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Apart from the question whether such a ruling would be consistent with our earlier opinion, we do not think that the pleadings can be fairly construed to confine Steranko to the position that he would and could have sold the 22, shares on January 7, In support of its contention that Steranko is bound to this date, Inforex refers to paragraph 19 of Steranko's declaration and to exhibits B and D to that declaration.

See Mass. Nothing in paragraph 19 or exhibit B can be construed as averring Steranko's willingness and ability to sell all 22, shares on January 7, In exhibit D, Steranko's counsel, replying to Inforex's refusal to remove the restrictions, stated that Steranko would hold Inforex liable for "any diminution in the value of the shares of Inforex stock which he could have and would have sold on Friday, January 7, " but for Inforex's refusal, and "for the diminution in value, if any, of all 26, shares from the value of such shares on January 7, There was no allegation that Inforex's refusal cost Steranko an opportunity to sell the stock to a ready and willing buyer or buyers on a certain date.

The judge could have concluded that the phrase "could have Inforex also argues that under New York law Steranko's damages must be measured from the date of the wrongful refusal or, in the words of Inforex, from "a reasonable time thereafter of one day". This interpretation of the rule would not only render the words "reasonable time" meaningless, but is not supported, as Inforex claims, by Riskin v. National Computer Analysts, Inc.

While the Supreme Court of New York, in determining whether Riskin suffered damages, used the price on the date of refusal itself September 23, for the purpose of comparison with the price at the time of trial, it noted that "the shares Thus, that court did not require that the market price on the date of refusal be used to measure damages rather than a higher price reached during a "reasonable time thereafter.

On appeal in Riskin the judgment was modified by the Appellate Division which held that the date of refusal was July 9, , and not September 23, While the court used the price on July 9 in the computation of damages, there was again no indication that the stock had a higher value at any time reasonable or unreasonable thereafter.

Also, Inforex's position does not comport with several other New York cases which hold that determination of a reasonable time depends on the circumstances of each case Phillips v. Bank of Athens Trust Co. Monzo, N. See citations in Steranko v. See also Mullen v. Quinlan, N. Inforex argues that those cases, which involved a defendant's unauthorized sale of the plaintiff's stock, are not relevant to a mere refusal to remove a restriction on sale, the situation in this case and in Riskin.

However, we relied on those cases in our previous opinion, and while the Riskin court did not cite them, its statement of the rule used in measuring damages comports with the rule stated therein. See Riskin v. Furthermore, in our view, there is a basic similarity between the situation of one who intends to sell stock which is wrongfully restricted and that of one who must repurchase stock wrongfully sold so as to warrant application of the same rule of law in the computation of damages.

See Madison Fund, Inc. Charter Co. The justification for fixing the date from which damages are measured within a "reasonable time" of the date of refusal rather than on the date of refusal itself, in cases involving wrongful sales of stock, reflects several considerations see Gelb v. Zimet Bros. The most important of these is to give the rightful owner a reasonable opportunity to determine the trend of the market, and at what price to purchase "replacement" stock.

Burhorn v. Lockwood, 71 App. By analogy, Steranko, after he decided to dispose of his stock and took the first step in that direction with his demand on January 7, , was entitled to a reasonable opportunity to determine the trend of the market and an advantageous time at which to sell the shares. In ruling that the determination of a "reasonable time" must include a consideration of " a the time needed to remove any restrictive legends on the stock, b the time needed for the issuance of new [clean] certificates and c the time needed for an orderly disposition of the stock in the market," the judge applied correct principles of law comporting with our earlier opinion.

Evidentiary Hearing. Inforex contends that the judge erred in permitting Steranko to introduce evidence pertaining to other sales of once restricted stock to show what would have been a "reasonable time" in which Steranko might have sold the 22, shares had the restrictions been removed.

Inforex argues that this evidence was not relevant because Steranko failed to show that the circumstances of the actual sales were similar to those which would have attended the sale of 22, shares. The challenged evidence included testimony and exhibits pertaining to Steranko's demand for and State Street Bank's release of the 8, shares from which Inforex had voluntarily removed the restrictions and to Steranko's subsequent sales of 6, of these shares as well as other testimony and exhibits which were offered to show the average time between demand and release of restricted shares intended for sale by other individuals and the average time of obtaining the opinion of corporate counsel regarding the need for registration of these shares.

There was no error. As this evidence referred to the period just before and just after Inforex's refusal to release the 22, shares, 4 the judge could have concluded that there was substantial identity between the circumstances of the other sales and those of the sale of the 22, shares. See Robitaille v.

Netoco Community Theatre of No. Attleboro, Inc. Massachusetts Port Authy. Moreover, the admission of this evidence was harmless since it appears to have been largely unreflected in the judge's findings Piemonte v. New Boston Garden Corp. Both parties argue that if it was proper to hold an evidentiary hearing on the issue of "reasonable time," then the judge drew an erroneous conclusion from the evidence in fixing the time as seven business days after Inforex's wrongful refusal on January 7, Not surprisingly, since the price of the stock rose immediately after January 7, , Inforex argues that this was too much time and that three business days were sufficient; while Steranko contends that the period found by the judge was far too short to enable Steranko to make an orderly disposition of his stock.

Where, as here, we have before us a transcript of the evidence, exhibits, and the judge's rulings, his findings will not be disturbed unless clearly erroneous although we may find facts in addition to those found by him. Taylor v. Lassell, 4 Mass. Steranko v. We perceive no such error in this instance. There was evidence adduced at the hearing which supports the judge's findings. Increase in Value Between Trial and Delivery.

Inforex contends that Steranko has been made more than whole by the damage award inasmuch as he received a a sum amounting to the difference between the highest interim value of the stock during a reasonable time after Inforex's wrongful refusal and the time of trial and b the stock itself, which, by the time it was delivered to him free of restrictions on September 8, , after our earlier opinion in this case, had increased about twofold over its value at the time of trial June 18, This increase in value, Inforex argues, gave Steranko more than he would have received had he sold the stock on January 7, , or within a reasonable time thereafter, and should therefore be deducted from his damages.

Steranko argues that the risk of an increase in price between time of trial and the delivery of the shares should be borne by the wrongdoer, Inforex, and that the increased value of the stock at the time of delivery should not be deducted from his damages. Inforex's contention is not properly before us, inasmuch as Inforex failed to raise it before the judge upon remand on the question of damages.

Inforex argues essentially that it was excused from raising the issue at that time because the judge was bound to apply the rule set out in our previous opinion that damages were to be measured from a reasonable time after the refusal to the time of trial. Although consideration of the change in value of the shares between the time of trial and that of delivery was not included in the formula directed to the trial judge upon remand, there was nothing in that direction which precluded Inforex from raising that issue before the judge.

The purpose of the remand was to have the judge determine damages; and Inforex, at that time, should have raised any issue which it thought pertinent to that determination. Inforex cannot now complain of its failure to take advantage of that opportunity. See Fisher v. Fisher, Mass. See also Shulkin v. Shulkin, Mass. Ramos, Mass.

Bedford, Mass. Even assuming that Inforex were excused from raising that issue at the hearing before the judge, it has cited no New York authority, nor have we found any in circumstances similar to those presented here, calling for the assessment of damages as of the time of delivery of stock rather than at the time of trial.

The parties dispute the proper date from which interest should be computed on Steranko's damages. Inforex argues that the judge was correct in ruling that Inforex's refusal to transfer the restricted stock was a conversion, and that therefore interest was to be measured from the date of commencement of Steranko's action brought on November 21, , in accordance with G. Steranko contends that Inforex's action was a breach of the employment agreement and that interest should be measured from the date of the "breach or demand" in accordance with G.

As neither party has argued whether the law of New York or Massachusetts governs the determination of Steranko's right to interest or its rate they appear to have assumed that the law of Massachusetts governs , we apply the law of this jurisdiction. Commercial Credit Corp. Stan Cross Buick, Inc. Hobbs Brook Agency, Inc. North River Ins. Whether or not Steranko's action regarding the stock should be characterized as one for conversion, our earlier opinion held that Steranko's remedy was generated directly by Inforex's breach of the employment agreement.

Page 17 of the Debtor's Business Plan included as Exhibit A at the hearing , reflects the projected cash flow of the Debtor in the form of gross receipts and gross disbursements through January 4, The estimates contained in said Business Plan were prepared completely in good faith and represented a reasonable forecast. During this hearing no allegations were made or introduced of any fraud, dishonesty, incompetence, misconduct, mismanagement or any other irregularity in the management of the affairs of the Debtor by current management who, although experienced, were appointed in a reorganization by the Debtor's management only within the last two weeks.

I would have expected none since the matter was not in issue. I make the following Rulings of Law: 1. To the extent that the funds in the Depository Accounts existing prior to the commencement of the reorganization proceedings and the funds remitted to the Depository Accounts or otherwise received by the Debtor during the reorganization proceedings constitute "cash collateral", as that term is defined in Section a of the Bankruptcy Code, in which one or more of the Financing Group has an interest or claims ownership thereof hereinafter "cash collateral" , "adequate protection" for the use of such cash collateral is provided to said party or parties by the continued remittance of payments to the Debtor of the gross receipts of rental leases, maintenance contracts, sales to distributors and end users, and payments from subsidiaries, and as a loan entitled to a first priority expense of administration status, and secured by a security interest in substantially all of the assets of the Debtor including a pledge of the stock of the European Subsidiaries.

That the Debtor be and hereby is authorized to maintain the depository, special purpose and operating accounts set forth on Schedule A. Said accounts may keep the same account numbers, signatories and checks which were in existence as of the commencement of the reorganization proceedings except with respect to signatories which have been changed by the Debtor.

The Debtor be and hereby is authorized to make deposits in said accounts, receive payments and transfers therefrom in the ordinary course of its business and all persons owing moneys to the Debtor for goods sold or leased or services rendered are ordered to continue to make payments to the Debtor or designated depositories in accordance with their contracts or obligations to the same effect as before the commencement of this proceeding.

The Banks set forth on Schedule A are directed and empowered to honor all checks, drafts and wire transfer orders on said accounts dated October 23, and thereafter to the extent of funds on deposit. New England Merchants National Bank, The First National Bank of Boston and Old Colony Bank and Trust Company of Middlesex County are authorized to honor all checks and drafts for payroll and payroll related expenses and employee expenses dated prior to the commencement of the reorganization proceedings to the extent of funds on deposit.

The Banks set forth on Schedule A be and hereby are ordered to turn over the Debtor or pay as directed by the Debtor through checks, wire transfers or drafts all funds in said accounts which were on deposit at the commencement of the proceedings and all funds which will be remitted to or deposited in such accounts through November 30, The Debtor be and hereby is directed to deliver to the Financing Group, with copies to be filed with the Clerk of this Court and the U.

Trustee, a weekly accounting of all cash receipts and cash disbursements by category, substantially in the form used on page 17 of Schedule B hereto. To the extent reasonably practicable the Debtor will attempt to identify the source of said cash receipts in accordance with the various leasing, financing or agency agreements with the Financing Group.