Speck v. Kramer

• Decision Date: 09 March 1926
• Docket Number: 12,221
• Citation: 151 N.E. 37,84 Ind.App. 646
• Parties: SPECK v. KRAMER
• Court: Indiana Appellate Court

151 N.E. 37

84 Ind.App. 646

SPECK v. KRAMER

No. 12,221

Court of Appeals of Indiana

March 9, 1926

Rehearing denied May 20, 1926.

From Vanderburgh Probate Court; Elmer Q. Lockyear, Judge.

Action by Herman S. Kramer against Phillip Speck. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

Edward E. Meyer and Phelps F. Darby, for appellant.

James H. Meyer, Posey T. Kime and C. Z. Cambron, for appellee.

OPINION

THOMPSON, J.

This is an appeal from an action by appellee against appellant for money had and received on a complaint as follows: "That on or about March 6, 1920, the defendant became indebted to the plaintiff in the sum of seven hundred dollars for money had and received by the defendant for the use and benefit of the plaintiff; that said seven hundred dollars was paid by plaintiff to defendant at defendant's special instance and request; that said seven hundred dollars was paid by plaintiff to defendant upon a consideration which has wholly failed; that said seven hundred dollars remains due and unpaid. Wherefore plaintiff demands judgment for seven hundred dollars and for all other proper relief."

Appellant filed a motion to make the complaint more specific, which motion was overruled, and appellant excepted. Appellant also filed a demurrer to the complaint, which was overruled, to which ruling the appellant excepted. Appellant then filed answer of general denial.

There was a request for a special finding of facts and conclusions of law. The facts so found by the court are, in substance, as follows: That on January 19, 1920, appellee paid to appellant the sum of forty dollars, and on March 6, 1920, the sum of $ 460, to be in payment for stock in the White Star Mining Company, which company was to be thereafter organized by appellant, who resided in Evansville, Indiana, and by one J W. White of Arizona; that on March 6, 1920, said Speck and White, by their contract with appellee, agreed to organize said mining company; that said Speck and White were to immediately open up shafts and tunnels, and to begin the extraction of ore therein, and were also to build a road for hauling machinery into said mine, and for the hauling of the ore from said mine to the smelter; that they were to purchase machinery to use in the operation of said mine; that said contract provided, among other provisions, as follows "And the terms upon which I, H. S. Kramer, advance said money are as follows: Said White Star Mining Company, out of $ 550,000 of the promotion stock, will pay me ten shares of the par value of one dollar for each dollar I advance under this contract; the whole amount to be obtained by said J. W. White and Phillip Speck for the purpose herein indicated is $ 15,000 cash, for which $ 150,000 in stock, of the par value of one dollar each, will be given to the various parties advancing the said $ 15,000"; that Phillip Speck sent the money to J. W. White, but without waiting for the full amount of $ 15,000 to be raised or used for the purpose contemplated in the contract, and said $ 15,000 was never subscribed or raised, except $ 1,800; and that it is further provided in the contract that all money advanced shall be paid to either White or Speck jointly, and shall be by them deposited with the contract, deeds and other valuable papers in escrow in the State Bank at Prescott, Arizona; that there was no evidence that any of said money was ever deposited in said bank; that all of said money was sent to J. W. White by Phillip Speck for the purpose of improving the property described in the contract; that said J. W. White died in 1921; that before the bringing of this action, Kramer, the appellee, demanded of Speck, the appellant, either the delivery of the stock in the White Star Mining Company or the money he had paid, which the defendant refused to do for the reason that J. W. White had died, which appellant claimed terminated...