Zaring v. Kelly

• Decision Date: 05 November 1920
• Docket Number: 10,485
• Citation: 128 N.E. 657,74 Ind.App. 581
• Parties: ZARING ET AL. v. KELLY ET AL
• Court: Indiana Appellate Court

128 N.E. 657

74 Ind.App. 581

ZARING ET AL. v. KELLY ET AL

No. 10,485

Court of Appeals of Indiana

November 5, 1920

Rehearing denied January 6, 1921.

From Marion Superior Court (a1,628); W. W. Thornton, Judge.

Action by John J. Kelly, receiver of the Morton Place Automobile Company, against William C. Zaring and others. From a judgment for plaintiff against the defendant named and another, they appeal.

Affirmed.

James E. Rocap and J. Fred Masters, for appellants.

John W Holtzman, Albert C. Pearson and John J. Kelly, for appellees.

OPINION

NICHOLS, J.

Action by appellee John J. Kelly, receiver of the Morton Place Automobile Company, against appellants and his coappellee, Ella C. Zaring, to recover $ 3,500, the value of certain assets of said company which were alleged to have been converted to their own use by appellants and appellee Ella C. Zaring. There was a verdict and judgment against appellant William C. Zaring for $ 2,000, and against Elder C. Zaring for $ 1,500. The only error assigned and presented by appellants is the court's action in overruling their motion for a new trial, in which it is contended that the evidence is insufficient to sustain the verdict; that the verdict is contrary to law; that the court erred in refusing appellant's request for peremptory instruction, and in giving certain instructions; and that there was error in admitting certain evidence.

It appears by the evidence that appellant William C. Zaring and appellee Ella C. Zaring are husband and wife, and that appellant Elder C. Zaring is their son. On November 22, 1915 one John R. King was the owner of all the stock of the Morton Place Automobile Company, which included in its assets a certain lease of property in which said company operated its business, which lease said King had in his own name. At said time said King sold the capital stock of said company to the Zarings for $ 3,500. Elder C. Zaring furnished $ 500 of the money, and his mother $ 3,000. William C. Zaring furnished nothing. One share of the stock was transferred to William C. and the remaining forty-nine shares were transferred to Elder C. and held by Ella C. as collateral security for the $ 3,000. The lease which was the property of the company, though held in trust by King, was by him transferred to William C. Thereafter, the company continued to occupy said property for its business, and paid the rent to the lessor. It does not appear that anything was paid to William C. for the use of the property. At the time of the transfer of the property to the Zarings, William C. was the president and one of the directors of the company, and Ella C. and Elder C. were the other directors. Elder C. was, and continued to be, the manager. In August, 1917, William C. and Ella C. resigned as directors, and thereafter Elder C....