Industrial Machinery Co. v. Roberts

• Decision Date: 01 April 1947
• Docket Number: 28248.
• Citation: 72 N.E.2d 223,225 Ind. 1
• Parties: INDUSTRIAL MACHINERY CO., Inc., v. ROBERTS.
• Court: Indiana Supreme Court

72 N.E.2d 223

225 Ind. 1

INDUSTRIAL MACHINERY CO., Inc., v. ROBERTS.

No. 28248.

Supreme Court of Indiana

April 1, 1947

Appeal from Superior Court, Marion County; Judson L Stark, judge.

Barnard Stroyman and James A. Ross, both of Indianapolis (Ross McCord, Ice & Miller, of Indianapolis, of counsel), for appellant.

William E. Reiley, Ruckelshaus & Ruckelshaus and John C O'Connor, all of Indianapolis, and Sidney A. Hellenbrand of New York City, for appellee.

STARR Judge.

This is an appeal from an interlocutory order appointing a receiver pendente lite without notice.The complaint is in two paragraphs and is too long to be set out in this opinion.It purports to be for an 'accounting, a restraining order, and a receiver.'This complaint which is verified contains many conclusions of law, matters of evidence and allegations based on information and belief.We recognize the rule that in an appeal of this kind the sufficiency of the complaint to withstand demurrer will not be tested, Hawkins v. Aldridge,1937, 211 Ind. 332, 7 N.E.2d 34, 109 A.L.R. 1205, but we have had great difficulty in attempting to determine upon what theory this action is brought.

From all the allegations in this complaint, both proper and improper, it would appear that the appellant, which is an Indiana corporation, entered into a contract with the War Assets Corporation of Canada for the purchase of 3,105 motor vehicles at $750 per vehicle; that thereafter the appellant entered into a written contract with the appellee wherein the appellant agreed to pay the appellee the sum of $144.50 for each of the vehicle units which the appellee as broker caused to be sold to and paid for by the defendant, Industry Tools, Inc., a corporation; that in pursuance of said brokerage agreement the appellee did obtain said purchaser who entered into a written agreement with the appellant for the purchase of the property; in said purchase agreement the purchaser agreed to pay $1,100 for each of the vehicles and the parties in the agreement recognized the appellee as the agent who was instrumental in bringing about the sale; that the contract of purchase provided that as the purchaser received the goods he would deposit the purchase price in the Riggs National Bank of Washington, D. C. and it was agreed that said bank should, for each $1,100 received, remit $607.50 to the War Assets Corporation of Canada, deposit the balance of $492.50 to the credit of the appellant from which said bank should deduct the commission of the appellee in the amount of $144.50; that by said contract of purchase the appellant was to and did receive as part of said purchase price $50,000 upon its execution and was to receive $400,000 on or before June 10, 1946, and the balance was to be paid in five installments; that at the time the contract of purchase was executed the parties thereto substituted the National Metropolitan Bank of Washington, D. C. as the disbursing agent and that thereupon said brokerage agreement and contract of purchase were turned over to said disbursing bank; that the initial payment of $50,000 was paid to appellant and deposited in the bank by appellant in its own name and its own credit; that thereafter on June 10, 1946, the appellant received $400,000 on the purchase price and again on July 15, 1946, the sum of $171,600; that the last mentioned payment was made by the defendantHemisphere Trading Corporation to whom said contract of purchase had been assigned by said Industry Tools, Inc., which assignment was made through the connivance of the parties thereto for the purpose of defrauding the appellee; that neither of the last mentioned payments was deposited with the bank as disbursing agent but was paid direct to the appellant; that prior to the last two mentioned payments the appellant purported to terminate the contract of purchase with the Industry Tools, Inc., on account of the failure of said purchaser to carry out its agreement, this appellee alleges was fraudulent and that in truth said contract was not terminated; said complaint also alleges that there was a fraudulent assignment of appellant's contract with the War Assets Corporation of Canada to the defendantD. F. G. Trading Corporation, a Michigan corporation,...