bearings Company of America here in suit? A. 57. No. “Q. 58. Do you today claim any right, title, or interest in or to any of the 850 shares of the capital stock of the Bearings Company of America here in suit? A. 58. No.” It may be here suggested that, if Sachs and Magg were in collusion to defeat future seizure by the Alien Property Custodian, it would seem that all the stock held by Sachs would have been turned over to Magg. It, however, appears that 50 shares of the Bearings Company stock, valued at from $8,000 to $10,000, belonging to Sachs, were seized by the Alien Property Custodian, and are now held by authority of the Trading with the Enemy Act. This of itself has strong bearing upon the bona fides, not only of the settlement of July 15, 1914, but also of the final contract with Wustenfeld, by which the stock in question was transferred to Magg. — 979 — Immediate steps were taken to transfer the stock on the books of the company from Wustenfeld to Mágg. While Magg, as the equitable owner of the stock, might have compelled its delivery and transfer on the books of the company (Ryan v. Martin [C. C.] 165 Fed. 765), Wustenfeld discharged his full obligation by notifying the Bearings Company of the sale of the stock to Magg. On February 27, 1917, Wustenfeld cabled the president of the Bearings Company as follows: “Have sold my 850 shares of your company to Joseph Magg, Zurich, Weisenstrasse 17,” Thus, so far as this record discloses, there was a complete executed contract for the sale of this stock, made at a period before the United States entered the war. It bears all the earmarks of a genuine business transaction, prompted by proper commercial motives, and of mutual advantage to the contracting parties. To impeach the contract the court must indulge in suspicion, not based upon, or even inferable from, any testimony in the case. In other words, we are asked to discredit the numerous witnesses who have testified to the bona fides of this transaction, without any evidence challenging the truth of their testimony. But it is urged that, inasmuch as the diplomatic relations between Germany and the United States had been terminated by the latter government prior to the date of the contract under which Magg claims title to the stock in question, the contract was made within enemy territory when war was imminent, and should be held to have been made for the purpose of avoiding capture. As was said in Stohr v. Wallace (D. C.) 269 Fed. 827, 841: “A serious argument might be made in favor of such a result, once a policy of land capture be inaugurated; but under this act [the Trading with the Enemy Act] it appears to me that section 7b [40 Stat. 416] effectively closes any such discussion. A part of the first paragraph of thát section reads as follows: , ‘No person shall by virtue of any assignment * * * to him of any * '* * chose in action by * * * an enemy * * * have • any right or remedy against the * * * obligor * * * unless said assignment 15 * * was made prior to the beginning of the war.’ It might, indeed, be open to a good deal of question whether this included an assignment of equitable interests in shares of stock (Brown v. Fletcher, 235 U. S. 589, 35 Sup. Ct. 154, 59 L. Ed. 374), though shares are analogous to choses in action (Jellenik v. Huron Copper Co., 177 U. S. 1, 20 Sup. Ct. 559, 44 L. Ed. 647), and a fortiori equitable interests in shares. But I think that the purpose of the statute is prettly clearly indicated, even if its letter do not cover this precise case. It can scarcely be supposed that an exception would be made in favor of ante bellum transfers of choses in action which did not apply to property so nearly akin as this, or indeed to all property, and it is clear that absolute transfers of choses in action before April 6, 1917, would be valid;” This case was affirmed in Stoehr v. Wallace, 255 U. S. 239, 41 Sup. Ct. 293, 65 L. Ed. 604. In the present case, not only the equitable but the legal title to the stock had passed to Magg before the actual declaration of war on April 4, 1917; hence the stock under the provisions of section 7b of the Trading with the Enemy Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 31l5%d), was not subject to seizure. — 980 — The decree is reversed, with costs, and the cause is remanded for further proceedings, not inconsistent with this opinion.