In point of fact, quite the opposite is the case.
Chromcraft was merged with Alsco and by February 1969 Harvard Industries Inc. purchased Stone's entire interest in Alsco and then in November merged with Alsco. Harvard was not told of the Fund which was an asset of Chromcraft. On top of this, Stone represented later in tax litigation brought by the United States that he had no interest in the Swiss Fund but that he was only involved as Chromcraft's president. Through years of litigation he successfully insisted on this position and thereby avoided what would have been major income tax liability.
Now, having won, he claims an oral agreement with Rosenbaum to reimburse him for money borrowed by Rosenbaum from the Swiss Fund and profits gained by investing same. He is unable to state the alleged oral terms of the agreement to share the refund money such as the amount, the interest, the time of payment or the profits involved. The so-called agreement was, at best, a casual remark made sometime around 1983. So far as appears, the statute of limitations would have run in any event. Stone has no right to enforce such an agreement because to do so would perpetuate a fraud. Others have claims on the Swiss Fund because of Stone's continuing fraudulent dealings.
Stone cannot appeal to equity because he lacks clean hands. The Court will leave him where it finds him and will dismiss the complaint. Stone has engaged in both unlawful and inequitable conduct repeatedly in his manipulation of the Fund. It would perpetuate his misconduct to consider his present claims which constitute a last moment attempt to regain control of money improperly set aside by his fraud. It would also perpetuate the fraud to seriously honor his present contentions, which contradict prior litigating positions he took to achieve tax or other benefits. It would be the height of inequity to give performance to his ephemeral contract claim and to ignore the rights of creditors who lost money because of his and Rosenbaum's conduct.
Rosenbaum's motion for summary judgment must be granted and the complaint dismissed. Stone lacks clean hands to press his equitable claims and he has wholly failed to establish an enforceable agreement, whether or not the Statute of Limitations is also a bar. On the record before the Court there is not sufficient evidence to submit the contract issue to a jury and many elements of an enforceable agreement have not been presented. E.g., Stone deposition at 34, December 8, 1988 (Penn Central Company v. Stone, No. 3-153072 (E.D. Pa.)). A mere recital does not meet Stone's burden. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
The Court grants Rosenbaum's renewed motion captioned as a motion for summary judgment and denies Stone's motion for summary judgment. An appropriate Order is filed herewith.
ORDER - June 2, 1989, Filed
Upon consideration of the cross-motions for summary judgment and the entire record herein, and for the reasons stated in the accompanying Memorandum, it is hereby
ORDERED that Rosenbaum's motion for summary judgment is granted; and it is further
ORDERED that Stone's motion for summary judgment is denied; and it is further
ORDERED that the complaint shall be and hereby is dismissed with prejudice.