273 F.2d 882 (7th Cir. 1960), 12655, Standard Brands, Inc. v. Millard

Docket Nº:12655.
Citation:273 F.2d 882
Party Name:STANDARD BRANDS, INCORPORATED, a Delaware corporation, Plaintiff-Appellant, v. Earl F. MILLARD, Defendant-Appellee.
Case Date:January 18, 1960
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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273 F.2d 882 (7th Cir. 1960)

STANDARD BRANDS, INCORPORATED, a Delaware corporation, Plaintiff-Appellant,

v.

Earl F. MILLARD, Defendant-Appellee.

No. 12655.

United States Court of Appeals, Seventh Circuit.

January 18, 1960

Rehearing Denied Feb. 18, 1960.

R. Walston Chubb, St. Louis, Mo., Preston K. Johnson, Jr., Belleville, Ill., Johnson, Johnson, Ducey & Dixon, Belleville, Ill., Robert S. Allen, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, Mo., for appellant.

Marvin E. Klitsner, Lyman A. Precourt, Fairchild, Foley & Sammond, Milwaukee, Wis., for appellee.

Before MAJOR, DUFFY and SCHNACKENBERG, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

This is an appeal by Standard Brands, Incorporated, plaintiff, from a judgment of the District Court sustaining a motion of Earl F. Millard, defendant, to dismiss a complaint against him filed in a diversity of citizenship case by plaintiff, and dismissing the cause. As alleged in the complaint, plaintiff sued as 'assignee of substantially all of the assets of Clinton Foods, Inc. (hereinafter referred to as 'Clinton'), a Delaware

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corporation now in dissolution; including all the assets of an unincorporated division of Clinton, known as American Partition Company 1 as a going concern'.

The complaint alleges, in some detail, that defendant was a director of Clinton and was chief executive officer of Partition; that he negligently and intentionally failed to carry out his obligations to Partition, resulting in a waste of corporate assets and business opportunities to Partition, and thereby Clinton was damaged.

Plaintiff sues as assignee of Clinton as owner of its cause of action against defendant for such damages.

Attached to the complaint, as Exhibit 1, is a copy of 'General Conveyance, Assignment and Transfer' executed and delivered by Clinton (referred to as Grantor) to plaintiff on April 16, 1956, which recites that there was included in assets transferred, inter alia: '(g) All * * *, causes of action, judgments, claims and demands of whatever nature relating to Grantor's Corn Products and * * * Partition Businesses * * *.'

Exhibit 1 also recites that Clinton '* * * sold, assigned, * * *' to plaintiff

'* * * all of the property and business (as a going concern) of every name and nature and wheresoever located, of Grantor's * * * Partition * * * except refunds or claims for refund of...

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