Brannan v. Kelley, 12312.
| Decision Date | 05 June 1925 |
| Docket Number | No. 12312.,12312. |
| Parties | BRANNAN v. KELLEY et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Lake County; Virgil S. Reiter, Judge.
Action by George E. Brannan against James J. Kelley and others. Judgment for defendants, and plaintiff appeals. Affirmed.
McMahon & Conroy, of Hammond, for appellant.
Gavit, Hall, Smith & Gavit, of Whiting, for appellees.
This appeal is prosecuted from a judgment of the Lake superior court, room 1, sustaining separate demurrers of Kelley and Semmes, and of the Gary Heights Realty Company, to appellant's amended second paragraph of complaint, all other paragraphs having been withdrawn.
The said paragraph of complaint sought to base a cause of action upon the following facts alleged therein, viz.: Early in the year 1911, one George Earl was the owner of a certain 40 acres of land, particularly described, lying near the city of Gary. The appellees Kelley and Semmes had an option on said land by and through which they controlled the sale thereof. They were not in a position to purchase said land themselves, so in January, 1911, they began to talk to a number of persons in regard to said land, trying to interest such persons in the matter of forming a corporation which, when formed, should become the purchaser of said land, should lay out and plat the same as an addition to the city of Gary, and then sell the lots so platted and laid out. That they told and informed the persons whom they were trying to interest in said matter that the purchase price of said land was $40,000, and that no commission was to be paid to them, by said Earl, for selling said land. That, acting upon the statements and representations so made the appellant, the said appellees, and certain other named persons, who had also been solicited, and to whom the said statements and representations as above had also been made, proceeded to and did form and organize a corporation under the laws of the state of Indiana, under the name of the Gary Heights Realty Company. That said corporation proceeded at once to purchase said land from said Earl, at and for the sum and price of $40,000, paying therefor the sum of $15,000 in cash, and executing its note for, and a mortgage on, said premises to secure the balance of said purchase price. That the representations of said appellees that said sale price was net, and that they were to receive no commission or profit thereon, were false, and that said appellees received from said Earl a secret profit or commission on said sale in the sum of $8,000. That the appellant is and was one of the incorporators of said company, and the owner of 40 shares of the par value of $4,000 of the capital stock thereof. That $1,500 of said $8,000 belongs to the appellant as such stockholder, “or the $8,000 belongs to said corporation, Gary Heights Realty Company.” That said appellees knowingly and willfully represented to appellant, and to said investors, and to said corporation, that the actual price of said real estate was $40,000, and that they were to receive no commission. That said appellees, for and on behalf of said corporation, purchased said land from said Earl at and for the sum of $40,000. That before the instituting of this action demand was made upon the said corporation “to bring and maintain this action to recover said secret profit of $8,000.” That said corporation has failed, neglected, and refused, and still “refuses to institute said action, and said corporation is made a party defendant as a party plaintiff herein.” There was a prayer for judgment in the sum of $8,000, and that the court should determine as to whether said sum should be distributed to said investors, or should be paid to said corporation.
[1] This complaint seems not to have been drawn upon any definite or well-defined theory, as we shall hereafter more fully notice. The demurrer thereto having been sustained, we, in our consideration of the sufficiency of said pleading, are not limited to any alleged deficiencies specified in the memoranda filed with said demurrers, but, if said pleading was bad from any cause, there was no error in sustaining said demurrers. State ex rel. v. Palmer, 184 Ind. 7, 110 N. E. 213;Poer v. State ex rel. Hinshaw, 188 Ind. 55, 121 N. E. 83;State ex rel. v. Sizelove (Ind. App.) 137 N. E. 616.
[2][3][4] Considering said pleading first upon theory of a suit by the appellant, as being the real party in interest, as being entitled to recover of and from the individual appellees a proportionate part of said sum of $8,000, his part being in such proportion as the number of shares of stock owned by him bore to the total amount of stock issued, the said pleading is fatally defective.
Conceding that said appellees received and still retain said sum of money, as claimed, and conceding also that it was obtained under the circumstances claimed, and further conceding that the said money so received by said appellees does not, in equity and good conscience belong to them, yet, the question remains, Is the appellant, in his own right, legally entitled to recover all or any portion of said money to his own use?
It is alleged in the pleading in question that said individual appellee...
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