Lilly v. The City of Indianapolis

• Decision Date: 09 March 1898
• Docket Number: 18,019
• Citation: 49 N.E. 887,149 Ind. 648
• Parties: Lilly et al. v. The City of Indianapolis
• Court: Indiana Supreme Court

49 N.E. 887

149 Ind. 648

Lilly et al. v. The City of Indianapolis

No. 18,019

Supreme Court of Indiana

March 9, 1898

From the Marion Circuit Court.

Reversed.

Albert Baker, Edward Daniels, Ferdinand Winter and Woollen &amp Woollen, for appellants.

J. B Curtis, J. S. Duncan, C. W. Smith, H. H. Hornbrook and Ayers & Jones, for appellee.

OPINION

Jordan, J.

The city of Indianapolis sued in the lower court, and the relief which she sought under her complaint in the action was an accounting to her from each and all of the defendants for certain sums of money which it was charged had been converted, which, in the aggregate, as alleged, amounted to $ 20,000.00, and judgment was demanded accordingly. The parties made defendants to the action were Eli Lilly, William Fortune, and the Commercial Club of Indianapolis; also John W. Murphy, August Keifer, Hugh H. Hanna, James L. Keach Albert Sahm, Michael Steinhauer and Benjamin C. Shaw, these last named defendants having constituted the members of the encampment committee, created by said city, and invested with the duty and power of receiving and disbursing the money appropriated by said city of Indianapolis to defray the legitimate expenses that might be incurred by reason of the holding therein of the National Encampment of the Grand Army of the Republic in the year of 1893. The defendants, Lilly Fortune, and the Commercial Club separately demurred to the complaint for insufficiency of facts. The defendants who, as stated, composed the encampment committee, jointly demurred for a like reason. The court overruled the demurrers of Lilly and Fortune, and they each excepted. The demurrers of the Commercial Club, and the other defendants were sustained, and judgment was rendered in favor of all the last-mentioned defendants against the city on their demurrers to the complaint. The defendants Fortune and Lilly each filed their separate answers to the complaint in five paragraphs, setting up affirmative matter as a defense. The plaintiff demurred to each paragraph of these answers, which demurrers the court sustained, over the exceptions of said defendants. Subsequently, upon the complaint of Lilly and Fortune, the court ordered that the Commercial Club be again made a party to the action, and be required to interplead with the city of Indianapolis in respect to the claim which the latter made against Lilly and Fortune for the recovery of the money, as in the complaint set up and alleged. In obedience to this order of the court, the Commercial Club appeared by its attorneys, and filed a cross-complaint, making the city of Indianapolis, Lilly, and Fortune parties defendant thereto, and the club asserted in its cross-complaint the right to recover the money from Lilly and Fortune claimed by the city. The city of Indianapolis and Fortune and Lilly separately demurred to the cross-complaint for insufficiency of facts, and these demurrers were sustained; and, said club electing to stand by its cross-complaint, judgment was rendered against it in favor of each of the demurrants. Thereafter Fortune and Lilly both refused to plead further, and each elected to abide by his answer, thereupon the court rendered its judgment against them in favor of the city of Indianapolis for $ 5,537.50, being the principal and interest of the money, to wit, $ 5,000.00, which the plaintiff alleged these defendants had wrongfully converted. From this judgment Lilly and Fortune have appealed to this court, and their separate assignment of errors are based on the rulings of the court in holding the complaint sufficient on demurrer as against them, and in sustaining the demurrers of the appellee, the city of Indianapolis, to their separate answers. The Commercial Club has also assigned cross-errors, based on the court's action in sustaining the demurrers of the appellants Lilly and Fortune, and that of the city of Indianapolis, to its cross-complaint, and it prays that the judgment rendered against it in favor of these parties be reversed. Appellants Lilly and Fortune each contend that the complaint is not sufficient in facts to warrant the judgment rendered against them in favor of the appellee. The complaint is quite lengthy and is replete with copies of papers and documents filed with, and designed to be made parts thereof. The following are substantially the essential facts as disclosed by the complaint and its exhibits: The appellee, city of Indianapolis, is a municipal corporation, and the Commercial Club is a private incorporated body, situated in said city, and its primary object is to promote the business and commercial interests of such city. During the years 1892, 1893, and 1894, appellant Eli Lilly was the president of this club, and his co-appellant, William Fortune, was its secretary. It appears that through the efforts made and steps taken by this club, the Grand Army of the Republic was induced to select the city of Indianapolis as the place for holding its national encampment in 1893. Among the several standing committees of the said Commercial Club, was one which was denominated and styled the "Committee on Assemblages," and it was charged with the duty of securing political parties and other organizations to hold their various conventions or meetings at the city of Indianapolis, and it was authorized to take the necessary steps to provide for the holding of such conventions, and for the entertainment of the visitors and members attending the same. By reason of the committee on assemblages being charged with this duty, it appears to have taken the initiatory steps in regard to formulating plans and measures designed to carry into effect the entertainment of the visitors and the members of the Grand Army Encampment during the time of its session at said city. Consequently, in September, 1892, this committee adopted a resolution requesting the appellant Lilly to become the chairman of a citizens' executive committee, which it was designed should assume the responsibility of carrying out the means and measures provided relative to said encampment. In pursuance of this request, Lilly seems to have formulated a general plan for an organization of the citizens of the city, and on the 12th day of December, 1892, his plan or scheme pertaining to such purpose was submitted to a mass meeting composed of citizens of Indianapolis, and the plan prepared by him was approved and adopted by said meeting, and an executive board or committee was created, and its officers were to consist of a chairman, vice chairman, executive director, secretary, and treasurer. Lilly was selected as its chairman, Fortune as executive director, and Albert Gall as its treasurer. Other committees were appointed, among which was one on finance, and another on legislative matters, etc. Prior to November 1, 1891, the Commercial Club's committee on assemblages had received from subscriptions on the part of citizens certain sums of money donated as a fund to aid it in its proposed work, and after that date it received additional subscriptions to its fund. Ten per cent. of the latter was payable without any conditions, and the remainder was payable contingently in the event that either the National Convention of the Democratic party, in 1892, or the G. A. R. Encampment of 1893, be held at Indianapolis. Subsequently, a third subscription to the fund of the assemblage committee was obtained, which was to be applied to the expenses of the Twenty-seventh National Encampment of the G. A. R., to be held in Indianapolis in September, 1893. The complaint alleges that the total sum collected and received by the Commercial Club, through its committee on assemblages, upon these several subscriptions, amounted to over $ 50,000.00, of which $ 22,396.22 was paid and collected on the two last-mentioned subscriptions. On March 20, 1893, the common council of the city of Indianapolis, having been invested with special authority by the legislature to that effect, adopted an ordinance, which was approved by the mayor, whereby $ 75,000.00 was appropriated out of the money in the treasury of the city for the purpose of defraying the legitimate expenses arising out of the preparation for the reception and entertainment of the Twenty-seventh National Encampment of the Grand Army, and it was provided in the ordinance that the money so appropriated was to be paid out of the city treasury on warrants drawn by the city comptroller in favor of a committee composed of seven citizens, denominated the "Encampment Committee," which committee the ordinance created, and designated the persons who were to constitute the same; these being the defendants heretofore mentioned. This committee was vested with the power of disbursing the money appropriated by the city under this ordinance, and was charged with the duty of taking vouchers, showing the purpose to which it was applied. It is alleged in the complaint that, before the adoption of this ordinance, at a meeting of the finance committee of the common council, appellants, Lilly and Fortune, as president and secretary of the Commercial Club, and as chairman and executive director of the citizens executive board, appeared before said finance committee, and stated to its members in substance, that it would be impossible to secure by private subscriptions a sum sufficient for the payment of the expenses of the encampment, and that the city ought to make an appropriation; that if it would do so, no part of such appropriation would be used or drawn upon for the encampment expenses until the whole amount subscribed or to be subscribed to the fund of the committee on assemblages had been exhausted; and that the city's appropriation should only be drawn upon to make up any deficiency existing after said committee's fund had been...