Sumner v. Union Trust Co. of Indianapolis

• Decision Date: 22 May 1946
• Docket Number: 17449.
• Citation: 66 N.E.2d 621,116 Ind.App. 684
• Parties: SUMNER v. UNION TRUST CO. OF INDIANAPOLIS et al.
• Court: Indiana Appellate Court

66 N.E.2d 621

116 Ind.App. 684

SUMNER v. UNION TRUST CO. OF INDIANAPOLIS et al.

No. 17449.

Appellate Court of Indiana, in Banc.

May 22, 1946

Ruckelshaus & Ruckelshaus, of Indianapolis and Christian & Waltz, of Noblesville, for appellant.

Dunbar & Dunbar and Noel C. Neal, all of Indianapolis, for appellees.

HAMILTON Judge.

This is an appeal from an adverse judgment rendered on an amended claim filed by appellant Charles L. Sumner against the appellees Union Trust Company and Rose M. Rahke, executors of the estate of Emil K. Rahke, deceased.

The amended claim alleged that said Charles L. Sumner and Emil K Rahke entered into a written contract on July 26, 1937 whereby Emil K. Rahke agreed to deliver to Sumner certain copyrighted and trademarked seal coupons, known as 'Moon' and 'Lightning,' which were in turn to be sold by Sumner to customers in Marion County and elsewhere in the State of Indiana; and said written agreement provided further that after deducting all legitimate expenses necessarily incurred by said Sumner in the operation of sale and distribution of said copyrighted and trademarked seal coupons, the net profits of said business were to be equally divided between said Emil K. Rahke and Charles L. Sumner. The amended claim alleged further that said Rahke wrongfully deposited the sum of $21,011.77 of said net profits in the Indiana National Bank at Indianapolis and thereby wrongfully and unlawfully converted one-half of said sum to his own use all without the knowledge and consent of appellant.

The appellees filed an answer which alleged in substance: That the claimant Charles L. Sumner and the decedent Emil K. Rahke at the time of the execution of said contract entered into a conspiracy to violate the criminal laws of the State of Indiana and particularly § 10-2302, Burns' 1942 Repl., § 2791, Baldwin's 1934, being § 555, Chapter 169, Acts 1905, by then and there conspiring to engage in a certain lottery scheme and gift enterprise for the purpose of sale and distribution of a certain gambling device called 'Moon' and 'Lightning' seal coupons, being a series of tally scores, each of said cards bearing a serial number and containing thereon a coupon, which coupon bore the serial number or daily tally score to which it was attached and which coupon contained certain numbers which entitled the holder thereof to a chance in said lottery scheme and gift enterprise for the distribution of certain sums of lawful money of the United States, which chance was based upon the winning baseball teams then playing in the United States of America and which entitled the holder of the winning ticket to a large sum of money. The answer alleged further the execution of said illegal lottery contract and that the money sued for was a part of the net profits received from the operation of said illegal lottery contract and conspiracy.

The cause was tried to the court which rendered its special findings of fact and conclusions of law thereon in favor of appellees and against appellant to the effect that the contract of July 26, 1937, was entered into in violation of§ 555, Chapter 169, Acts 1905, § 10-2302, Burns' 1942 Repl., § 2791, Baldwin's 1934, and that the business and operation conducted by the parties during the existence of said contract were void as against public policy.

The errors assigned are: (1) The court erred in each of its conclusions of law stated upon the special findings of fact; and (2) the court erred in overruling appellant's motion for a new trial. The grounds assigned in the motion for new trial are: (a) That the decision of the court is not sustained by sufficient evidence; and (b) the decision of the court is contrary to law.

The pertinent facts found by the court were as follows: One Emil K. Rahke was the owner and manufacturer of certain copyrighted and trademarked seal coupons called 'Moon' and 'Lightning.' That on July 26 1937, said Emil K. Rahke, doing business as the 'Specialty Sales Company,' and the appellant Charles L. Sumner, doing business as the 'No Mean City Sales Company' and 'State Sales Company,' entered into a written agreement for the sale and distribution of said seal coupons aforesaid. The parties to said agreement operated thereunder from July 26, 1937, to December 28, 1942, on which said date said business operation ceased by the consent of both parties. That under the terms of the written contract of July 26, 1937, Rahke agreed to sell and deliver to Sumner in such quantities as would satisfy and meet the needs and requirements of Sumner the copyrighted and trademarked seal coupons owned and manufactured by Rahke called 'Moon' and 'Lightning' at and for a stipulated price for each set of coupons. Sumner agreed to sell said coupons to the general public and inhabitants of Marion County and other counties in the State of Indiana. The method and scheme agreed upon and carried into effect under said contract from July 26, 1937, until the dissolution of said business on December 28, 1942, was as follows: Each coupon called 'Moon' and 'Lightning' was a printed coupon and on the same were written the names of the baseball teams of the major leagues and the American Association then playing in the United States; a coupon contained the names of three or four of said baseball teams; the names of the baseball teams were not visible but the same were covered by a piece of paper denominated a seal. During the winter months scores of former baseball games were used as the basis of said coupon sale in lieu of current games. Rahke was to manufacture and furnish said coupons to Sumner, who, operating by and through his agents, employees, and representatives, would consign certain coupons to various dealers, from sixty to eighty-five in number, in the city of Indianapolis and throughout the State of Indiana to be sold and distributed by said dealers to the general public. The price at which said tickets were to be sold and which were sold ranged from five cents to twenty-five cents apiece. The purchaser of a coupon or ticket from the dealer was given a chance to receive a large amount of money if the coupon had thereon the names of the ball teams with the highest scores for that particular day, that is, if the coupon had the names of four teams and three of such teams had the highest scores, it was a winning ticket or coupon; also the coupon with two teams having two highest scores out of three was a winning ticket or coupon. The winning ticket or coupon paid the owner or holder thereof as much as $420. The dealers to which said coupons were consigned by Sumner received a commission of 25% of the money collected from and by the sale of said coupons. The money, so collected...