Rand v. Wright
| Decision Date | 16 January 1895 |
| Docket Number | 15,418 |
| Parties | Rand, Receiver, v. Wright et al |
| Court | Indiana Supreme Court |
Petition for Rehearing Overruled May 3, 1895.
From the Marion Superior Court.
The judgment is reversed, with instructions to the court in general term to direct the court in special term to overrule the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.
S Claypool, W. A. Ketcham, C. Martindale, and S. M. Shepard for appellants.
W. H H. Miller, F. Winter, and J. B. Elam, McDonald, Butler & Snow, for appellee.
This action was brought by the appellant, as receiver of the Indiana Banking Company, to recover $ 214,200, with interest from February 28, 1878, out of which sum, it is alleged, the said Banking Company was, on said date, defrauded by appellees in the sale by them to said company of certain stock of the First National Bank of Indianapolis, No. 55.
The error assigned on this appeal is the sustaining of a demurrer to the complaint. The complaint is of great length, covering about one hundred closely written pages. No question seems to be raised as to the merits of the action itself, the only matter discussed by counsel being whether the suit could be brought in the name of the receiver. We shall, therefore, set out only such of the facts alleged as seem necessary to consider, in order to decide the question before us.
From the year 1865 there had existed in the city of Indianapolis a copartnership engaged in the banking business under the firm name and style of the Indiana Banking Company. On the first day of March, 1875, the members of this firm, to wit: Frederick A. W. Davis, William H. Morrison, John L. Ketcham, Jane M. Ketcham, William Needham, Peter J. Banta, Peter Ditmars and Samuel Miller entered into a written agreement of copartnership, under said name and style of the Indiana Banking Company, with a paid-up capital of $ 300,000. This partnership was to continue until the first day of March, 1880, with a proviso in the agreement that the same might be extended after said date "as may be deemed best for the interest of the owners of said banking company."
The following provisions were also made: "No partner shall sell his shares or interest in this bank to any person whatever without first offering said interest to the other partners.
It was, during the term of the partnership so formed, that the alleged fraud was practiced upon said banking company by the appellees, New and Wright, then president and vice president of said First National Bank of Indianapolis, No. 55, the details of which alleged fraud are set out very fully in the complaint.
It is further alleged, that at the close of said partnership period of five years, "the said partners, in accordance with said partnership articles, upon consultation, agreed to and did extend and continue said partnership for the further period of two years, with all its rights, credits and assets of every description, including said stock and all choses in action, and without any dissolution or withdrawal of capital or assets of any kind or description."
The parties who entered into the agreement for extending the term for two years, from March 1, 1880, to March 1, 1882, were the same persons who entered into the original articles of copartnership. The articles of agreement for the extension did not themselves differ essentially from the original articles, at least so far as any question before us is concerned.
During the period of extension, on March 18, 1881, one of the partners, William H. Morrison, died intestate. Thereupon, his widow, Mary Morrison, qualified as administratrix of his estate; and, in accordance with the agreements of copartnership, took his place in said firm.
Thereafter, Mary Morrison and the surviving partners continued the business of the firm unchanged, until a short time before the expiration of the period of extension; when, it is alleged, that, "for the purpose of continuing said business with all its rights, credits, assets, choses in action, duties and obligations of every nature and description, and to avoid a dissolution and winding up of the affairs of the said company, and to the end that said Samuel Miller might be permitted to retire from said business, and the said Mary Morrison become individually interested therein, without any interruption or break in said partnership business, and that the partnership assets of every kind and description should remain and continue in the business under the same name and style," a new agreement of copartnership, and also one of sale and transfer of the interest of Samuel Miller were executed.
By these last agreements, the name of the partnership continued as before, the Indiana Banking Company. The capital stock remained the same, $ 300,000, the Miller stock being purchased in proportional parts by the other members. Mary Morrison continued to represent her husband's estate as administratrix and widow, and also became a stockholder in her own right in the redistribution of the whole stock. The board of control was continued as before. The term of the partnership was made to continue three years from March 1, 1882, with provision for extending the term as before. Provision was also made, as before, for purchasing by remaining members the stock of any member who should wish to retire, as was also the provision in relation to the death of a member.
In all other respects, the provisions of these articles were such as to continue, as near as might be, the original company, according to the terms of the first articles of agreement, the sole substantial change being that Samuel Miller's interest passed to the remaining partners, while Mary Morrison took her husband's place. The sum total interests of the company remained identical.
In the agreement of purchase of the Miller interest the remaining partners assumed "all debts and liabilities of the former firm," it being "declared to be the true intent and meaning" of the agreement that the remaining partners "will pay and save said Miller harmless from all debts and liabilities for which he is legally liable as a partner."
In his agreement of sale to his partners, Miller stated that the conveyance was of "all my right, title, claim and interest in and to all the estate, property, assets and business of the firm and partnership known as the Indiana Banking Company, * * * this transfer covering all real estate owned by "said company" or by any person or persons in trust for [it], and also all judgments, notes, accounts, bills, credits, choses in action and property of any and all kinds and description" owned by said firm or in which it has any interest.
The transfer of interest and title from the old company to the new could hardly be more complete. No element of value whatever was left out; the property, rights and interests of the Indiana Banking Company were identical in the old and the new company.
It is further alleged, "that thenceforth said last-named parties continued to carry on said banking business without interruption under the same firm name and without other change, and with the same assets, rights and credits and...
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Rand v. Wright
...141 Ind. 22639 N.E. 447RANDv.WRIGHT et al.1Supreme Court of Indiana.Jan. 16, Appeal from superior court, Marion county; Daniel Wait Howe, Judge. Action by Frederick Rand, receiver, against John C. Wright and another. There was a judgment for defendants, and plaintiff appeals. Reversed. [39 ......