Utz v. Wolf

• Decision Date: 17 February 1920
• Docket Number: No. 10277.,10277.
• Citation: 72 Ind.App. 572,126 N.E. 327
• Court: Indiana Appellate Court
• Parties: UTZ et al. v. WOLF et al.

72 Ind.App. 572

126 N.E. 327

UTZ et al.

v.WOLF et al.

No. 10277.

Appellate Court of Indiana, Division No. 2.

Feb. 17, 1920.

Appeal from Circuit Court, De Kalb County; Dan M. Link, Judge.

Suit by Alonzo L. Utz and another against Samuel Wolf and another. Judgment that plaintiffs take nothing by the suit, and plaintiffs appeal. Affirmed.

Hoffman & Shearer, of Auburn, for appellants.

Herbert L. Somers and Harry F. Kennerk, both of Ft. Wayne, and Edgar W. Atkinson, of Auburn, for appellees.

NICHOLS, C. J.

This cause, originating in the Allen circuit court, was on change of venue transferred to the De Kalb circuit court, in which court an amended complaint was filed. To the amended complaint the appellees separately and severally demurred, which demurrer was sustained, and, the appellants failing and refusing to plead further, the court thereupon rendered judgment, in favor of appellees and against the appellants, that they take nothing by their suit, and that the appellees recover costs. The court's ruling upon the demurrer is the only error assigned.

The facts, substantially as stated by appellants in their brief, are as follows:

At the time of the transactions involved in this case the appellants constituted a partnership under the name of the American Copying Company, whose business had to do with putting on advertising campaigns for retail merchants in different localities. The system was worked out as follows: Contracts were procured from several merchants in a locality similar to the contract filed as an exhibit with the amended complaint in this action. The appellants then printed and distributed what they called their Automobile Stamp Directory for that locality, which contained the display advertisements of all the contracting merchants, and also blank spaces in each directory for the purpose of pasting therein 100 purchase stamps. The purchase stamps were printed by the appellants, and furnished, as provided in the contracts, to the said merchants at so much per hundred. It was provided in the contracts that the merchants were to give these stamps to their customers, one stamp to be given at time of purchase for each 10 cents represented in the purchase, the merchant agreeing to order from the appellants at the price agreed sufficient stamps to supply his trade for the period of the campaign, which in this particular case extended over a period of six months beginning October 15, 1914. The appellants were also to furnish an automobile as described in the contract, which was to be placed on display by one of the merchants during the campaign, and which at the close of the campaign was to become the sole property of the holders of certain tickets procured as hereinafter specified. The Automobile Stamp Directories were to be distributed among the general buying public, and the customers of the merchants participating in the campaign were instructed to paste their purchase stamps obtained at the time of their purchases in the blank spaces provided in said directories. One of the merchants was designated to give out tickets to the customers of all the merchants in exchange for filled Automobile Stamp Directories, and it was these tickets which entitled the holder to an undivided interest in the automobile at the termination of the campaign. Upon each ticket was to be printed a certain date, the same to be within one month from the termination of the campaign, upon which date a meeting of the holders of all tickets issued should be held to agree upon what disposition was to be made of the automobile, at which meeting each ticket holder was to be entitled to one vote for each ticket held by him, the majority of the votes at the meeting to determine the disposition to be made of the automobile.

In this instance the appellants procured the contracts of several merchants in the city of Ft. Wayne, Ind., among them the appellees. In those contracts the appellees' store was the one designated to give out tickets in exchange for the filled directories. Performance of the contracts was entered upon, the appellants printed and started the distribution of the directories and advertising matter, and started to furnish the stamps to the merchants as agreed, and consigned the automobile to the appellees at Ft. Wayne, whereupon a concerted movement was started among the contracting merchants to break their contracts and refuse to go on with the campaign as agreed. Each and all of the merchants thereupon refused to carry out their agreements, the appellees on their part refusing to allow the automobile to be displayed at their store, and refusing to distribute and give out the tickets as agreed, and refusing to order or accept any stamps to supply their trade.

After tendering performance of the contract on their part and making an effort to get the appellees and other contracting merchants to comply with their contracts, which efforts were unsuccessful, the appellants brought several suits against said merchants in the Allen circuit court at Ft. Wayne for damages for the breach of their contracts. Among them was the present action, from the judgment of which this appeal is taken.

The substantial question in this case...