money, and it is not encompassed in any release.
Levin also contends that Garfinkle is liable to him for money he expended to upgrade computer facilities at Levin's Philadelphia office. Finding 218. Levin himself retains possession of this equipment. Although Garfinkle suggested that he buy it, the decision to do so was Levin's, and Garfinkle received no benefit from Levin's purchase. I see no basis for holding Garfinkle liable. Moreover, the parties discussed the computer equipment when Levin purchased the Charlotte properties in June, 1976, at which time Garfinkle refused to pay for it. Accordingly, the equipment is encompassed in the June 29, 1976 release between the parties.
Levin also contends that he was forced to satisfy a $ 4,500 debt of Garfinkle's as a condition for doing business with a computer programming company. Levin did not make the payment at Garfinkle's request, but did so on his own initiative, and I cannot hold Garfinkle liable for this payment.
Levin further contends that he made a $ 21,000 mortgage payment on behalf of Garfinkle in return for Garfinkle's assumption of certain of Levin's obligations. Finding 221. Assuming this to be true, there is no evidence that Garfinkle did not perform any promise he made with respect to this payment, and thus there is no basis for imposing liability upon him for it.
Finally, when Levin negotiated a $ 200,000 loan from defendant K. B. Weissman in January, 1977, Garfinkle received $ 60,000 from the proceeds. Levin alone was named obligor on the note, but Garfinkle agreed to share repayment to Weissman in proportion to his share. Finding 219. Weissman seeks payment of the $ 200,000 note as a counterclaim in this action. It is not clear from the record how much of Garfinkle's share of the loan has been repaid, but Garfinkle is liable to Levin for whatever amount remains unpaid on Garfinkle's share.
At the time Levin purchased the Charlotte properties from Garfinkle, Garfinkle promised to assume liability for one-half of any losses connected with the Bromley Estates, a New Jersey real estate development. Subsequently, because of Garfinkle's failure to forward payment in settlement of a claim, judgment was entered against Levin in the amount of six million dollars. Findings 222-224. At this time Levin's actual liability as a result of the judgment is uncertain, but if and when Levin must satisfy the judgment, Garfinkle will be liable to Levin for one-half of such amounts as may be necessary to satisfy that obligation.
Garfinkle also promised to indemnify Levin for any liability arising out of work Levin performed at Sutton at Collingswood, another New Jersey property. Finding 225. Levin paid part of one settlement involving this property. However, the record is not clear whether he was forced to do so or voluntarily paid as an accommodation to Garfinkle. Levin further contends that there is ongoing litigation for which he may incur liability. However, since no judgments have been entered as yet, Levin has no grounds for seeking indemnification from Garfinkle.
Finally, Levin also contends that Garfinkle is liable to him for payments Levin made to satisfy the so-called Peck judgment. Findings 228-237. The record is clear, however, that Levin voluntarily agreed to assume a share of the Peck obligation, and that Levin had his own counsel protecting his rights in negotiating settlement of the Peck matter. Neither Garfinkle nor Fensterheim has any liability to Levin because of the Peck judgment.
X. The Sale of Levin's Interest in the Purchase Money Mortgages
Levin contends that Garfinkle and Fensterheim's U.C.C. sale of Levin's interest in the purchase money mortgages from the Charlotte properties was wrongful, because they fraudulently failed to make payments and to give him credit to which he was entitled, and because, taking into account the credit due him, his payments were current at the time the sale occurred. Levin seeks to have the sale set aside, and to have the collateral returned to him, or, in the alternative, an award of damages.
At the time of the sale, Levin's outstanding indebtedness under the deed of trust was $ 777,935. His interest in the purchase money mortgages totalled approximately $ 1.7 million, for which HAW Corporation "paid" $ 500,000 at auction. Findings 161, 167. Unquestionably, when Levin's interest was sold, money was due him, and he had not been given all the credit against his indebtedness to which he was entitled. Summarizing the various Findings of Fact relating to these credits, Levin was entitled to a total credit of $ 324,942, made up as follows:
$ 90,000 from renegotiation of the Sheffield Farms mortgage;
$ 191,537 from the Timberline and Hunt Club mortgages;