Graham Ice Cream Company v. Petros
| Decision Date | 22 May 1934 |
| Docket Number | 28652 |
| Citation | 254 N.W. 869,127 Neb. 172 |
| Parties | GRAHAM ICE CREAM COMPANY, APPELLANT, v. GEORGE PETROS ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: FRANCIS M DINEEN, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. Estoppel means the preclusion of a person from asserting a fact, by previous conduct inconsistent therewith, on his own part or the part of those under whom he claims, or by an adjudication upon his rights which he cannot be allowed to call in question, and where the evidence fails to disclose that the person sought to be estopped conducted himself with the intention of influencing the conduct of another, or with reason to believe his conduct would be to influence the other's conduct, inconsistently with the evidence he proposes to give, then he has failed to establish estoppel.
2. " Indicia of ownership" is synonymous with circumstantial evidence, denotes facts which give rise to inferences, rather than the inferences themselves; however numerous indicia may be, they only show that a thing may be, not that it has been.
3. A power of attorney must be construed in accordance with the rules for the interpretation of written contracts generally.
4. Where the intention of the parties appears from the language employed in the power of attorney, that intention should prevail, and a strained interpretation should never be given to defeat it. The objects of the parties must always be kept in view, and where the language will permit that conclusion must be carried out that will support instead of defeat the purpose of the instrument.
5. When an action in equity is appealed, it is the duty of this court to try the issues de novo and to reach an independent conclusion without reference to the findings of the district court. Comp. St. 1929, § 20-1925. But when the evidence on material issues so conflicts that it cannot be reconciled " this court will consider the fact that the trial court observed the witnesses and their manner of testifying, and must have accepted one version of the facts rather than the opposite." Shafer v. Beatrice State Bank, 99 Neb. 317, 156 N.W. 632. See Greusel v. Payne, 107 Neb. 84; 185 N.W. 336; Jones v. Dooley, 107 Neb. 162, 185 N.W. 307.
Appeal from District Court, Douglas County; Dineen, Judge.
Action by the Graham Ice Cream Company against George Petros and others. From a decree for defendants, plaintiff appeals.
Affirmed.
Hotz & Hotz, for appellant.
Ziegler & Dunn, contra.
Heard before GOOD and EBERLY, JJ., and MESSMORE, RAPER and YEAGER, District Judges.
This is an appeal from the district court for Douglas county wherein that court found for the defendants below, appellees herein.
The petition of plaintiff, appellant herein, alleges that on November 30, 1927, the district court for Douglas county entered a judgment in favor of plaintiff against George Petros, one of the appellees herein, which judgment, with interest, on October 6, 1931, the date of filing said petition in said court, amounted to $ 4,221.18; alleges that an execution had been issued repeatedly on said judgment and returned unsatisfied, and that the said George Petros claims to have no property of any nature or kind upon which levy may be made for the satisfaction of said judgment; alleges that plaintiff has exhausted all its legal remedies and there exists no speedy and adequate remedy at law open to it for the satisfaction of said judgment; alleges that appellee, George Petros, in order to hinder and delay the collection of said judgment against him, formed a corporation known as the "Ambassador Cafe" under the laws of Nebraska in July, 1931, and that defendants placed all the capital stock of said corporation in the name of Andrew Petros, so that on the face of the records of said corporation the said Andrew Petros appears to own said cafe and the said George Petros appears merely as an employee therein at a salary of $ 50 a week; that the said George Petros devotes his sole and exclusive time to the management and operation of said cafe, signs all the checks as president and upon whose signature alone the bank transacts business with said corporation, receives and receipts for all property of the corporation, hires and discharges all help, and otherwise runs and operates said business as his own, because in truth and in fact it is his own, and the name of Andrew Petros is supplied by the said George Petros merely as a hindrance set up by the said George Petros to prevent plaintiff from collecting its judgment against the stock of said cafe, all of which is owned by the said George Petros, and the said Andrew Petros has unlawfully and illegally permitted his name to be used for the purpose of aiding and abetting the said George Petros in fraudulently preventing the collection of said judgment; further alleges that, while certain payments might have been made by said cafe to the said Andrew Petros, these were repayments for money loaned to George Petros and not to said cafe, and that all of such moneys have been paid out of the assets of said cafe under the direction and supervision of the said George Petros, with the result that the said Andrew Petros has no right, title or interest in said business nor in the capital stock thereof.
Plaintiff prays that the court enter a decree vacating and setting aside the stock of said Ambassador Cafe in the name of Andrew Petros and transferring same to George Petros, and that the latter be decreed to be the rightful owner thereof, rather than the said Andrew Petros, and that plaintiff have the proper decree enabling it to make proper levy for the satisfaction of its judgment against the said George Petros and all of the capital stock of said cafe and against the said Andrew Petros personally in the event he fails, neglects or refuses to make transfer or otherwise abide by the decree of the court.
To this petition the appellees George Petros and the Ambassador Cafe filed their answer which, for the purpose of this opinion, may be briefly stated as follows: Admit that plaintiff obtained a judgment against George Petros; that an execution has been issued on said judgment and returned unsatisfied; deny each and every other allegation in said petition; admit that George Petros devotes his time to said Ambassador Cafe and acts as general manager in operating its business; admits his relationship to Andrew Petros as a brother.
To the petition Andrew Petros, appellee, has filed his amended answer in which he renews his objections to the jurisdiction of the court under a special appearance, wherein the ruling was adverse to him, alleging as his principal grounds in said objections to jurisdiction that the proceeding in attachment and garnishment and service on him by publication were without force and effect, for the reason that no sufficient affidavit of plaintiff, as required by law, was filed before the issuance of the order of attachment, and that the affidavit filed by plaintiff for said order of attachment was insufficient to authorize the issuance of such writ, in that plaintiff did not set forth or allege that the said Andrew Petros was indebted to plaintiff in any sum whatever or that plaintiff was entitled to recover any amount against him, and failed to set forth any statutory ground authorizing the issuance of the order of attachment against him, and for the reasons above set out there was no basis upon which service by publication could be obtained against him; alleges that he is not informed of the judgment obtained by plaintiff against the said George Petros; and denies each and every allegation contained in said petition; also alleges the statement of facts upon which he contends for the defense of estoppel.
To the answers of defendants, plaintiff replied, denying the allegations of the respective answers, denying the existence of the defense of estoppel, and alleging that all of the defendants are estopped to deny the ownership of the Ambassador Cafe, unincorporated, and the capital stock of the incorporated company as being anything but the property of the said George Petros, and alleging other facts which plaintiff claims constitute an estoppel.
The bill of exceptions contains a great amount of documentary evidence, and details an explanation of the business of the Ambassador Cafe, which, for the purposes of this opinion, may be summarized as follows: George Petros was engaged in managing the Valley of Sweets in the Henshaw Hotel in Omaha in the years 1920 and 1921, during which time the ice cream for which judgment was obtained against him on November 30 1927, was sold him by appellant. Subsequent to that time he went to Chicago for a year or so, then returned to Omaha, working in different cafes, one of them owned by a cousin, Louis Petros, up to about the time of the opening of the Ambassador Cafe. Just before this a conference was held by Louis Petros, George Petros, and Andrew Petros, his brother, wherein it was agreed that Andrew Petros, a resident of Chicago and a practicing dentist, and also in control of other businesses there, was to advance about $ 800, and that he had advanced about $ 1,700 on the 26th of October, 1929, when the cafe was opened and while it was yet unincorporated. From the time of the opening of the cafe George Petros did its banking business with the South Omaha State Bank for about a year or so, then transferred the account to the Union State Bank until it closed, then transacted business with the First National Bank, and later returned to the Union State Bank. The cafe was incorporated for $ 25,000; George Petros taking no part in the incorporation. The evidence does not clearly disclose that in June, 1931, when the...
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