"Plaintiff
complains of the defendant and says:
"1.
That at all times hereinafter stated the defendant is and was
a corporation duly incorporated and existing under and by
virtue of the laws of the state of Nebraska, with an alleged
capital stock of $ 60,000, divided into shares of $ 100 each
and engaged in the business of issuing contracts, copies of
which are hereto attached, and made a part of this petition,
and marked exhibits 'A' and 'B,' and in no
other.
"2.
That the incorporators were, and are, Fred Lilljeberg, John
C. Kay and John M. Doyle. That there has been issued by the
said corporation, approximately, 200 contracts,
the exact number being to this plaintiff unknown, a portion
of which were of the same form as exhibit 'A,' the
balance, being denominated a diamond contract, as exhibit
'C.'
"That
various persons purchased said contracts, their names being
unknown to this plaintiff, except as hereinafter set forth.
That the said Fred J. Lilljeberg, John M. Doyle, and John C.
Kay held the first nine contracts, and applied the first $
900 received by the said corporation to the payment thereof,
and that, thereafter, the tenth contract was paid by the
defendant to the aforesaid president, secretary and treasurer
thereof. That since the tenth contract was paid on or about
the day of , 1900, the said defendant has collected from the
said contract holders a large sum of money, the exact amount
being to this plaintiff unknown, and that, thereafter, to
wit, on or about the 1st of February, 1901, the president and
secretary of the defendant corporation attempted to sell and
transfer the corporation and contracts, privileges and
emoluments of the business and all rights and property
interests therein, whatsoever, to one W. S. McAuley, and
thereupon, pretended to resign their respective offices as
president and secretary to the board of directors, who failed
and refused to elect their successors, and have since refused
and failed so to do. That the holders of the said alleged
stock, if there be any, are to this plaintiff unknown. That,
at the time of the said pretended transfer and sale, the said
president and secretary had in their possession and under
their control the sum of $ 369 belonging to, and forming a
part of, the funds of the said defendant corporation, which
they, the said secretary and president, failed and neglected
to turn over to their alleged successor, or account for, but
proceeded to draw from the bank the said sum, and
appropriated the same to their own use and benefit, and have
ever since refused and failed to account for the same, to the
damage and prejudice of your petitioner. That since the
pretended transfer, this plaintiff and various holders of
contracts have paid to the said McAuley about $ 900, the exact amount being to this plaintiff unknown, who
received the said sum and holds the same for defendant's
use. That, according to the provisions of said contracts
shown in exhibits 'A' and 'B,' 80 per cent.
of all the funds received by the said corporation were to be
and remain the absolute property of the holders of said
contracts, and were to be applied in the retirement and
discharge of the said contracts, consecutively, and in the
order of their issue; said contract being the stock or shares
of defendant corporation.
"3.
The plaintiff avers, and charges the facts to be, that the
defendant corporation, and its above named officer, has
wholly failed to apply the funds received by it under the
provisions of the said contracts to the payment and discharge
of the contracts issued by said corporation, as provided by
its rules and articles.
"4.
The plaintiff further charges that he is the holder and owner
of contract number 35, being filed herewith, and marked
exhibit 'C,' and made a part of this petition, being
one of the 200 contracts issued as herein charged, and has
paid in to said company the sum of $ 80, and holds the said
contract which is fully paid up according to the provisions
thereof. That the money paid by the plaintiff to the
defendant, as aforesaid, constitutes a part of the funds
herein charged to have been misapplied or in the hands of the
pretended successor of the defendant corporation.
"5.
Plaintiff further charges that the defendant has ceased to do
business, has failed to elect officers or call an election
for that purpose, has misapplied the funds, and attempted to
convey all the corporate interests. All of which was done
contrary to the power and authority invested in the said
defendant corporation, and to the injury and damages of your
petitioner.
"6.
The plaintiff further alleges, and charges the facts to be,
that defendant corporation has never had an election, has
never issued certificates of stock other than the contracts
herein set forth, and that there has never been
an election of directors or officers, nor a legal adoption of
rules or by-laws by the said defendant, and that the said
president, secretary and treasurer have, at all times, acted
wholly without authority, as plaintiff verily believes.
"Whereupon,
the plaintiff prays the court to appoint a receiver to take
charge and control of defendant corporation and all property
belonging thereto, to collect the funds and apply them
pro rata among the holders of said contracts, as the
court may direct, and have such other and further relief as
to the court may seem just."
"DIAMOND
CONTRACT. No. 35.
"Know
all men by these presents: That if G. A. Mann, the holder
hereof, shall first well and truly make each and all of the
payments herein provided for, to be made by him at the times
and in the manner herein specified, time, manner and the
amount of payment being of the essence hereof, the
German-American Investment Company, of Hastings, Nebraska,
will deliver to him, or to his legal representatives or
assigns, under and according to the terms and conditions and
in the manner and order hereinafter set forth, a commercial
white, clear and flawless diamond, of the weight of two
carats, and of the value of $ 100 per carat.
"The
holder hereof promises and agrees to pay to the company, at
its home office, in the city of Hastings, the full sum of one
hundred dollars in the following manner, to wit: Five dollars
on the delivery hereof, the receipt of which is hereby
acknowledged, and one dollar and twenty-five cents on or
before the last day of each calendar week following the date
hereof, for sixty consecutive weeks. If he shall fail to pay
any of said installments within the week in which it is
payable, the said delinquent installment, together with the
additional sum of twenty-five cents, may be paid at any time
before the end of the next succeeding calendar week; but if
he shall fail or neglect to pay any of said
weekly installments at the time and in the manner herein
provided, and shall continue in such default for more than
one week, then, and in that event, this contract shall,
because of such default, become and be wholly null and void,
and all payments theretofore made thereon shall be forfeited.
"The
weekly installments having been paid hereon to and inclusive
of the sixtieth week, this contract shall be deemed fully
paid up and nonforfeitable, and the holder shall be entitled
to receive the diamond herein described, provided, however,
that if, at such time, the amount in the hands of the company
to the credit of this contract is not equal to the sum of $
200 heretofore provided, then, the diamond shall not be
delivered until the amount to the credit hereof shall equal
that sum. Coincident with such delivery to the holder of a
contract, of such diamond, he shall surrender his contract to
the company for cancelation. The company shall employ one
dollar of each weekly installment of one dollar and
twenty-five cents paid in on this and other contracts,
together with all fines, lapses and forfeitures accruing
thereunder, in the purchase and delivery of the diamonds
required for the performance of such contracts; and may
retain all other sums paid in thereon, including the
remaining twenty-five cents out of each weekly installment,
for its own use and payment of all expenses. This contract is
transferable, but no transfer will be recognized by the
company unless first registered by the company, for which
registration a fee of one dollar will be charged."
