While there is no evidence in this case that Fanny Ottenberg is suffering from financial need, the question of whether the protection from improvidence was an element in making the agreement must, it would seem, be looked at as of the time of the signing of the agreement, and taking account of the fact that such agreements are most often entered with the knowledge that though the older parties (Joseph and Fanny here) might be financially independent as of the time of signing, but that the vagaries of life often result in the diminution of life's savings, provision for care in old age would therefore seem to be a prime condition of any agreement for the transfer of a business prior to the death of the older parties to the agreement such as is involved in this case.
It may be objected to by the defendants that no case has arisen in this jurisdiction which establishes a precedent for the Court's holding here that the agreement entered into by the Ottenbergs is a valid contract calling for the enforcement of the support payment provision as stated therein. However, the fact that this is one of the 'open spaces' in the law in this jurisdiction will not deter the Court from properly filling such void. The Court rests its opinion, however, on the bases that it has filled this open space in the law with a view to the social interests which seem to be involved, with such aid as could be obtained from authorities elsewhere, and from logic, history, custom, utility, and the accepted standards of right conduct. Clark v. Associated Retail Credit Men of Washington, D.C., 1939, 70 App.D.C. 183, 105 F.2d 62.
Defendants herein have objected to the ruling of the Court with respect to the Court's refusal to receive in evidence the testimony of Louis Ottenberg with respect to the purported intentions of Joseph and Melvin Ottenberg as they related to the agreement. The testimony of Louis Ottenberg, now deceased, was attempted to be introduced by way of deposition. Plaintiff objected on the basis of the hearsay rule, and defendants claimed it should be admitted under an exception to that rule.
The Court, in the exercise of its discretion, and after hearing argument by counsel for the respective parties, refused to receive the deposition in evidence. It was the opinion of the Court that where the testimony of Florence, one of the signors to the agreement, was introduced, and the deposition of the widow, Fanny, was available, there was no real necessity for the admission of the attorney Louis Ottenberg's deposition. Also, the plaintiff's counsel alleged, and plaintiff testified, that something of a feeling of animosity existed against Fanny on the part of Louis. In view of this, the hearsay rule was held to apply to Louis' deposition.
It is the opinion of the Court that the claim of the plaintiff is valid as against Florence Ottenberg, in her individual capacity. She, as co-signor with Melvin of the agreement, was a party and received part of the stock given by Joseph pursuant to the agreement. Also, since the vitality of the agreement was sustained and reliance made upon it through August of 1958, the Court refuses to entertain the defendant's defense of laches on the part of Fanny and her assignee. Any delay in making the claim here is considered excusable or justifiable on the basis of the facts in the case.
Findings of fact and conclusions of law are considered to be fully set forth in this Opinion, and therefore specific findings and conclusions would in the Court's opinion, be superfluous.
Counsel for plaintiff will submit an appropriate order and judgment to the Court within five days of the date of this opinion.
Chronology of Important Events in Ottenberg Case.
Ottenberg Bakery, a proprietorship,
operated in northwest Washington Prior to 1920
Melvin Ottenberg employed by
Joseph and Fanny Ottenberg in early
Florence Samler employed by
Joseph and Fanny Ottenberg Prior to 1944
Melvin and Florence married 1944 or 1945
Ottenberg Bakers, Inc., the
corporation, formed Dec. 30, 1946
Original stock certificates issued Jan. 3, 1947
Agreement dated Jan.-Mar., 1947
Stock receipted for as follows:
Cert. 1 -- Jseph 249 8/8/47
2 -- Fanny 1 8/2/47
3 -- Melvin 149 8/18/47
4 -- Florence 1 8/18/47
Fanny transferred her share to
Joseph gave 125 shares to Melvin
and 124 shares to Florence 6/30/48
Gift tax return of donor Joseph
Ottenberg filed; Donees' return
also filed by Melvin and Florence 1949
Joseph gave Fanny's one share to
Florence 2/ /55
Joseph Ottenberg died (Adm.
Fanny signed letter to Melvin
waiving payments, subject to
Melvin Ottenberg died (Adm.
Fanny verbally demanded
resumption of payments 11/ /57
Fanny demanded resumption of
payments waived 1/10/56 in
Assignment of claim of Fanny
Ottenberg to Plaintiff,
Gilbert Ottenberg 11/26/58
Suit filed 11/29/58
© 1992-2004 VersusLaw Inc.