c284:No. 4007

SMYTH, Chief Justice
(dissenting). Not being able to believe any of the testimony on which Magg rests his title, I am compelled to refuse my assent to the-opinion just handed down. It is not my purpose to go into the matter very deeply. I shall indicate only some of the things upon which I base my opinion.
The stock involved is valued at $200,000. It paid annually in dividends 30 per cent, on its face value, and the sum of $80,000 derived from it as dividends is now in the hands of the Alien Property Custodian. Sachs, a German subject, was owner of the stock until April, 1915, when he transferred it to Wustenfeld, also a German subject, in consideration of the conveyance to him by Wustenfeld of a four-fifths interest in the business of Gottschalk & Co., of Germany. On February 22, 1917, Wustenfeld pretends to have sold the stock to Magg for $200,000, or 840,000 marks, 10,000 marks to be páid in cash, and the remainder “by counter-payment.” On the next day Wustenfeld transferred his claim against Magg for the “counter-payment” to Sachs, and received from the latter a retransfer of the four-fifths interest in the business of Gottschalk & Co., plus 10,000 marks, or $2,380, a negligible amount, when the value and earning power of the stock are considered. Germany was then in the midst of the war. The United States had not yet entered it. Under these circumstances it is most remarkable that Wustenfeld should be willing to exchange his stock in a United States corporation, valued at $200,000 and paying large dividends, for $2,304 and an interest in a German concern— the same interest which he had surrendered for the stock less than two years before, there being nothing to show that this interest represented a profitable investment.
Magg was the maternal uncle of Sachs. The “counter-payment” mentioned in the sale of the stock is said to refer to a debt which Magg claimed was due to him from Sachs’ parents. Fie declares that Sachs’ father and mother owed him 660,000 marks, and that he and the younger Sachs made a written agreement on July 15, 1914, in which the latter promised to pay that sum to him, with 5 per cent, interest. How was this debt incurred by the elder Sachses? It is asserted that in 1871 they owed him 700 florins, or $285.60, with interest at 4 per cent., and that this amount was increased from time to time until it reached $1,103.13 in 1879. In 1880 there were certain court proceedings in which the debt was fixed at 3,000 francs, or $714, to bear 3 per cent, interest annually from February 15, 1880. Magg testified that at the time of the court proceedings he waived his claim to this debt, but that hé hoped the Sachses would pay it some time. The elder Sachs, his brother-in-law, lived until 1897, and, although financially able to pay the debt, Magg never asked him to do so, and neither he nor anybody else ever paid anything to him upon it. Why the younger Sachs and Magg came together, if they are to be believed, in July, 1914, and made the written agreement just mentioned, does not appear. If Sachs desired to pay the debt then, he had the ability to do so, for he was rated as a millionaire. But how the 3,000 marks, $761.60, of 1880, jumped to 660,000 marks in 1914, remains unexplained. If you take 3.000 marks, and figure the interest on them at 3 .per cent, per annum, the rate fixed by the court in 1880, and compound the interest annually from 1880 until July, 1914, 33% years, you will reach the sum of only $1,954.57. If figured at 5 per cent., the rate fixed in the 1914 agreement, the amount due would be $3,743.90. Yet Sachs by the agreement promised, to pay $157,142. Í do not believe that the agreement was made on July 15, 1914, but am convinced it was made at a later date, for the sole purpose of bolstering up the claim which Magg now asserts.
Now, let us look a little more closely into the pretended purchase of the stock by Magg. He was, and is, a Swiss citizen. It was very desirable on the part of Sachs and Wustenfeld that the stock should be placed in his name, so that none of the belligerents might be able to seize it as the property of an enemy alien. According to the testimony Sachs called Magg to Germany without telling him what the purpose of the call was. He stayed at the Sachs home. Sachs asked him if it would be all right if he paid in American money the claim he '(Magg) had against Sachs’ parents, and if he was willing to have the affair settled then. He also inquired whether Magg would be satisfied with what he (Sachs) would give him, to which he replied, “Yes."
The next day he went with Sachs to his office, and there met Wustenfeld for the first time. Hte made no inquiries of any one as to the value of the stock. Sachs says that Magg knew when he came to Germany that “he was to buy an object,” and consequently he took some money along, but Magg says that he had no notice of the purpose for which he was summoned by Sachs. The latter says he did not tell Magg to bring any money, but none the less he had with him 10,000 marks. Wustenfeld declares that on February 22, 1917, the day before the contract of sale between Wustenfeld and Magg was made, it was arranged between him and Sachs that he should “hand over to Mr. Magg” the shares of stock for which he was to receive the interest from Gottschalk & Co., and that he sold the stock to Sachs. He further said that, when Sachs proposed to him to buy the interest in the stock, he “was willing to do so.” This occurred on cross-examination. On redirect he was told to read carefully his contract with Magg and then say to whom he had sold the stock. After having read the contract he answered that he had sold it to Magg. He also testified that he had never met Magg before, and that the only thing he said to him during the meeting was, “How do you do?” that his talk was with Sachs and not with Magg, and that Sachs did the talking.
According to this testimony Magg and Wustenfeld, parties to this important financial transaction, never met but once, never discussed the value of the stock, Magg did not inquire of any one relative to its value, and the only words which passed between them were, “How do you do?” uttered by Wustenfeld. Moreover, the latter repeatedly says he sold the stock to Sachs, but there is a writing in which he’ declares he sold it to Magg. By that writing Magg was to pay for it 10.000 marks and discharge the remainder of the purchase price by “counter-payment.” On the next day Magg and Sachs claim to have signed a paper which recites that Wustenfeld had transferred his claim of 830,000. marks ($200,000) against Magg to Sachs, ’and that' the latter applied upon the claim 660,000 marks due from him to Magg under the agreement of July, 1914, deals with other items, and concludes by saying that Magg owes Sachs 84,000 marks. This imposes on Magg a different obligation from that imposed by the paper signed-by him and Wustenfeld.
If Sachs desired to discharge the alleged debt of his parents to Magg, why did he not transfer to him his interest in the Gottschalk Company, instead of transferring it to Wustenfeld, and then having the latter transfer his American stock to him (Sachs) that he might deliver it to Magg? Did Magg bring the 10,000 marks with him from Switzerland under the circumstances disclosed? The sum is equivalent to $2,380, and it is most unreasonable to suppose that he, without previous notice, and in war time, would bring that amount with him. He did not produce any check or account book to show that it came from his funds/ nor does he claim to have had it with him, nor explain where it came from, nor does anyone else. Magg testified on his direct examination, “We handed him, Wustenfeld, the 10,000 marks in cash.” Who is meant by “we”? Presumably himself and Sachs, not himself only. Wustenfeld says nothing about the matter save that the 10,000 marks were paid to him in bank notes.
Sachs allowed Magg 4,000 marks on account of his expenses in coming to Germany, thus reducing the balance due him to 80,000 marks. Why should Sachs have paid Magg’s expenses if he came to Germany on his own business? Magg says he later deposited in a German bank 80,000 marks to meet the payment- due to Sachs. This is the way it was done, according to the manager of the Swiss bank, where, it is said, Magg obtained the money: The fund was transferred tó the German bank, and there deposited in the name .of the Swiss bank. This deposit, according to the manager, could be assigned by Magg at any time, or could have been collected by him from the bank by check. In other words, the money was subject to Magg’s control, and the bank books disclose that it has not been paid to any one. I do not think it was ever the intention of Sachs or Magg that this money should be collected by the former. If it was, why has it remained in the bank so long?
I do not believe that the agreement of July 15, 1914, between-Sachs and Magg, or the papers of February 22 and 23, 1917, were signed on the dates, respectively, which they bear, but that they were- signed after the passage of the Trading with the Enemy Act, and for the purpose of evading it, or, if the papers of February 22 and 23 were made at the time they purport to have been made, that they did not, and were not intended to, have the effect of transferring to Magg the stock in question.
It is true no one testifies that the story which appellant and his witnesses tell is false, but the circumstances which indicate its improbability-are many and convincing. The things upon which Magg relies are hard to believe. They are improbable and unnatural because they are contrary to common experience. In Vreeland v. Vreeland, 48 N. J. Eq. 56, 21 Atl. 627, the Vice Chancellor was called on to accept or reject the testimony of‘a witness uncontradicted by other witnesses. In refusing to accept it he said:
“Evidence, to be worthy of credit, must not only proceed from a credible source, but must, in addition, be credible in itself. And by this is meant that it shall be so natural, reasonable, and probable, in view of the transaction which it describes or to which it relates as to make it easy to believe it.”
To the same effect see Taylor v. Taylor (R. I.) 90 Atl. 746, 750. Eor the reasons given, and others that might be stated, I think the decree of the lower court was right, and should be affirmed.

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