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Oppenheimer v. U.s. Carbon & Ribbon Mfg. Co.

SEPTEMBER 18, 1963.

ARTHUR M. OPPENHEIMER, PLAINTIFF AND COUNTERDEFENDANT, APPELLEE,

v.

U.S. CARBON & RIBBON MFG. CO., INC., A CORPORATION, AND CONSOLIDATED CURTIS-YOUNG CORPORATION, A CORPORATION, DEFENDANTS AND COUNTERPLAINTIFFS, APPELLANTS. CONSOLIDATED RIBBON & CARBON CO., FORMERLY AN ILLINOIS CORPORATION, COUNTERDEFENDANT, APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. WILBERT F. CROWLEY, Judge, presiding. Appeal dismissed. MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

Rehearing denied November 27, 1963.

This appeal is from an order entered by the trial court in an action which arose out of an alleged written contract for the sale of assets of the carbon paper and ribbon business of Consolidated Ribbon & Carbon Company (hereinafter referred to as "Old Consolidated"), formerly an Illinois corporation. The parties to the written agreement in question were Old Consolidated, Arthur M. Oppenheimer, Curtis-Young Corporation, U.S. Ribbon & Carbon Mfg. Co. (sued herein under the name U.S. Carbon & Ribbon Mfg. Co., Inc. and hereinafter referred to as "U.S. Carbon"), a Pennsylvania corporation, and Arthur W. Young.

The suit was brought by Oppenheimer against U.S. Carbon and against Consolidated Curtis-Young Corporation (hereinafter referred to as "New Consolidated"). It was in two counts. The first count was for salary and bonus allegedly due Oppenheimer from both defendants pursuant to employment provisions contained in the written agreement. The second count was for the recovery from the defendant New Consolidated of an amount allegedly due on a promissory note executed pursuant to an oral modification of the written agreement.

A four-count counterclaim was filed. The first count was filed on behalf of defendants, U.S. Carbon and New Consolidated, against plaintiff, Oppenheimer, for damages allegedly caused by plaintiff's incompetence, neglect and failure to devote a reasonable amount of time to the affairs of the defendants. The second count was by U.S. Carbon and New Consolidated against plaintiff for damages for failure to deliver certain equipment. The amended third count was by New Consolidated against Old Consolidated (which, prior to the filing of the third count of the counterclaim, was not a party to the suit), and was based on the alleged failure of Old Consolidated to turn over the entire backlog of unfilled orders pursuant to the terms of the written agreement. The fourth count, as amended, was brought by U.S. Carbon against Oppenheimer for damages allegedly caused by the fraudulent conduct of the plaintiff in failing to disclose, prior to the execution of the agreement, that the vendor was in grave danger of losing its major customer, Associated Stationers Supply Company, Inc., also known as Horder's.

The case was tried before a court and jury. At the close of all the evidence plaintiff made separate motions for directed verdicts on counts I and II of the complaint, which motions were sustained by the trial court. The trial court thereupon directed the jury to bring in a verdict on count I for Oppenheimer and against New Consolidated and U.S. Carbon assessing plaintiff's damages at $16,396.84. The court also directed the jury to bring in a verdict on count II of the complaint in favor of Oppenheimer and against the defendant New Consolidated assessing the plaintiff's damages at $7,000. In accordance verdicts were returned by the jury, properly signed, which verdicts appear in the record.

Separate motions were made by plaintiff at the close of all the evidence for a directed verdict in favor of the plaintiff and counterdefendant on counts I and II of the counterclaim, which motions were sustained by the trial court. Verdicts in accordance with the direction as to both counts were returned by the jury, properly signed, and appear in the record.

Count III of the counterclaim was submitted to the jury, and the jury returned a verdict in favor of the "Counter-Defendant, Consolidated Ribbon & Carbon Company, and against the Counter-Plaintiff, Consolidated Curtis-Young Corporation," which verdict, properly signed, appears in the record. Count IV of the counterclaim was also submitted to the jury, and the jury returned a verdict in favor of the counterplaintiff, U.S. Carbon, and against counterdefendant, Oppenheimer, and assessed damages in the sum of $9,100. This verdict, properly signed, also appears in the record.

Neither in the abstract nor in the record does it appear that any judgment was entered by the court on any of the verdicts.

Oppenheimer, as plaintiff and counterdefendant, thereupon in apt time filed a post-trial motion. He moved for judgment on count IV of the counterclaim notwithstanding the verdict, or arrest of judgment, or a new trial on said count IV of the counterclaim, and alleged certain procedural errors. The defendants to the original complaint, U.S. Carbon and New Consolidated, filed a post-trial motion, moving for judgment on count I of the complaint, arrest of judgment, or a new trial on said count, and alleged certain procedural errors. In the same motion New Consolidated moved for judgment on count II of the complaint notwithstanding the verdict, arrest of judgment, or a new trial as to said count, alleging certain procedural errors. Also in the same motion defendants and counterplaintiffs, U.S. Carbon and New Consolidated, moved the court for judgment on count I of the counterclaim notwithstanding the verdict, or for a new trial on count I of the counterclaim, and also set up procedural errors. As to count III of the counterclaim the post-trial motion reads as follows: "The Defendant and Counterplaintiff, Consolidated Ribbon & Carbon Company [sic], moves the court for: A. Judgment on Amended Count III of its counterclaim against the Counterdefendant, Consolidated Ribbon & Carbon Company, notwithstanding the verdict; or B. A new trial on Amended Count III of Defendant's counterclaim," and alleges that the verdict is against the manifest weight of the evidence.

The court on May 16, 1962 entered an order in part as follows:

"1. That the post trial motions of U.S. Carbon & Ribbon Mfg. Co., Inc. [U.S. Carbon] and Consolidated Curtis-Young Corporation [New Consolidated] be and they hereby are overruled, and that all relief sought by said motions be and they hereby are denied.

"2. That the motion of Arthur M. Oppenheimer for judgment notwithstanding the verdict of the jury on Amended Count IV of the Counterclaim be and it is hereby granted; that said verdict and the judgment entered thereon be and the same are hereby set aside and vacated; that judgment for said Arthur M. Oppenheimer on Amended Count IV of the Counterclaim be and it is hereby entered notwithstanding the verdict of the jury; that Counter Plaintiff take nothing by its claim on Amended Count IV of the Counterclaim."

The order also provided that Oppenheimer be allowed a conditional new trial on count IV of the counterclaim.

U.S. Carbon and New Consolidated filed a notice of appeal. It is not abstracted in full, but from the record it appears they are appealing from the order entered in the trial court overruling their post-trial motion and from the order allowing the motion of Oppenheimer for judgment notwithstanding the verdict on amended count IV of the counterclaim, from the further order of the court setting aside and vacating the verdict and judgment entered on count IV of the counterclaim, and also from the order of the court granting Oppenheimer a ...


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