Hagenbeck v. Hagenbeck Zoological Arena Co.

• Decision Date: 23 December 1893
• Citation: 59 F. 14
• Parties: HAGENBECK v. HAGENBECK ZOOLOGICAL ARENA CO. et al.
• Court: U.S. District Court — Northern District of Illinois

59 F. 14

HAGENBECK v. HAGENBECK ZOOLOGICAL ARENA CO. et al.

United States Circuit Court, N.D. Illinois.

December 23, 1893

Vocke &amp Healy, for complainant.

Moran Kraus, Mayer & Stein, for defendants.

GROSSCUP District Judge.

This is a motion for the appointment of a receiver. The bill and answer, taken together, show that certain of the defendants who subsequently incorporated the Hagenbeck Zoological Arena Company, procured a concession from the Columbian Exposition under which, upon payment of 25 per cent. of the gross receipts, they and their successors were permitted to exhibt on the grounds of the Exposition, a show of trained animals. Subsequently, an agreement was entered into between them and Carl Hagenbeck, a citizen of Prussia, by the terms of which the defendants were to build and maintain, on the grounds of the Exposition, a suitable arena, and conduct and maintain therein a show of wild animals, and the complainant was to bring to the Exposition his trained animals, and supervise them while here, for which he was to receive, after payment of the stipulated amount to the Exposition Company, one-half of the remaining gross receipts of the show, the balance to be retained by the defendants. In accordance with this agreement, the particular terms of which are not specially important in this connection, Hagenbeck brought over his trained animals, and installed them in the arena provided by the Hagenbeck Zoological Arena Company. The show was conducted substantially as provided in the contract throughout the summer, and the defendants continued to turn over to the Exposition Company and Hagenbeck the stipulated gross receipts, until the early part of October, 1893, when, upon the pretext that the complainant had not complied fully with the terms of his agreement, the further turning over of the receipts was stopped. Thereafter there accumulated in the treasury of the company a large amount of money, which, under the terms of the contract, would have gone to the complainant, but was withheld, as the defendants say, to recoup them for damages growing out of the complainant's alleged failure to fully perform his contract. These alleged breaches are specifically set up in the bill and answers, together with other breaches alleged by the complainant to have been made by the defendants.

It is apparent from both the bill and answer that, independently of these claims for damages, there is no necessity for an accounting between the parties. The bill shows, and the answer admits, the exact amount of the gross receipts for the period covered, and there is no denial that, subject to the amount paid the Exposition Company, one-half of these are properly coming to the complainant, but for the damages arising from the breaches set forth. These damages are, however, unliquidated, and are in no sense the subject-matter of an accounting proper.

Neither is there, in my opinion, any showing that the corporation is insolvent. Some pretense is made that its assets will not be sufficient to meet its liabilities, including the alleged liability to its stockholders for the return of their subscriptions; but the credit of a stockholder, based upon his subscription, is not to be taken into account in determining the solvency of the corporation.

I am not able to find, upon the facts submitted in the bill and answer, that any partnership existed between the complainant and the defendants. What their liability in that respect to third parties would have been is of no consequence in this case. The evidence does not disclose that, as between themselves, there was any intention to create a partnership, or assume the obligations of such a relation.

The remaining and principal question is whether, under the relation existing, the defendants, from time to time, held one-half of the gross receipts of the show, less 25 per cent., in trust for the complainant, and, if so, what was the nature of the trust. It is plain that, unless...