Wadler v. Mogul Rubber Corp.

• Decision Date: 12 June 1945
• Docket Number: 17367.
• Citation: 61 N.E.2d 472,116 Ind.App. 152
• Parties: WADLER v. MOGUL RUBBER CORPORATION et al.
• Court: Indiana Appellate Court

61 N.E.2d 472

116 Ind.App. 152

WADLER v. MOGUL RUBBER CORPORATION et al.

No. 17367.

Appellate Court of Indiana, in Banc.

June 12, 1945

Appeal from Elkhart Circuit Court; Carl L. Chattin, Judge pro tem.

Guy W. Dausman, of Goshen, for appellant.

Mehl & Mehl and Harry E. Vernon, all of Goshen, for appellees.

DRAPER Judge.

Atlantic India Rubber Works, Inc., hereinafter called Atlantic, is a sales organization for rubber goods. In 1936 it acquired a majority of the stock of appellee Mogul Rubber Corporation hereinafter called Mogul, which latter is a rubber goods manufacturing concern, the purchase having been made by Atlantic to acquire a manufacturing unit. Atlantic later sold its Mogul stock to some of its own stockholders. The appellant acquired some but the appellees Moore and Moore husband and wife, acquired the controlling interest and they together now own about Eighty Percent of Atlantic and Sixty-eight Percent of Mogul. The appellant owns Eleven Percent of Atlantic and Twenty-two Percent of Mogul. In 1940 the appellant formed and is now interested in a competitive organization for the sale of rubber goods.

In this action, brought by appellant in August, 1944, Mogul and all of its stockholders except appellant are named as parties defendant. By it the appellant seeks to compel Moore and Moore to account to Mogul for profits alleged to have been diverted by them, and further seeks the appointment of a Receiver to take over the business, to maintain an action for an accounting and for damages against Moore and Moore, and to sell Mogul's assets and distribute the net proceeds of the sale to those entitled thereto according to their respective holdings.

The trial court found for all defendants. Appellant assigns error in the overruling of his motion for new trial which specifies that (1) the decision of the court is not sustained by sufficient evidence and (2) it is contrary to law.

Although the first specification in appellant's motion for new trial presents no question, since a negative decision may not be attacked upon the ground that there is a lack of evidence to sustain it, Wilson, Adm'x, v. Rollings, 1938, 214 Ind. 155, 14 N.E.2d 905; McKee v. Mutual Life Insurance Co. of New York, 1943, 222 Ind. 10, 51 N.E.2d 474; Department of Insurance, etc., v. Indiana Trav. Assur. Co., Ind.App.1945, 58 N.E.2d 761, the appellant may properly assert under the second, that by the decision of the trial court he was denied the relief to which the evidence entitled him. Wilson, Adm'x v. Rollings et al., supra.

The appellant's principal contention is that a receiver should be appointed because the evidence shows that Atlantic under the management of the appellee Charles O. Moore, who is the president of both corporations, has deprived Mogul of all of its customers other than Atlantic; that it compels Mogul to furnish some of its products to Atlantic at a loss to Mogul and without regard to Mogul's cost of production; that Atlantic compels Mogul to fill orders so small that a loss is necessarily incurred in filling them and that Atlantic demands priority or deliveries without system or schedule. To sustain his position, the appellant relies strongly on the case of Tri-City Electric Service Co. v. Jarvis, 1934, 206 Ind. 5, 185 N.E. 136. In the view we take of the case, it is unnecessary to decide whether the situation alleged by appellant to exist would, if proven, justify or require the...