Goldman v. Noxon Chemical Products Co‪.‬

RUGG, C. J. This action of contract was begun on October 30, 1929. It was brought to recover commissions earned by the plaintiff as selling agent for the defendant. It resulted in a verdict for the plaintiff for $1,340.70. It was tried with a cross-action, begun on February 17, 1930, by the defendant against the plaintiff and one Lilliam Goldman in which separate verdicts were rendered against each defendant therein for $13,753.28. This cross-action was brought to recover for money received by said selling agent and his wife from the sale of goods of the corporation and not accounted for. The verdicts were rendered on July 10, 1930, and the cases have not yet gone to judgment. It was apparent to every one connected with the cases as early as March 1, 1930, that the corporation would doubtless seek a set-off in some form. There was no oral assignment by the plaintiff to his attorney Mr. Leventhal and no oral creation of a lien upon the cause of action. On July 3, 1930, when the cases were on the short list and trial was close at hand the plaintiff gave to Mr. Leventhal a written assignment of his cause of action in the present action and the proceeds thereof to secure him for his costs expended in this action and for his charges for services in both actions. It was recited in the assignment that the attorney had requested from the plaintiff a retainer on account of his fee for services to be rendered in the two actions before proceeding with the trials, which retainer the plaintiff was unable to pay. The trial Judge found that this assignment was made in good faith, so far as it could be so made in view of the other facts, and for a valuable consideration. The defendant filed a motion in the case at bar on July 16, 1930, seeking to set off the judgment to be rendered in this action on the verdict for the plaintiff against the judgment to be rendered in its favor in the cross-action on the much larger verdict against James Goldman, the present plaintiff. Harold A. Leventhal, the attorney for the plaintiff James Goldman, opposed the allowance of this motion. The motion for set-off of judgments was allowed except as to taxable costs in the case at bar. The trial Judge ruled that the assignment to Mr. Leventhal constituted no legal bar to the allowance in his discretion of the motion for set-off of judgments. Then follows the statement that Harold A. Leventhal, the assignee of the plaintiff, being aggrieved by this ruling and by the allowance of the motion to set off judgments duly claimed exceptions and prays that his exceptions be allowed. The exceptions in this form were allowed.