Flying Squadron Foundation v. Crippen

Citation169 N.E. 843,201 Ind. 482
Decision Date04 February 1930
Docket Number25,869
PartiesFlying Squadron Foundation et al. v. Crippen et al
CourtSupreme Court of Indiana

1. APPEAL---Court will not Weigh Evidence---Even in Equity Case---When No Conflict.---The Supreme Court will not weigh the evidence, even in an equity case, as required by 723 Burns 1926, if it is apparent from the briefs that there is no conflict in the evidence, and there is evidence sufficient to sustain the finding of the court. p. 508.

2. APPEAL---Finding Not Sustained by Evidence---Judgment Ordinarily Reversed---Court May Enter Another Judgment.---Where there is no evidence to sustain the trial court's finding, the judgment will ordinarily be reversed, but if the evidence is clear and not conflicting the court may enter such other judgment or decree as may seem right and proper on the whole case. p. 508.

3. PLEADING---Allegation that Defendant Claims Interest in Property in Controversy---No Issue Can be Formed Thereon---Denial Amounts to Disclaimer.---In a suit to have a trust decreed in certain corporate stock, an allegation in a counterclaim that another defendant claimed some interest in the stock, but without any allegation that such defendant had any interest in the action or the stock or that it had actual or constructive possession or control of such stock, was insufficient on which to form an issue by a general denial since the allegation was a mere statement that the defendant claimed an interest therein, and a denial of that statement would amount to nothing more than a disclaimer of interest in the controversy. p. 508.

4. PLEADING---Special Answer to Counterclaim---Alleging that Counterclaimant Never had Any Interest in Matter in Controversy---Insuffi- cient to Form an Issue.---In a suit to have a trust decreed in certain corporate stock, a special answer to a counterclaim therein alleging that counterclaimant never had any right, title or interest in such stock was insufficient to form an issue on such counterclaim, for the reason that a special answer to a complaint or counterclaim admits the allegations of such pleading are well pleaded and sufficient to sustain a judgment for the plaintiff or counterclaimant were it not for the facts specially pleaded in the answer. p. 509.

5. PLEADING---Office of Special Answer---To Avoid Plaintiff's Cause of Action.---The office of a special answer is to avoid plaintiff's right as set up in his cause of action, and not to destroy it. p. 509.

6. PLEADING---Special Answer Seeking to Destroy Plaintiff's Cause of Action---Evidence Admissible Thereunder.---A special answer which seeks to destroy plaintiff's cause of action is nothing more nor less than an argumentative denial, and all evidence competent under such special answer is competent under the issue formed by a paragraph of general denial. p 509.

7. TRIAL---Ultimate Legal Effect of Letters and Telegrams Soliciting Donations---Question of Law for the Court.---In a suit to have a trust decreed in certain corporate stock, in which one of the defendants filed a counterclaim claiming the ownership of the stock because the funds used to pay for the same were solicited from former contributors to said cross-complainant, the ultimate legal effect of the letters and telegrams sent to such contributors and the subsequent action of its officers and directors relative to the contributions, made in response to such letters and telegrams, was a question of law for the court. p. 511.

8. GIFTS---Letters and Telegrams Soliciting Donations---Form Basis and Prescribe Limitations of Gifts in Response Thereto.---Letters and telegrams soliciting donations to be used in the payment of pressing financial obligations of a reform organization so as to continue the publication of a newspaper devoted to the purposes of the organiza- tion, formed the basis and prescribed the limitations of the several gifts made in response to such letters and telegrams. p. 511.

9. APPEAL---Weighing Evidence under 723 Burns 1926---Finding Against Appellants Supported by Evidence---Warranted Denial of Requests to Weigh Evidence.---In a suit in equity to have a trust decreed in certain corporate stock, wherein defendants filed cross-complaints claiming to be the equitable owners of such stock, the evidence fairly supported the finding of the trial court against the cross-complainants, and, therefore, warranted the denial of cross-complainants' request for the appellate tribunal to weigh the evidence, under 723 Burns 1926. p. 515.

10. GIFTS---Agreement or Arrangement Among Solicitors of Gifts---Ineffective to Change Use Intended.---Any agreement arrangement or scheme among the persons sending out letters and telegrams soliciting gifts of money to pay the indebtedness of a corporation in which they were interested, either previous to sending the letters and telegrams or thereafter, can have no effect to modify or change the intended use (as disclosed by the letters and telegrams) to which the gifts were to be put. p. 516.

11. TRUSTS---Money Donated for Payment of Debts of Corporation---Transmitted to President---Evidence Held to Sustain Finding that He was Not the Owner.---In a suit in equity to have a trust decreed in certain corporate stock, wherein an executor filed a cross-complaint claiming that his testator was the absolute owner of the money which paid certain debts of the corporation, of which he was president, and, in consideration thereof, said stock was issued to him as trustee, evidence held to support a finding that he was not such owner, where the evidence showed that the money was donated to him as an officer of the corporation for use in paying the debts thereof, and was not given to him as an individual. p. 517.

12. APPEAL---Review---Admission of Record of Corporate Proceedings---Objection by Party who Filed Disclaimer---Not Available Error.---In a suit to have a trust decreed in certain corporate stock issued to the largest stockholder as trustee, wherein one of the defendants filed a special answer amounting to a disclaimer of any interest in said stock, the admission in evidence of the record of the meeting of the board of directors concerning the manner of issuing the stock in return for money contributed by friends of the corporation was not available error to said cross-complainant, as it had no right to object to the introduction of any evidence. p. 520.

13. TRIAL---Admission of Evidence Not Beyond the Issues in Specific Case.---In the trial of a suit to have a trust decreed in certain corporate stock issued to the president and largest stockholder as trustee, where it was shown that said stock was issued to said president in return for funds raised by him by soliciting donations from personal friends and others to pay pressing debts of the corporation in order to continue the publication of a newspaper devoted to the purposes of the organization, the admission of evidence to the effect that the larger part of the corporate indebtedness was occasioned by the publication of said paper was not beyond the issues, as there was an issue as to whether the fund so raised was given expressly for the payment of the debts of the corporation and also as to whether the fund was equal to the debts of the corporation. p. 520.

14. GIFTS---Made for a Specific Purpose---Donor Not Permitted to Contradict Purpose After Money Received and Spent.---The donor of money, given in response to a request for donations for the purpose of paying pressing indebtedness of a corporation in which the donee was interested, after the money was received and spent in accordance with the request, could not be heard to contradict the purpose for which the money was to be used, as stated in the request. p. 522.

15. TRUSTS---Implied Trust in Gifts---Necessary Requisites.---To constitute an "implied trust" in a gift, the acts and conduct of the settlor on which the trust is based must be unequivocal, the beneficiary must be unequivocally identified, and the purpose of the trust must be established by unequivocal implications from the donor's acts and conduct. p. 524.

16. TRUSTS---Implied Trust in Gifts---Established by Letters and Telegrams Soliciting Donations---Trust Unaffected by Change of Form of Property Donated.---Letters and telegrams soliciting donations to a fund to pay pressing obligations of a corporation in which the solicitor was interested, by their terms established an implied trust in the solicitor for the benefit of the corporation, and the fact that the funds donated in response to such letters and telegrams were transmuted into the stock of the corporation and possession thereof given to the solicitor did not affect the trust. p. 525.

From Marion Probate Court (58-18, 402); Mahlon E. Bash, Judge.

Suit by Clarence E. Crippen against Duane D. Jacobs as executor of the will of J. Frank Hanly, deceased, the Flying Squadron Foundation, the Enquirer Printing and Publishing Company and others, in which the named defendants and others filed separate cross-complaints. From a decree in favor of the publishing company and the executor, the Flying Squadron Foundation and others appealed. (Transferred from the Appellate Court under cl. 2, § 1357 Burns 1926.)

Affirmed as to all parties except the executor, the judgment in his favor being reversed.

Bingham & Bingham, for appellants.

Frederick E. Matson, Solon J. Carter, James A. Ross, Robert D. McCord, Adolph Schreiber, Austin V. Clifford, James W. Fesler, Harvey J. Elam and Howard S. Young, for appellees.


Travis, C. J.

This is a suit in equity by appellee Clarence E. Crippen against appellants and certain of the appellees to decree a trust in certain capital stock of appellee Enquirer Printing and Publishing Company (a corporation), to appoint a trustee for...

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