supreme - washington and lee university

. ' ~ '

IN.THE

Supreme Court of Appeals of Virginia AT RICHMOND : I~ . .

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2 ~uprexpe Colg.t of .AJ>peals of Virgi~ia

ltECOJID • • •

'Filed! .. ~ Cinet_uit '®lurt Ql~rJr 's Ollice W:ay ~1 195'.9.

~~k1i!;f~If.u~~· JN~_,;,~~v~~;fi.T@JRY ~JU~G MrmNT.

Culmore Realty C01npany v. C. Louis Caputi 3

5. That the said notes provide that the defendant makers shall pay the said sums in installments, some installments being presently due and other installn1ents being due . in the future.

6. That demand has been made to the defendants to pay the said installments to the plaintiff, but no payments have been 1nade to the plaintiff, the plainti~_states upon information and belief that the defendant C. Louis" Caputi has received one-half

of two installm:ents due on the said notes. page 3 -~ .. 7. That the plainti:ff:.8lleges:upon: 1nfor.Jltil;tion and

belief that the defendant ,C. Louis C~puti has received full payment ,of all installments a]).d aver:$:· that the said de£endant is entitled to only one;palf of the .$tdd payments. · ·

WHEREFORE, tl,re plail)tiff pr~ys that the·defendan~-b-e·· enjoined from :payip.g any sums_ iJl ·excess• of one-:J:ralf gf any installment due to {!J: Louis Caputi:, '.or to. any .one for his use; that the plaintift be awardeq. ·a judgment -~ga~_§t the defendants, jointly '.(lnd sev.erallyj fo.r all,past~~due~ i~S:~Jlments with interest, an:d that the app:lr~pri:Q.te :oJ>det· be. ~~t~red directing that ozu~~half of all fubrr«' payiD.ents on the ~iiii~~ote.~ be niade to the plaintiff; and th~ P.litintifi fl:Jwth.~r pr,~~- ~lJ;t 1t 1na.y have its costs"in this 'behalf ~~ended. · ·

· CU~lMJtDRE REALITY ·0.0.~~-By otft®to:a:m ~EA£TYco·~ -------~o@sel~

~:r.~~~·~Q:URE & 10'2: _N.". Fa1rf~~- ;st~, ~~l~~andrfa, Va.

JAMES: M. TJ[~MS~~ Coll1lsel for Plaintal,i~,

~;p.a.ge 4 ~

'$3,51~i50:

E~Bll' A.

~e~~ndria, Va., D~cember.' ,6, 1956~

On or before J:lecemb.~r .31, ~96JJ, after d~te,_ w.e, ,jom~i .~p.(t sever,al' prot.ni~:e t~ . P.~!' 1tQ) _ lbh£\ order_ J!•f :Q~lm91\~:: .lt~~lty. Comp@y and ·0. Lo..m:tr:(ffa]>~ .~t ·fHJ.Y Bap~ Q;t· T.itJl.~t. 9,Q)!i:Ji8!P.Yi in th~ ·umteQ; S~t(;f~~- $Jre· .sum~ -o~ :mhirty~~¥~· .[$~~e.&. Wwei»:e· ).

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J~;~)fJl4!1!l~ 1!~i!J~n~;. ~~,~~~s,~ ~rse;J;i!: ,~, 111118

4 Supreme Court of Appeals of Virginia

severally waive the benefit of their hon1estead exemption as to this debt ; and also each and severally waive demand, protest, notice of presentment, notice of protest and notice of non-payment and dishonor hereof, and agree to pay attorney's fee of ten per cent in the event this note is placed in the bauds of an attorney for collection in event of default.

This note is payable as follows: In instalhnents of Two Hundred Fifty and 00/100 Dollars ($250.00) each on June 30, 1957 and December 30, 1957; in installments of Two Hundred Fifty and 00/100 Dollars ($250.00 plus interest each on June 30, 58, December 30, 1959, June. 30, 1959, December 30, 1959, June 30, 1960, December 30, 1960, June 30, 1961, December 30, 1961, June 30, 1962, December 30, 1962 and June 30, 1.963; and balance of Two Hundred Sixty-two and 50/100 Dollars ($262.50), plus interest becoming due and payable on December 31, 1963.

Makers reserve right to pay any part or all of principal hereof at any time prior to maturity.

Witness the following signatures and seals. BLANCH FRYE POST (Seal)

BLANCH FRYE POST ANNA FRYE IIEDGES GEORGE L. FRYE, JR., MARIE I. FRYE

Address R. F. D. #4 Box 329, Alex. 'Ta.

(Seal) {Seal) (Seal) (Seal)

IDENTIFICATION: This is to certifv that this is Note No. . . . . of . . . . note described in a· certain deed of trust of even date to . . . . . . . . . . . . . . . . . . Trustees on .............. . This note and deed of trust securing same were executed in my presence.

Notary Public.

NOTE: This exhibit was printed from a negative photostat that was not too clear.

page 5} EXIDBIT B.

$4,831.16 Alexandria, Va. :P,eG.emher 6th, .1956.

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Cuhnore Realty Company v. C. Louis Gaputi 5

On or before .June 80, 1!)63, after date, we, jointly and severally }HOini~e to pay 1 o the order of Culn1ore Healty C01npany and C. Louis ( ~aputi at any Bank or Trust Cmnpany in the United States the su1n of ~,orty-eight Hundred Thirtyone and 16/10 Dollars, for value received and without offset, with interest at four per cent per annum from January 1, 1958, payable semi-annually. The makers and endorsers each and severally waive the benefit of their homestead exemption as to this debt; and also each and severally waive demand, protest, notice of presentment, notice of protest and notice of nonpayment and dishonor hereof, and agree to pay attorney's fee of ten per cent in the event this note is placed in the hands of an attorney for collection in event of default.

This note is payable as follows : In installments of Three Hundred Seventy-five and 00;100 Dollars ($375.00) each on June 30, 1957 and December 30, 1957; in installments of Three Hundred Seventy-five and 00/100 Dollars ($375.00), plus interest each on June 30, 1957, December 30, 1958, June 30, 1959, December 30, 1959, June 30, 1960, December 30, 1960, tTune 30, 1961, December 30, 1961, June 30, 1962 and December 30, 1962; and balance of Three Hundred Thirty-one and 16/100 Dollars ($331.1.6), plus interest, becoming due and payable on ,J nne 30, 1963.

J\tiakers reserve right to pay any part or all of principal. hereof at any time prior to maturity.

Witness the following signatures and seals.

GEORGE L. FRYE BLANCHE I. FR-YE

(Seal) (Seal)

Address: R. F. D. #4, Box 329, Alex., Va.

IDENTIFICATION: This is to certify that this is Note No ......... of ........ note described in a certain deed of trust of even date to ............ Trustees on ........... . This note and deed of trust securing same were executed in n1y presence.

. .... --· ........... ~ ......... . Notary Public.

NOTE : This exhibit was printed :from a negative photostat that was not too clear.

6 Supren1e Court of Appeals of Virg-inia

:page 6} EXHIBIT C.

Alexandria, Virginia, December 6th, 1956.

Culmore Realty Company and C. Louis Caputi, Esquire, Falls Church, Virginia.

Gentlemen:

This letter is ·to be attached to and become part of our note payable to your order, in the amount of Thirty-five Hundred Twelve and 50/100 Dollars ($3512.50) and interest, as provided therein, said note being given for balance of commission due you in our sale to Arlington Construction Co., Inc., and bears date on December 6th, 1956, and is payable in semi-annual installments beginning June 30, 1957, and semi-annually thereafter, as provided in said note.

The purpose of this letter is to agree that, notwithstanding the terms of the note to the contrary, we will, in accordance with the terms of the contract of sale, curtail said note by an amount equivalent to ten ( 10) percent of the payments made from time to time on the principal of the purchase price trust notes taken. back by us in our said sale to Arlington Construction Co., Inc.

Very truly yours,

GEORGE L. FRYE, JR. BLANCH I. FRYE POST ANNA FRYE HEDGES MARIE I. FRYE

NOTE: This exhibit was printed from a negative photostat that was not too clear.

page 7 ~ EXHIBIT D.

Alexandria, Virginia, December 6th, 1956.

Culmore Realty Company and C. Louis Caputi, Esquire, Falls Church, Virginia.

Gentlemen:

This letter is to be attached to and b~come part,of our note payable to your order, in the amount. of Forty-eight Hundred

Culmore Realty Company v. C. Louis Caputi 7

Thirty-one and 16/100 Dollars ($4831.16) and interest, as provided therein, said note being given for balance of commission due you in our sale to Arlington Construction Co., Inc., and bears date on December 6th, 1956, and is payable in senti-annual installments beginning June 30, 1957, and semiannually thereafter, as provided in said note.

The purpose of this letter is to agree that, notwithstanding the terms of the note to the contrary, we will, in accordance with the terms of the contract of sale, curtail said note by an amount equivalent to ten (10) per cent of the payments made from time to time on the principal of the purchase price trust notes taken back by us in our said sale to Arlington Construction Co., Inc.

'T ery truly yours,

GEORGE L. FRYE BLANCHE I. FRYE

NOTE : This exhibit was printed from a negative photostat that was not too clear.

• • page 18 ~

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Filed Jun 2, 1959.

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THOMAS P. CHAPMAN, JR. Clerk of the Circuit Court of Fairfax County, Va.

ANSWER AND GROUNDS OF DEFENSE.

The defendant, C. Louis Caputi, answers the allegations of the motion for a declaratory judgment as follows:

1. This defendant denies that he is indebted jointly and severally, or otherwise in the sum of $4,173.33 to the plaintiff: said denial being on the basis that he had ·received no such sum to the credit of the plaintiff, or otherwise; and on the additional grounds hereinafter set out in the grounds of defense.

2. This defendant requires s~ricf proof of· the allegations contained in Paragraph 1, 6, and 7.

'3. The allegation contained in Paragraph 2 that the


defendant, C. Louis Caputi, was employed by the plaintiff as a real estate salesman in September, 1956, is denied. It is admitted, however, that C. Louis Caputi was employed as the manager of the commercial Property Sales Division, in which capacity he was to receive 50% of all commissions of sales made by him personally, or by any other salesman working for him in said department.

4. The allegation contained in Paragraph 3 that defendant, C. Louis Caputi, pursuant to the terms of an agreement as therein alleged, sold certain property to the other defendants is denied. However, it is admitted that the defendant so sold said property to the other defendants who agreed to pay commissions as alleged, and so paid $5,000.00 to the plaintiff, who paid over to this defendant $2,500.00 of same. Strict proof of the allegations contained in Paragraph 4 and 5 is required.

page 19 ~ GROUNDS OF DEFENSE.

This defendant, C. Louis Caputi, for his grounds of defense to the plrunbtt's mobon for a declaratory judg1nent comes and says that the defendant sold the subject property to the other defendants herein, prior to any connection with the plaintiff herein; that said sale was closed after the plaintiff herein had fraudulently and deceitfully induced this defendant to accept said employment with said plaintiff as sales manager of Commercial Property, for the sole purpose of procuring 50% benefit of commissions on sales previously negotiated, but thereafter closed, after this defendant had accepted such employment with the plaintiff; that the defendant believed and relied on the terms of employment as sales manage of Commercial Property, and directed that the commission notes described in Paragraphs 3 and 4 of plaintiff's motion for a declaratory judgment be made payable jointly to the defendant and the said plaintiff; that after it became apparent that the plaintiff did not intend to meet its obligations under the terms of said employment in any respect, except in which it would be benefitted, this defendant requested the plaintiff in equity and justice to endorse said notes over to him, which said plaintiff has and does refuse to do.

C. LOUIS CAPUTI By Counsel.

JOHN G. EPAMINONDA ALEX MONCURE BLOXTON

Oounsel for Defendant, C. Louis Caputi•·

t


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page 20 ~

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Filed J un 2, 1959.

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THOMAS P. CHAPMAN, JR. Clerk of the Circuit Court of

Fairfax County, Va.

A CROSS AND COUNTER CLAIM.

1. This defendant, C. Louis Caputi, comes and says that in addition to other defense filed hereto, he is in equity entitled to recover judgment and other relief against said plaintiff and other defendants; and he, the said defendant, for cross and counter claim against said plaintiff and other defendants, as is his right, pursuant to law and equity, complains of the said plaintiff and other defendants, as follows, to-wit:

2. That the plaintiff unlawfully brought his said action to recover a judgment for $4,173.33 and a declaration of right of said plaintiff to receive one-half of all future payments on said notes in said motion for a declaratory judgment described, as against this defendant, in equity and good conscience; and this defendant complains of the plaintiff and other defendants of this. his cross and counter claim for that on or about August 7, 1956, the plaintiff, by his agent, servant, and employee, Dr. Katzen, while acting within the scope of his active or apparent authority as sueh agent, falsely and fraudulently, and with intent to deceive and defraud this defendant, represented to this defendant, that he was being employed as sales manager of and for the Culmore Realty Company in charge of commercial, development, and investment property sales, and

that in consideration of this defendant's services page 21 ~ in that connection he would receive one-half of all

commissions resulting from the sale of all commercial, development and investment lands, irrespective of whether he or salesmen working under him made said sale; and he would nave a drawing account of actual expenses until the first sale, and thereafter a drawing account of $200.00 per week.

3. That at the time the plaintiff made said fraudulent and deceitful offer to this defe~dant, the plaintiff knew that this defendant, as a private real estate broker, had sold numerous imae.ts of land .and ·was at the, time engaged in the process of

10 : · Supreme Court of Appeals of Virginia

closing several other large transactions, which would produce large commissions; that said offer of employment was made for the purpose of inducing this defendant to turn said sales over to the credit of the Culmore Realty Company by closing same after acceptance ··of the offer of employment as sales manager, thereby causing one-half of said commissions to accrue to the credit of the plaintiff. Furthermore said plaintiff had no intention of complying with the terms of said offer of employment by paying over to this defendant one-half of all the· commissions arising out of the sale of said commercial and development properties, as aforesaid, nor even to turn over to this defendant all such sales for closing; nor to allow this defendant a drawing. account of $200.00 per week or in any amount.

4. However, this defendant believed and relied upon the representations of employment so fraudulently and deceitfully made by the plaintiff, and was induced thereby to accept formally said offer of employment on or about August 7, 1956, and thereafter turned over to the credit of the Culmore Realty Company all business and sale prospects of his own for closing; that one of such sales so closed to the credit of plaintiff resulted in a commission of $13,343.66, of which $5,000.00 was paid down and the balanc.e secured by two promissory notes in the total amount of $8,343.66, payable

jointly to the plaintiff and this defendant; that pag·e 22 ~ plaintiff's action against this defendant is for the

purpose of securing the benefit of one-half of payments on said notes which have been paid or accrued to date, which said plaintiff so fraudulently induced this defendant to have issued payable jointly to said plaintiff and this defendant.

5. Thereafter this defendant having made repeated efforts to· exercise his rights to a drawing account, pursuant to the t.erms of alleged employment, and having discovered that the plaintiff by certain corporate officers had attempted on several occasions to handle the sale of said commercial, development and investment properties, exclusive of th~s defendant's right to 'do so, and thereby defeat by fraud, this defendant's claim of commissions arising out of said sales ; thereupon this defendant did on January 1, 1957, after having apprised said plaintiff, as to the reasons therefor, did leave the alleged employment of said plaintiff, and did demand of said plaintiff that he endorse over the two said promissory notes to his, this defendant's, credit, which said plaintiff has failed and refused to do to date, and now bring their suit thereon.

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Cuhnore Realty C01npany v. C. Lo_uis Caputi 11

6. That by reason of the pren1ises aforesaid, this defendant has been damaged to a considerable deg·ree, i. e. loss of onehalf of the cash paid down on said commission of $5,000.00, or the sum of $2,500.00; one-half of the paytnents made to date on the note securing the balance of said commission in the amount of $4,173.33, all of which the defendant was by fraud induced to turn over to the credit of the plaintiff.

"7herefore this defendant as for his cross and counter

clailn asks judg1nent against the plaintiff for $2,500.00, and judgment against said plaintiff and other defendants for $4,173.33 jointly and severally; that the Court reform said two promissory notes by striking out the name of the plaintiff as a joint payee with this defendant, and that this Court direct pursuant to reformation of said notes, that all future payments on sante be made to this defendant as in equity and justice

would be right; and that plaintiff's motion for a pag·e 23 ~ declaratory judgment at law be transferred to the

equity side of this Court in order that complete equity and justice may be done, in respect to this defendant's equitable ri,g-hts to have said notes reformed by striking out the plaintiff's name as joint payee with this defendant therein, on the grounds of fraud in the procurement of said status as payee, and that this defendant's right to recover such sums of money as have already been paid to the plaintiff on account of cash paid on said commission; and the plaintiff's right in respect to this defendant to recover the other _half of payments made on said notes be adjudicated and established in this cause.


JOHN G. EP AMINONDA ALEX l\tiONCURE BLOXTON

100 N. vVashington Street Falls Church, Virginia Attorneys for Defendant, C. Louis Caputi.

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·page 24 ~

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MOTION TO AMEND SUIT FOR DECLARATORY JUDGMENT.

Now comes the plaintiff and moves the Court to amend the motion for a declaratory judgment to substitute George L. Frye, Jr., Executor of the Estate of George L. Frye, deceased, in the style of and in the body of the motion for judgment wherever the nan1e George L. Frye appears.

CULMORE REALTY CO. By CULMORE REALTY CO.

Counsel.

CLARI{E, RICHARD, MONCURE & WHITEHEAD

102 N. Fairfax St., Alexandria, Va. By JAMES M. THOMSON

Counsel for Plaintiff.

Filed .Jun 12, 1959.

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page 25 ~

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Filed J un 12, 1959.

THOMAS P. CHAPMAN, JR. Clerk of the Circuit Court of Fairfax County, Va .

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GROUNDS OF DEFENSE TO CROSS-CLAIM.

Now comes the plaintiff and for its answer to the defendant's cross-claim states as follows:

1. That the plaintiff denies the allegations of Paragraph 1 of the cross-claim and demands strict proof.

2. That the plaintiff denies the allegations of· Paragraph 2 of the cross-claim and demands strict proof.

Cuhnore Realty Company v. C. Louis Gaputi 13

8. That the plaintiff denies the allegations of Paragraph 3 of the cross-claim and demands strict proof.

4. That the plaintiff denies the alleg~tions of Paragraph 4 of the cross-claim, excepting only that it admits that one of the sales procured by the defendant, with the help of the plnintiff, resulted in a commission of $13,343.66, of which $5,000.00 was paid down and the balance secured by two prmnissory notes in the total amount of $8,343.66, payable Jointly to the plaintiff and the defendant; the plaintiff further admits that its suit is to secure the payn1ent of one-half of the balance due on the two said promissory notes.

5. The plaintiff denies the allegations of Paragraph 5 of the cross-claim, exeepting only that it admits that the defendant did on or about the 31st day of January, 1957, leave the employment of the plaintiff.

6. That the plaintiff denies the allegations of Paragraph 6 of the eross-claim and demands strict proof.

page 26 ~ WHEREFORE, the plaintiff demands that the defendants' cross-clain1 be dismissed, with its costs

in this behalf expended.

CULM ORE REALTY CO~IP ANY Bv CULMORE REALTY CO.

· Counsel.

CLARKE, RICIIARD, M:ONCURE & 'VHITEHEAD

102 N. Fairfax St., Alexandria, Va. By JAMES M. THOMSON


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page 27 ~

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ORDER A:J\tiENDING SUIT FOR DECLARATORY JUDGMENT.

This day came the plaintiff by counsel, and also came the defendant C. Louis Caputi by counsel, upon the pla~ntiff 's motion to amend the motion for judgment to ·substitute a party defendant for one of the named defendants.

And it appearing to the Court that one of the named defendants, George L. Frye, is now deceased and George L.

14 Supreme Court of Appeals. of Virginia

Frye, Jr., has been appointed Executor of his said estate in the Circuit Court of Fairfax County;

It is, therefore, ADJUDGED, ORDERED and DECREED that George L. Frye, Jr., Executor of the Estate of George L. Frye, deceased, be inserted instead and in lieu of George L. Frye in the style of this cause and in the body of the motion for judgment.

June 16th 1959.

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page 28 ~

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PAUL E. BRO,VN, Judge .

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THO~IAS P. CHAPlVIAN, JR. Clerk of the Circuit Court of Fairfax County, Va.

A~IENDED ~lOTION FOR DECLARATORY JUDG~:IENT.

page 29 ~ To: The Honorable Judges of the Circuit Court of Fairfax County, Virginia :

The undersigned moves the Court for a declaratory judgn1ent against the defendants, jointly and severally, in the sum of $4,173.33 and to declare that the plaintiff is entitled to the payment of s~id sum pursuant to the following allegations, together with interest and their costs in this behalf expended:

1. That the plaintiff is a Maryland corporation engaged in and conducting a real estate business in the Commonwealth of Virginia.

2. That the plaintiff employed the defendant, C. Louis Caputi, as a real estate salesman in the month of September, 1956, and agreed with the said defendant that he would receive 50 per cent of all commissions on sales made by him while working for the plaintiff.

3. That the defendant, C. Louis Caputi, pursuant to the terms of the agreement sold certain property, and the defendants, George L. Frye, Blanche I. Frye, Blanch Frye Post, Anna Frye Hedges, George L. Frye, Jr., and Marie


I. Frye agreed to pay a commission of $13,346.66 on the said sale; $5,000.00 in cash was paid to the plaintiff and the plaintiff paid $2,500.00 of the said $5,000.00 to the defendant, C. Louis Caputi.

4. The balance of the commission was represented by two negotiable promissory notes, both dated December 6, 1956, in the principal amounts of $3,512.50 and $4,831.16, payable jointly to Culmore Realty Company and C. Louis Caputi, copies of which are attached hereto and incorporated herein as if set forth in haec verba, marked Exhibits A and B, respectively; that the makers of the notes attached letters to the said notes, a.nd copies of the said letters are attached hereto marked Exhibits C and D, respectively.

5. That the said notes provide that the defendant makers shall pay the said sums in installments, some installments being presently due and other installments being due in the future.

6. That demand has been ma~e to the defendants to pay the said installments to the plaintiff, but no payments have been made to the plaintiff; the plaintiff states upon information and belief that the defendant C. Louis Caputi has received

one-half of two installments due on the said notes. page 30 } 7. That the plaintiff alleges upon information

and belief that the defendant C. Louis Caputi has received full payment of all installments and avers that the said defendant is entitled to only one-half of the said payments.

WHEREFORE, the plaintiff prays that the defendants be enjoined from paying any sums in excess of one-half of any installment due to C. Louis Caputi, or to any one for his use; that the plaintiff be awarded a judgment against the defendants, jointly and severally, for all past due installments with interest, and that the appropriate order be entered directing that one-half of all future payments on the said notes be made to the plaintiff; and the plaintiff further prays that it may have its costs. in this behalf expended.

CULM ORE REALTY C01.fP ANY CULM ORE REALTY COMPANY

By Counsel.

CLARKE, RICHARD, MONCURE & WHITEHEAD

102 N. Fairfax St., Alexandria, Va. By JAMES M. THOMSON .



• • • • • page 32 ~

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ANSWER AND GROUNDS OF DEFENSE TO THE AMENDED MOTION FOR DECLARATORY

JUDGMENT.

The defendant, C. LOUIS CAPUTI, by counsel, for his answer and grounds of defense to the plaintiff's amended motion for declaratory judgment adopts· haec verba the allegations contained in his answer and grounds of defense previously filed herein in response to plaintiff's original motion for declaratory judgment as and for his answer and grounds of defense to plaintiff's amended motion for

· judgment.


JOHN G. EP AMINONDA ALEX MONCURE BLOXTON

100 N. Washington Street Falls Church, Virginia Attorneys for defendant, C. Louis Caputi.

Filed Jun 30, 1959.

• • page 35 ~

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CROSS AND COUNTER CLAIM TO PLAINTIFF'S AMENDED MOTION FOR DECLARATORY

JUDGMENT.

The defendant, C. LOUIS CAPUTI, by counsel, for his cross and counter claim to the plaintiff's amended motion for declaratoey judgment adopts the allegations haec verba . ;

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Culmore Realty Company v. C. Louis C.aputi 17

contained in the cross and counter claim originally filed herein as his cross and counter claim to the plaintiff's amended motion for declaratory judgment.

C. LOUIS CAPUTI By counsel.

JOHN G. EP AMINONDA ALEX MONCURE BLOXTON

100 N. Washington Street Falls Church, Virginia Attorneys for defendant, C. Louis Caputi.


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page 41 ~

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A~iENDED ANSWER TO CROSS AND COUNTER CLAIM.

The plaintiff, Culmore Realty Company, by counsel, adopts the answer heretofore filed herein in haev· verba as its amended answer.

CULMORE REALTY COMPANY By CUL}IORE REALTY CO.

Counsel.

CLARKE, RICHARD, MONCURE & "\VHITEHEAD

102 N. Fairfax St., Alexandria, V a. By JAMES M. THOMSON


Filed Jul 24, 1959.



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page 42 r • • • • •

ORDER.

This day came the plaintiff, by counsel, and also came the defendant, C. Louis Caputi, by counsel, upon the motion of the defendant, C. Louis Caputi, to withdraw the Plea in Abatement filed by the said defendant, and upon the further motion of the plaintiff to an1end the motion for declaratory judgment;

And it appearing to the Court that all parties hereto have consented to the said motions;

It is, therefore, ADJUDGED and ORDERED that the Plea in Abatement filed by the defendant, C. Louis Caputi, be, and the same is hereby dismissed.

It is further ORDERED that the plaintiff, Culmore Realty Company, be permitted to amend the said n1otion for judgment, and the same is hereby amended by inserting the following paragraph :

'' 8. That an actual controversy exists between the plaintiff and the defendants, and that the cause of action arose in Fairfax County, Virginia, where each of the said defendants resides.''

September 17, 1959.

PAUL E. BROWN, Judge .

•

page 45 r • • • • •

PRE-TRIAL ORDER.

This day came the plaintiff by counsel and also came .Alex 1\L Bloxton, counsel for the defendant, C. Louis Caputi, upon the said defendant's motion to transfer the above styled cause to the equity side of the court and was argued by counsel ;

And it appearing to- the Court that the parties hereto have· consented to this pre-trial order and agree:

I I

Culmore Realty Con1pany v. C. Louis Caputi 19

1. That the above styled cause shall remain on the law side of the docket;

2. That the equitable counter-claim shall be permitted and tried at the same time as the plaintiff's leg·al claim;

3. The defendant shall be entitled to introduce before the jury any eviaence in support of his counter-claim and answer; and for that, if the jury responds with a verdict in favor of the plaintiff that this the said verdict shall be dispositive of the counter-claim;

4. If the jury return a verdict in favor of the defendant, C. Louis Caputi, that the chancelor nwy enter whatever verdict he deems proper and enter judgment thereon;

It is, therefore, ADJUDGED AND ORDERED that this case remain on the law side of the docket and it is hereby set down for trial at 10:00 A.M. on the 1st day of November, 1960, subject to the conditions hereinabove set forth.

And this cause is continued.

ARTHUR vV. SINCLAIR, Judge.

}~ntered: ,July 29, 1960.

• • • • •

page 60 ~ INSTRUCTION NO. B.

The Court instructs the jury that the two notes given by the Fryes to Culmore Realty Company and C. Louis Caputi in the an1ounts of $4,831.16 and $3,512.50 are valid and binding obligations; that Culmore Realty Company and C. Louis Caputi are joint payees of the said notes and the jury should find for the Plaintiff, Culmore Realty for its one-half of the proceeds of the said notes unless the Defendant, C. Louis Caputi, shows by clear and preponderating evidence that C. Louis Caputi was fraudulently induced to cause the said notes to be made payable to Culmore Realty Company and C. Louis Caputi. ·.·

P. E. B .

• • • • •

page 68}

• • • • •

; ~.


.MOTION TO SET ASIDE THE VERDICT AS CONTRARY TO THE LAW IN EVIDENCE AND ENTER A FINAL JUDGMENT IN ACCORDANCE ""\VITH SECTION 8-352.

NOW COMES the plaintiff and moves the Court to set aside the verdict of the jury which found for the defendant on the issue joined as the verdict is contrary to the law in evidence and to enter final judgment for the plaintiff in the amount of $4,173.33 in accordance with Section 8-352 of the Code of Virginia as amended.

Filed Nov. 4, 1960.

page 72 ~

•


MOTION TO STRII\::E DEFENDANT'S EVIDENCE.

Now comes the Plaintiff and moves the Court to strike the evidence of the Defendant, C. Louis Caputi, on the grounds that the Defendant failed to prove fraud on the part of the Plaintiff and the said defendant failed to prove any defense to the Pfaintiff 's claim.

The said motion is submitted in support of the oral motion made by counsel for the Plaintiff at the conclusion of the Defendant's evidence and which the Court reserved its opinion.

CULM ORE REALTY COMPANY By CULMORE REALTY CO.

CLARKE, RICHARD, MONCURE & WHITEHEAD

By JAMES M. THOMSON 102 No. Fairfax St. Alexandria, Virginia Counsel for Plaintiff.

Filed Nov. 4, 1960.

'. 1.-:

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page 73}

• •

THOMAS~ CHAPMA~J& Clerk of the Circuit Court of Fairfax County, Va .

• •

JUDGMENT FOR THE DEFENDANT UPON THE VERDICT, AFTER THE MOTION OF THE PLAIN

TIFF TO SET SAME ASIDE AS OVERRULED.

On November 1st, 1960 came the plaintiff, Culm ore Realty Company, in person and by counsel, and likewise came the defendant, C. Louis Caputi, in person and by counsel; and C. Louis Caputi, one of the defendants in said cause, having filed his cross and counter claim to the plaintiff's motion for a declaratory judgment, alleging fraud in the procurement of the plaintiff as joint payee on the alleged promissory notes sued on by said plaintiff in his said declaratory judgment suit;

Then came again the defendant and filed his motion to transfer the plaintiff's motion for declaratory judgment to the chancery side of the court in order that same could be tried with defendant's equitable cross and counter claim. Thereupon counsel for both the plaintiff and defendant agreed and stipulated a.t pretrial of said cause, that plaintiff's~motion for declaratory judgment would remain on the law side of said court; that the equitable counter claim shall be permitted and tried at the same time as the plaintiff's legal claim; that the defendant shall be entitled to introduce before the jury any evidence in support of his~ counter . claim; and that if the jury responds with a-verdict in favor of the plaintiff that this, the said verdict,· shall be dispositive of the counter claim; that if the jurY: returns a verdict in favor of the defendant, C. Louis Caputi, the chancellor may enter whatever verdict

he deems proper, and enter judgment thereon. pag·e 7 4 } Thereupon came the jury of seven, who, upon

examination~ being found duly qualified, 'vere selected, tried and sworn according to law; and the jurors aforesaid, having fully heard the evidence and argument by counsel, and having received the instructions of the court, retired to their room to consider their verdict, and after some time they returned into the court with the following verdict, to-wit: "We, the jury, find for the defendant .. "


That prior to the time the jury was instructed by the court, counsel for the plaintiff moved to strike the defendant's evidence on the ground that the defendant, C. Louis Caputi, failed to_ prove fraud and the court denied said motion, to which action of the court counsel for the Plaintiff duly xcepted.

That counsel for the plaintiff and the defendant, C. Louis Caputi stipulated that the issues should be submitted to the jury on behalf of the plaintiff for the fixed sum of $4,171.83 with the understanding that if a recovery were had by the plaintiff that the judgment would· be for one-half of the proceeds of the notes; and on behalf of the defendant, C. Louis Caputi, by simply providing that the jury should find for the defendant, but with the understanding that the plaintiff would be entitled to recover $200.00, this being the difference between the $2,700.00 paid to the defendant, C. Louis Caputi, between the $2,500.00 then due him and the $2,700.00 actually advanced.

Thereupon the said plaintiff, by counsel, 1noved the court to s.et aside the aforesaid verdict of the jury and enter judgment for the plaintiff on the grounds that said verdict was contrary to the law and evidence and that the Court erred in denying the plaintiff's motion to strike the evidence of the Defendant.

But the court overruled said motion to set aside the verdict and enter judgment for the plaintiff, upon each and every ground offered in support thereof; to which action and ruling of the court the plaintiff, by counsel, excepted.

Upon overruling the motion of the plaintiff to set aside the verdict in favor of the defendant, the court doth refer said verdict to the chancellor to enter whatever verdict he deems proper, and enter judgment thereon, pursuant to stipulation of counsel for both plaintiff a.nd defendant entered at the

pretrial of this cause. page 75 ~ Upon consideration of which the chancellor being

of the opinion that it would not be equitable to permit the defendant to recover from the plaintiff the other one-half of the cash commission paid to said plaintiff in the amount of $2,500.00, doth adjudge, order and decree that the defendant recover nothing on account of his counter claim in that respect;

And it appearing that all parties agree that C. Louis Caputi is entitled to one half of t~e proceeds of the notes and that the jury returned a verdict in favor of the defendant in regard to the other one-half of the proceeds, the Chancellor deems it proper that he sustain the verdict and enter judgment thereon; wherefore, the Court doth adjudge and· order that the

Cuhnore Realty Company v. C. Louis Caputi 23;

defendant have judgment for the contested one-half of the proceeds of the notes; and it is further adjudged and ordered that the name of the plaintiff as joint payee be and the same hereby is ordered sriken out .of said notes. as such payee.

And it is further ordered that Robert I. Lainof, as counsel for the makers of said notes,. and joint defendants, do continue to hold in escrow all funds collected on said notes, pending such time allowed by law for the plaintiff to secure, or be refused, a writ of error on appeal in this case; and if an appeal is granted thereafter, until such appeal is disposed of. If the plaintiff is refused a writ of error, or if upon the granting of such writ this judgn1ent be affirmed, the said Robert I. Laino£ is to pay to John G. Epaminonda, counsel for the defendant, all funds now held by him in payment of the notes, and direct his clients to make all further payments to John G. Epaminonda, counsel for the defendant.

And it is further adjudged that John G. Epaminonda shall retain the said notes in his possession, subject to the further order of the Court; and it is further ordered that that portion of this decree which directs the reformation of the notes be stayed pending such time allowed by law for the plaintiff to secure or be refused a writ of error on appeal in this case; and if an appeal is granted thereafter until such appeal is .disposed of. · Before making application for a writ of error the Plaintiff shall post bond in this Court in the penalty of $500.00 with surety approved by the Clerk.

Entered: December 2nd, 1960.

page 76 ~ I asked for this:

JOHN G. EP AMINONDA 100 N. Washington Street Falls Church, Virginia Counsel for Defendant.

Seen and objected to :

PAUL E. BROWN, Judge.

CLARI(E, EICHARD, MONCURE & \VHITEHEAD

102 No. Fairfax Street Aleam.adria, Virginia

By JAMES M. THOMSON.

· 24 Supreme Court of Appeals of Virginia

• • • • • page 77 ~

• • • • •

NOTICE OF APPEAL AND ASSIGNMENT OF ERROR.

To: The Clerk of the Circuit Court of Fairfax County.

Counsel for Culmore Realty Company, the Plaintiff in the above styled case in the Circuit Court of Fairfax County, Virginia, hereby gives notice of appeal from the order entered in this case on the 2nd day of December, 1960, and sets forth the following assignments of error:

(1) That the Court erred in denying and overruling the Plaintiff's motion to strike the Defendant's evidence on the ground that the Defendant had failed to prove fraud.

(2) That the Court erred in denying and overruling the Plaintiff's motion to set aside the verdict for the Defendant and enter final judgment for the Plaintiff as the verdict was contrary to the law and the evidence.

And Counsel for the Plaintiff files herewith the bond required by the Court's order of the 2nd day of December. 1960.

JA~IES M. THOMSON Counsel for Culmore Realty Co.

Filed Dec. 9, 1960.

THOMAS P. CHAPMAN, .JR. Clerk of the Circuit Court of Fairfax County, Va .

• • • • • page 79 ~

• • • • •

APPEAL AND SUSPENSION BOND.

Know All Men By These Presents that we, Cuh:nore Realty Company, Principal, and National Surety Corporation, Surety,

!

I I I

Culm ore Realty Company v. C. Louis Caputi 25

are firmly bound unto the Commonwealth of Virginia in the sum of Five Hundred ($500.00) Dollars, to the payment whereof, well and truly to be made to the said Commonwealth of Virginia, we bind ourselves and each of us, our and each of our heirs, executors, administrators and successors, jointly and severally, firmly by these presents. We hereby waive the benefit of our exemptions as to this obligation.

Witness the following seals and signatures, and in witness whereof the Surety Corporation has caused these presents to be signed in its name and on its behalf, and its corporate seal to be hereto affixed, by Frank vV. Clarke, its attorney-infact, this 8 day of December, 1960.

The condition of the above obligation is such that, "\Vhereas, the Circuit Court of Fairfax County, Virginia,

entered a judgment on the 2nd day of December, 1960, for the defendant resulting from a trial on the merits held on the 1st day of November, 1960 in the suit styled Culm ore Realty Company v. C. Louis Caputi, et al., Defendants, At Law No. 8394 there pending in the said Circuit Court; and

Whereas, on the 2nd day of December, 1960, the said Court, in order to allow the said Culmore Realty Company, Plaintiff in said action, to apply for a writ of error and supersedeas from said judgment, made a provision in its order at the

instance of the Plaintiff suspending the execution page 80 ~ of the said judgment as therein provided upon the

. said Culmore Realty Company or some one for it, giving bond approved by the Clerk of said Court in the penalty of Five Hundred ($500.00) Dollars, conditioned according to law.; and

"\Vhereas, it is the intention of the said Culmore Realty Company, Plaintiff to present a petition for a writ of error and supersedeas from said judgment: ·

Now, therefore, if the said Culm ore Realty Company shall pay all such costs and damages as may accrue to any person by reason of said suspension in case a writ of error and supersedeas to the said judgment be not petitioned for within the time allowed by law, or if so petitioned for, shall not be allowed and be effectual, and shall perform and satisfy tl1e said order and judgment in the case the same be affirmed or the said writ of error and supersedeas be dismissed, and shall also pay all costs, damages and fees which may be awarded against or incurred by the said Defendants in the Appellate ... Court and all actual damages incurred in


0. Louis Caputi.

consequence of the supersedeas then this obligation to be void, otherwise to remain in full force and virtue.

page 84}

Filed Jan. 31, 1961.

CULM ORE REALTY COMPANY By HARRY L. COHEN (Seal)

NATIONAL SURETY CORPORATION

By F. W. CLARKE Attorney in Fact .

•

• • •

(Seal)

THOMAS P. CHAPMAN, JR. Clerk of the Circuit· Court of Fairfax County, Va.

SUMMARY OF AGREED TESTII\IONY.

C. LOUIS CAPUTI, After all witnesses were sworn, Caputi was put on as an

adverse witness by the plaintiff and testified as follows:

That prior to his employment with plaintiff, about August 7, 1956, he had certain meetings with Katzen, Secretary of Plaintiff corporation, where his employment by Culmore Realty was discussed. That he was employed as the sales manager of the land sales department on or about September 5, 1956, after meetings with Sam Barit.z, President of the Plaintiff and Dr. J{atzen, Secretary of the corporation. That Culmore Realty agreed to give him a drawing account of $125.00 per week until his :first sale and $200.00 per week thereafter. That he was to receive 50% of all commissions on land sales that he sold and a percentage of any other commission resulting on a land sale by another salesman. That Culmore Realty ag·reed to reduce its agreement with him to writing. That these promises served as an inducement. for him to join Culmore.

I I '

-Cuhnore Realty Company v. C. Louis Caputi 27

C. Louis Caputi.

He further testified that he had contacted the Frye family in regard to the property which he ultimately sold to ~:lr. Fickelstein, prior to going with Culmore Realty and that four or five contracts were drawn before the final contract was signed on October 29, 1956. The contract provided that the cmnmission was to be paid to Caputi and Culmore Realty Co., jointly. 'Vhen the contract was signed he had the commission check for $5,000.00 made payable to Culmore Realty and Caputi jointly and that he endorsed this check and gave it to

Culmore Realty where he supposed it was deposited page 85 ~ in Culm ore's a c c o u n t; Caputi handled the

settlement of the contract with a Mr. Richard L. Ruffner. of Davis-Ruffner Title Corp. and the notes representing the balances of the commission were made payable to Culmore Realty Company and C. Louis Caputi jointly; these notes we1·e both dated December 6, 1956, one in the amount of $4,831.16 and the other in the amount of $3,512.50; and each bore interest at 4%; both notes were identified and introduced into evidence; he further testified that he took the notes to Culm ore and placed them in the file at Culmore Realty.

That, after having placed the notes in the file, Caputi learned at least of two instances in which other members of plaintiff firm, including the President, Sam Baritz, had attempted to sell commercial and land development properties exclusive of and unbeknown to Caputi's department and interest; that upon learning of these instances Caputi went to Baritz and told him that since Culmore had refused to reduce the employment agreement to writing and that he, Caputi, had further learned there had been two attempts to sell commercial and land development property exclusive of him and his department, he felt the arrangement should be terminated and requested Baritz to endorse the Frye notes to him. Thereupon, Ba.ritz said he would have to talk the matter over with Katzen. N otbing- further having been done, about the end of .January or the first nart of February, 1957, Caputi asked one of the secretaries for the Frye notes and bad them photostated and took the photostatic copies of the notes back to Culmore and held the original notes.

He furthm· testified that he, Caputi, received checks totaling $2, 700.00, the first check was dated September 29, 1956~ for $200.00 and marked ''loan"; the second check was dated October 29, 1956, for $1,000.00 and bore no markings: the third check was dated November 7, 1956 for $300.00 and bad no

28 Supreme Court of A ppcals of Virginia

C. Louis Caputi.

markings; the fourth check was dated November 19, 1956 for $250.00 and had no markings and the fifth check was dated December 4, 1956 for $750.00 and it bore marking ''balance of Fickelstein deposit commission-in full on deposit of $5,000.00''; the sixth and last check dated January 8, 1957 was

for $200.00 and bore the notation ''Draw on Comm. '' Caputi testified that he never drew

page 86 ~ regularly on the account but asked for the draw when he needed money.

That the last check dated January 8, 1957, bearing the n1arking ''Draw on Comm. '' was the only true draw on commission as per agreement that Caputi had received, and that all of the other checks were advances constituting payment to him by plaintiff of his one-half of the $5,000.00 deposit on the Frye sale, and his total of $2,500.00; that thereafter alt.hough he asked for further draws of $200.00 per 'veek, plaintiff would not give it to him except for the January 8, 1957 check. Everytime Caputi would ask for a draw, plaintiff would refuse to give it.

He testified that he never lost 5 cents by reason of his employment with Culmore; however, he explained tha.t he lost the possibility of sales by reason of the fact that Culmore didn't let him handle three different sales ·of commercial and land development properties when the properties came into the office and Culmore attempted to handle them exclusive of him and his department; that he felt confident that had he been permitted to handle them, he c.ould have sold the properties.

Caputi testified that his agreement with Culmore could be terminated by Culmore without notice and that he was free to terminate the agreement at any time without notice.

That the Frye sale which Caputi was negotiating prior to the employment was the only sale made by him while with Culm ore.

:Mr. Caputi was then examined by his own counsel. That prior to his employment with the plaintiff, about

August 7, 1956, he had a certain meeting with Katzen, secretary of the plaintiff corporation. That Katzen congratulated him .on a recent sale Caputi had made involving a large tract of land at a large ·sales price; and by that means led to further conversation in which Katzen stated to Caputi that he, Caputi, should join Culmore and accept employment as manager of the development of land sales division of

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Culm'Ore Realty Company v. C. Louis Caputi 29

C. Louis Caputi.

Culmore wherein he, Caputi, would have the security of a drawing account against commissions earned in the future; that although Caputi sales involved large commissions because

of their size, he should have an income between page 87 ~ these sales for his security; Katzen then suggested

that Caputi meet with him and Sam Baritz, then President of Culmore Realty Company for the purposes of further discussion.

At the time Katzen had this discussion, he knew Caputi was then working on several deals f.or the sale of commercial property and large tracts of land other than the Frye tract which Caputi advised I{atzen that Caputi would soon be able to close. Prior to August, 7, 1956, Baritz called Caputi and made an appointment to meet with him, Baritz and Katzen; that on August 7, 1956, Caputi met Baritz and Katzen and discussed the terms of employment and Culmore Realty agreed to give Caputi a drawing account of $125.00 a week until the first sale and, thereafter, $200.00 a week thereafter; that Caputi was to be the manager of the commercial and development land deparhnent of the plaintiff and that Caputi was to handle all such lands which came to the plaintiff; that Caputi was to receive 50% of all commissions of commercial and land development sales sold by him and an override of a certain percentage sold by ~other salesmen. It was agreed by Caputi that all business of pending negotiations for the sale of commercial and development properties by him as a sole broker would be brought over to the plaintiff, including the proposed Frye contract. That Culmore Realty would reduce its aoo-reement with him to writing and that these promises particularly in reference to the drawing account served as an inducement for him, Caputi, to accept employment with Culmore. In view of this inducement, Caputi accepted employment as manager of the commercial and land development sales department of the plaintiff on or a bout September 5, 1956.

He stated that he held a broker's license in his own name and had been . a successful broker for many years, that recently and prior to his employment with Culmore he had sold several large tracts of land from $250,000 to $400,000 and that the sales were well known to Baritz and Katzen; that prior to the time he was approached for employment ·by Culmore, both Sam Baritz 1.\;lld Katzen congratulated Caputi for the sales; that he was attracted to the Culm ore's offer of


C. Louis Caputi.

employment primarily because of the drawing page 88 } account offered him as security between sales

realizing he would have a steady income between sales which he didn't have w.orking for himself.

He stated further that he, Caputi, lost money because of relying on Culmore 's representation of employment which Culmore later refused to reduce to writing as per agree1nent; he lost that part of the commission which Culmore received from the Frye deal which included $2,500.00 cash deposit and those monies due Culm ore Realty .on the two notes securing the balance of the commission; and he further lost the possible sales on other properties which he was not allowed to sell, but which Culmore attempted to handle throug·h Baritz and Katzen, exclusive of him (Caputi) and his department. He further testified that he had br{)ught over to Culmore as per his employment agreement all sales prospects, four of which were substantial, which were messed up by Baritz and l{atzen intermeddling with these transactions independently of him and his department. All of these sales prospects which were carried over to Culmore involved a relationship with hin1 personally and and the prospects resented any attempted dealings on the part of Culmore and its officers other than Caputi, himself.

Counsel for Caputi recall that when examined by his own counsel he testified :

That the agreement with Culmore could be terminated without notice if he, Caputi, violated any of the terms of the employment agreement and he was free to terminate the agreement at any time with or without notice if Culmore violated any of the terms of the employment contract.

Counsel for Culmore recalls that Caputi testi~ed:

That his agreement with Culmore could be terminated by Culmore without notice and that he was free to terminate the agreement at any time without notice.

The best recollection of the Court on this point is as follows: That the agreement between Culmore and Caputi could be

terminated at any time by either party. (The Court is not in a position to say that in addition to the Court's version that Caputi did not make the statement as recalled by counsel for

I I I

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"

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t

Culmore Realty Company v. C. Louis Oaputi 31

Robert I. Lain.off-Sam.uel Ba.ritz.

Caputi or that Caputi did not make the statement as recalled by counsel for Culm.ore.)

page .89 ~ ~OBERT I. LAINOFF, Plaintiff next called Robert I. Laino:ff, the

attorney for the Frye defendants.

fie testified that he represented the Frye family and had made payments to Caputi totaling $1,475.00 on the notes before he received a notice from the attorney for Culmore that Culmore had a half interest in the notes. That on February 26, 1958, he paid $625.00 to Caputi; on July 10, 1959, he paid $625.00 to Caputi; and again on January 25, 1960, he paid $625.00 to Caputi. To the date of trial, he had paid $3,350.00 to Caputi on the notes and he held $4,570.00 in escrow pending the further order of this Court. That there was still a small balance due on the notes which was not payable in full until 1963, but that the Fryes had the right to prepay payments on the note and they had so prepaid.

Cross examination of Lain off by counsel for Caputi:

He testified that all the money which he, Lainoff, gave Caputi totaled less than one-half of the total amount paid by Frye towards the two notes.

SAMUEL BARITZ, was next examined by the plaintiff.

He testified he was President of Culmore during the time that Caputi was employed by Culmore and that he was a one-half owner of the plaintiff corporation at that time; that he received a salary of $125.00 per week from the company and got no commissions. Cyrus Katzen· owned the other half of the stock of the corporation at that time. Baritz stated he sold his interest to Katzen some time after Caputi had left Culmore and that he no longer had any interest or connection with Culmore. He testified that the agreement with Caputi provided for Caputi to have charge of land sales; Caputi was to get half .of any commission on any land sold by him, Caputi, and that Caputi was to get a per entage of any commission due on land sales sold by any other salesmen with Culm ore; that the percentage was never fixe ; that other salesmen didn't have to handle sales developme t land properties thru Caputi and his department, nor did e personally have to handle


Cyrus Kat zen.

commercial and development land sales thru Caputi and the department in which Caputi was manager; that

page 90 ~ there was no fixed drawing account for Caputi but he had agreed. to help Caputi by loaning money to

him from time to time. He stated that only on two occasions were monies loaned to Caputi, once on September 29, 1956 prior to Frye sale, and once on January 8, 1957 when monies were advanced on the commission due under the Frye notes. On all other occasions monies were paid to Caputi from funds due on the Frye commission.

That to the best of his knowledge, Caputi didn't start to work on the Frye deal until after he came with Culmore and that he had to keep pushing hin1 because some other people were trying to sell this land. That he helped him with the contracts which were drawn on the sale of the Frye property.

On cross examination by counsel for Caputi, Baritz testified:

He didn't remember calling Caputi but Caputi came to see him about working for Culmore and was employed as head of sales of land, commercial and investment properties. There was no agreement about drawing accounts nor did Culmore at the time agree with Caputi that the employment contract was to be reduced to writing. He was in charge of Culmore as President and made $125.00 a week. He was in charge of everything in- the office and could sell land to be developed instead of Caputi and not necessarily thru Caputi or thru his department. He was not under subpoena and is not now a stockholder of the corporation. He did remember the Bonnet property which listing was brought in by John Grille, one of the employees at Culmore, and that he, Baritz told Caputi. that he was offering this property for sale to his brother-in-law, Mr. Diener. He denied that he was reselling this property for Diener in order to circumvent Caputi's right to a commission. He helped Caputi to sell the Frye property by telling Caputi to get a contract, and by going upstairs to Mr. Harrell's office, Culmore's attorney; to have.sales contracts prepared on the Frye property. He was no longer connected with Culmore.

CYRUS KATZEN, Plaintiff called Cyrus Katzen as its next witness ..

He testified that he was the. sole owner. ·of :Culmore at the

Cuhnore Realty Company v. C. Louis Caputi 33 /I

Cyrus Kat zen. I

present time; that he had bought Samuel Baritz page 91 ~ out some time after Caputi left Culmore. That he

served as secretary-treasurer at the time Caputi was with the corporation as well as at the present. That he was now a licensed real estate broker, but that he was not at the time Caputi worked with 8ulmore. That Sam Badtz had complete charge of the business and was the boss for all other employees of the company, that Baritz had a right to sell commercial property exc~nsive of Capu~i and his department. 1

That he, Katzen, first knew c]· .puti, his wife and daughter as dental patients, and as such, knew he, Caputi, was a real estate broker. That both Cap ti and his wife approached him for an opportunity to come I to work for Culmore. That Caputi's wife had said business had been slow and he, Caputi, needed help. That he, Katzen, rent Caputi out to talk with Baritz and that he, Katzen, met with Baritz and Caputi; they ·worked out an agreement wher~by Caputi w<>uld work for Culm ore as a real estate salesman; and he would head the land department; that Caputi 'fould be entitled to one-half of any commission received bY. Cnlmore of land sold by Caputi and he would get a per~ntage of any commission on land sales but no ·fixed percehtage of the override was agreed on; that there was no agr~ement for a drawing account; nor were any draws given to CaRuti.

That he had agreed to the [loans made to Caputi on September 29, 1956 for $200.00 and on J a.nuary 8, 1957 for $200.00. That the Frye sale was the only sale made by Caputi during the six months he wa~ with the company from .September 5th, 1956 through the !fi!st week <>f February, 1957. That no other land sales were made during this period by the company through other agentsfn which Caputi would be entitled to a percentage ·or over ide of the commission.

Cross examination by counsel r Caputi:

Katzen testified that he had 1mown Caputi for some time and as a matter of fact,_ Caputi has been a patient of his for some tim~. One time in July or Augtist Caputi, and Mrs. Caputi especially, told him that Oap-q.ti1·was not doing so well and needed work and. he sugg~sted t;ha,t he go see Baritz so that

Caputi _may get "\rork with Culmore. There was pf!.g~ 92 ~ no agr~eiD:ent except that Caputi be employed as a

· - salesma~, head the department in the sales of land,


C. Louis Caputi.

commercial and investment properties; Caputi was to receive only fifty per cent of the commissions on what he sold; that Baritz was the President of the corporation and he was an inactive member of the firm. He and Baritz each owned fifty per cent of the stock in Culmore. Katzen did not have a broker's license in the year of 1956 but has one now. l-Ie did not make any sales in 1956 and did not show any property to anyone, except property owned by him. Katzen denied he showed the I-Iassen property to Meltzer for the purpose of making· a sale .

• • • •

page 94 ~

• • • • • C. LOUIS CAPUTI,

The defendant then took the stand himself and stated:

Katzen had known me for 4 or 5 years prior to my joining Culmore. Just before Katzen asked me to accept employment, instead of being destitute, I had handled and sold two very large land transactions and both Katzen and Baritz congratulated me and Katzen remarked that he would like to have a man with my ability and experience as part of his organization with Culmore; that Katzen explained to me by way of inducement that I should work for and become part of Culmore, that Culmore could well afford to give me a steady drawing account to cover living expenses between periods of sales. When I appeared interested in his proposal, he suggested that I call Baritz for an appointment. Baritz called me and set August 7, 1956, for an appointment with me, Katzen and Baritz. The three met about August 7, 1956, and at this meeting the question arose as to how much money I should have per week by way of draw on future earnings. I indicated that I needed $200.00 per week. Finally it was agreed that until the first ·sale the draw would be for $125.00

per week and thereafter $200.00 per week. page 95 ~ It was agreed by all that purchase and sales

prospects being handled by me as an individual broker and not closed would be transferred .to department of commercial and land development of Culmore Realty Company. I was to be the manager. The Culmore Realty was to receive 50% of the commissions and the other 50%

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Culmore R-ealty Company v. C. Louis Caputi 35

C. Louis Caputi.

commissions was to be applied to the payments of all prior draws made to me or to the extent the one-half of the commission would cover them; all of these promises we agreed to reduce to writing.

Caputi was to wind up his personal business within the next thirty days and then move into the Culmore facilities. That Caputi relied on this agreement of employment and the terms and conditions and did transfer all sales prospects to the plaintiff including the Frye deal; that the chief inducement for this transaction was the provision of draws against future commissions on a weekly basis and the exclusive right to have all sales and purchases of commercial and land development handled by him and his department. Caputi never had at that thne any doubts that this agreement would be reduced to writing, until he discovered that commercial and development land sales were being attempted outside of him and his department. As part of the employment contract, it was agreed that any other member of the firm could buy or sell commercial and development land but the transaction had to be handled thru him and his department; in this event he was to receive an override of a certain percentage and the sale or purchase was to be handled under his supervision. Pursuant to this agreement, he negotiated the Frye contract and closed the Frye transacti()n and deposited the $5,000.00 cash payment with the Culmore and put the two balance of commission notes in which both he and Culmore Realty were joint payees in the company's file. It was only after he discovered that no more draws were permitted to him after the $200.00 was paid to him on January 8th, 1957, ~nd only after learning that Baritz was attempting to handle the Bonnet property to the exclusion of himself and his department and Katzen was bypassing him and taking Lew Meltzer out and showing Meltzer the Hassan property and trying to sell to Mr. Meltzer that he

asked Baritz to endorse the notes to me. When page 96 ~ Baritz refused to do that, I asked Shirley Houch,

Baritz secretary, to give me the two Frye notes which she did. I _had them photostated and gave Shirley the photostatic copies. and I kept the originals.

On cross examination by counsel for plaintiff, Caputi. testified:

He testified that the grounds of defense . and counter-claim :filed by his attorney were in error where. th~y .stated that he ~ade the Frye {leal prior. to coming with Culmore. The


George Frye, Jr.

correct statement was that the Frye deal was in process long before coming to Culmore, that several contracts were drafted and suh1nitted but not signed by the li'ryes and the negotiations were continued after coming to Culmore and a contract was finally signed on October 29, 1956.

GEORGE FRYE, JR., was called as the next witness who testified:

He had known Caputi since February 1956, that in July of 1956, he gave Caputi a listing of his land which Caputi sold to Finkelstein. That he was surprised to see Culmore Realty's name ()n the., contract of sale as he had dealt with Caputi. with this property since July 1956. The Culm ore name did not appear in any of the prior sales contracts offered to him for acceptance and signature, that he never knew anything about Culmore Realty and did not consider that he was dealing with Cnlmore Realty.

No cros.s examin~tion.

Defendant rested.

At the.conclusion of defendant's evidence, plaintiff counsel moved to strike defendant's evidence as no defenSe .of fraud was proved. This motion was overruled by the Court, to 'vhich plaintiff excepted. _

Counsel for the plaintiff and Caputi agreed on the form of the verdi~'t and its meaning. If -the jury found fQr the plaintiff~ it woul_9. be in the specific amount sued for, namely, $~,173.3"3, but that judgment. would be for· one-half· of the pliOQ~~ds o.f the notes. If the jury foWid for the defendant, it would sinl,ply so state and it. was und~rstood between counsel that th~ $200.00 (the difference between the $2, 700.00' sum paid Oap-g.ti by Culmore.': ~nd $2,5,00~0 due on the original payment of the $5,000.00. commission) would nontheless be

returned to Crilmore. · p~ge ·97} The.,.jury found- ·for the ·:defendant Caputi on the

issue joined. . . . Ogy:D_$~1 fpr the Plainti:ff moved to ~~t "~~de: th.~- verdict. as

contrary to the law ·and the ~vidence- and tli~ ~O:iiiPn. was s~t for a:r;gnment: ·On ;NQveiriber 4, 1960.

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The motion to set aside the verdict as contrary to the law and evidence was argued. The . court denied the motion and denied the counter-claim which the defendant Caputi filed in this cause. Plaintiff excepted to the court's ruling .

• • • • •

A Copy-Teste:

H. G. TURNER, Clerk.

.IND:EX TO 'RECORD

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