Indiana Cancer Soc., Inc. v. Marion County Cancer Soc., Inc., 29808
| Decision Date | 04 November 1959 |
| Docket Number | No. 29808,29808 |
| Parties | INDIANA CANCER SOCIETY, INC., Appellant, v. MARION COUNTY CANCER SOCIETY, INC., Appellee. |
| Court | Indiana Supreme Court |
William M. Evans, Lewis C. Bose, and James Seidensticker, Jr., of Cook, Bose, Buchanan & Evans, Indianapolis, for appellant.
Raymond W. Hilgedag, James E. Noland, Indianapolis, for appellee.
This is an appeal from an interlocutory order of the lower court granting in part but refusing to grant in toto a temporary injunction enjoining appellee from disposing of all of its money or property pending final disposition of appellant's action for an accounting, etc., and also refusing to appoint a receiver.
According to appellant's complaint, appellant, hereinafter called the Indiana Society, is an Indiana corporation organized to collect and disseminate information concerning cancer, for research into its cause and cure, and to raise and expend funds for such purposes. Appellee, hereinafter called Marion County Cancer, Inc., is an Indiana corporation organized in 1953 for purpose of carrying out the program of the American Cancer Society, Inc., for the control of cancer in Marion County, Indiana, in cooperation with the American Cancer Society and its divisions of affiliated units, for encouraging cancer research, and obtaining funds therefor.
It further appears that appellant Indiana Society is an agent of the American Cancer Society, Inc., and it is alleged that from 1946 to 1959 appellee Marion County Cancer, Inc., or its predecessor, an unincorporated association known as 'The Marion County Division, Indiana Cancer Society, Inc.,' operated in Marion County, Indiana, as the duly authorized and affiliated agent of the Indiana Society. That said unincorporated association received a charter as the Marion County unit of the Indiana Society. That in October 1953 upon the incorporation of Marion County Cancer, Inc., the latter by resolution acquired the assets and assumed the liabilities of said predecessor unincorporated association including its rights and liabilities under its aforesaid charter.
Appellant Indiana Society's complaint is in two paragraphs, the first paragraph of which alleges that appellant Indiana Society adopted a policy in 1958 to disassociate itself with United Funds and Community Chests and that units should in 1960 conduct their independent fund raising drives; that appellee Marion County Cancer, Inc., the agent of the Indiana Society, although notified relative thereto, violated said policy by obligating itself not to conduct an independent drive in 1960.
The second paragraph of complaint alleges that appellant Indiana Society on or before the year 1946 had adopted a policy as to distribution of contributions according to which 40 per cent. of such amounts would be distributed to the Marion County Society, 40 per cent. to the American Cancer Society, and 20 per cent. to appellant Indiana Society. That a written contract between appellant Indiana Society and appellee Marion County Cancer, Inc.'s predecessor was executed in 1951 embodying the 40-40-20 terms of said policy. That appellee Marion County Cancer, Inc., in the calendar year of 1958 violated said policy and contract by failing to remit in accordance therewith.
This cause was submitted by appellant Indiana Society on the temporary injunction hearing below solely on the basis of its verified complaint in two paragraphs without other evidence. Appellee offered several witnesses, but their testimony is not pointed out as pertinent to this appeal.
The lower court which had previously entered a restraining order without notice, after the hearing dissolved the same as to appellee Marion County Cancer, Inc.'s checking account, but retained in effect the restraining order as to the savings account and the agency agreement with the American Fletcher National Bank, which assets were to be frozen until the final hearing. The court further ordered 60 per cent. of the donations received from the United...
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