Fidelity & Cas. Co. of New York v. State ex rel. McWhir

• Decision Date: 04 March 1941
• Docket Number: 16325.
• Court: Indiana Appellate Court
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. STATE ex rel. McWHIR.

32 N.E.2d 102

110 Ind.App. 507

FIDELITY & CASUALTY CO. OF NEW YORK v. STATE ex rel. McWHIR.

No. 16325.

Appellate Court of Indiana, in Banc.

March 4, 1941

White Wright & Boleman and George C. Forrey, III, all of Indianapolis, and Christian & Waltz, of Noblesville, for appellant.

Oscar F. Smith, of Indianapolis, and Cloe, Campbell & Cloe, of Noblesville, for appellee.

CURTIS Chief Judge.

This was an action brought by the State of Indiana, on the relation of Hazel McWhir, appellee, growing out of an alleged transaction between the relatrix and Investment Management Inc., for which the appellant as surety executed a "Blue Sky Bond." Appellee's complaint seeks the return of certain securities which Investment Management, Inc. allegedly held in trust for the relatrix, or, in the alternative, damages, together with costs and reasonable attorneys' fees, and seeks to hold the appellant liable on the aforesaid "Blue Sky Bond."

The issues were formed by the appellee's complaint in one paragraph, which charged that Investment Management, Inc., was organized in 1932 as a dealer in securities; that on August 29, 1932, Investment Management, Inc., obtained a license as a securities dealer from the State of Indiana and filed a "Blue Sky Bond" with this appellant as surety thereon; that Howard N. Simms was president, Nathan T. Washington, Jr., was secretary-treasurer, and Robert H. Bryson and John C. Connan "were directors and/or agents of Investment Management, Inc." (these persons were named as defendants in the trial court); that on August 26, 1932 the relatrix was induced by Investment Management, Inc., as part of the issue and sale of its capital stock to exchange certain securities she owned for certain shares of Investment Management, Inc., which were not registered or qualified by the Indiana Securities Commission, such exchange being made with the understanding that if Investment Management, Inc., be not operated on a paying basis the stock originally owned by the relatrix would be returned to her; that Investment Management, Inc., never was operated on a paying basis, and in December of 1932 was declared insolvent and a receiver was appointed; that within two years from the aforesaid exchange the relatrix elected to void the exchange and that she tendered back the securities she had received and demanded the securities she had given or the equivalent thereof in money, which tender and demand were refused.

No service was obtained on the defendant Howard N. Simms. The defendants Nathan T. Washburn, Jr., Robert H. Bryson, and John C. Connan, though served, did not plead. The action was eventually dismissed as to Howard N. Simms.

The defendant Fidelity and Casualty Company of New York, appellant herein, filed a motion to require the plaintiff to separate its several causes of action stated in the complaint into separate and distinct actions and to docket them as such, which motion was overruled. A demurrer to the complaint was then filed by the appellant and overruled after which it filed a general denial to the complaint.

There was a trial by jury resulting in a verdict for the appellee and against the appellant Fidelity and Casualty Company of New York and John C. Connan, for $1,195 and costs. The defendants Nathan T. Washburn, Jr., and Robert H. Bryson recovered a directed verdict in their favor. Judgment was duly entered in accordance with the verdict.

The errors relied upon for reversal are, separately, the overruling of the appellant's motion to separate the complaint into separate actions and to docket them as such, the overruling of the appellant's objection to appellee's demand for a trial by jury, the overruling of the appellant's demurrer to the complaint, and the overruling of the appellant's motion for a new trial, to each of which rulings the appellant at the time excepted.

The complaint in substance alleges that in the year 1932 Investment Management, Inc., was organized under the laws of the State of Indiana for the purpose, among other things, of dealing in various securities; that on or about the 29th day of August, 1932, it applied to the Securities Commission of Indiana and was granted a dealer's license and that with such application it filed a bond with the appellant as surety in the sum of $5,000 conditioned upon the faithful compliance with the so-called "Blue Sky Law" of this state. Burns' Ann.St. § 25-801 et seq. (The bond ran to the State of Indiana.) Continuing the complaint alleged:

"That on or about the 26th day of August, 1932, the relatrix was the owner of certificates of stock in the Railroadmen's Building and Savings Association of Indianapolis, representing six hundred ($600.00) dollars par value, together with accumulated dividends thereon; that on or about the 26th day of August, 1932, said corporation by and through its officers and directors and agents, as part of the issue and sale of its capital stock, induced the relatrix to exchange said Building and Savings stock for Certificate No. 11 representing twenty-four (24) shares of Class B stock of said corporation, and for certificate No. 3 representing twelve (12) shares of Class A stock of said corporation, when neither of said classes of stock were registered or qualified by the Indiana Securities Commission as required by law, and said exchange was made by this relatrix with the distinct understanding and representation that said corporation would hold said Building and Savings stock in trust for said relatrix until such time as said Investment Management, Inc., was being operated on a paying basis, and, in event said Investment Management, Inc., was not placed upon such paying basis, said stock in said association would be returned to said relatrix.

"That as a matter of fact said Investment Management, Inc., never was operated upon a paying basis, and in December, 1932, it was declared insolvent and a receiver therefor was appointed.

"That in compliance with section 5024; Burns' 1926, this relatrix, within a period of two years from such exchange, has elected to void the sale or exchange because it was made in violation of the provisions of said 'Blue Sky Law' in that said stock was never registered or qualified as required by law; and that she has made a tender back of the securities so received through said exchange and has demanded the return of the purchase price, viz., her stock in said Railroadmen's Building and Savings Association or the equivalent thereof in lawful money, which tender and demand have been refused; that said relatrix has not refused or failed at any time to accept any voluntary offer of the defendants or any of them to take back the securities in question and to refund the full amount paid by said relatrix together with interest."

The prayer of the complaint was "for the return of the purchase price, to wit, Railroadmen's Building and Savings Association stock in the par amount of six hundred ($600.00) dollars and/or damages in the amount of six hundred ($600.00) dollars, together with interest and costs and reasonable attorney's fees".

As an exhibit to the complaint there was filed a copy of said "Blue Sky Bond"...