Smith, J.
This action was brought by appellee against appellants upon a complaint in one paragraph alleging a conspiracy among the defendants to defraud
appellee out of his interest in a certain corporation, organized by appellee for the purpose of selling and installing in buildings weatherstripping and caulking for windows and doors.
An answer in general denial was filed, which closed the issues.
There was a trial by jury and verdict in favor of appellee, against all four of the appellants for $2,500.00.
Motion for a new trial was filed by all of the appellants, and overruled by the lower court, after which judgment was rendered against all of the appellants on the verdict.
The case is in this court upon one assignment of error, that of overruling appellants’ motion for a new trial, to which overruling appellants separately reserved an exception.
The complaint upon which the case was tried is somewhat lengthy, and for that reason we will not set it out in full, but state the substance thereof, as follows:
On or about October, 1925, the appellee and one Wendell Barrett formed a corporation under the laws of Indiana, under the name of Superior Metal Products Company, with a capital stock of $10,000.00, with one hundred shares at $100.00 each, of which fifty shares were issued.
This corporation was organized for the purpose of selling and installing in buildings metal weatherstrip and caulking therefor. Appellee was the president of the corporation and owned forty-eight shares of the stock. One share each was issued to Hallie B. Cooley and Wendell Barrett.
That the appellee, prior to the organization of the Superior Metal Products Company, had entered in a contract with the Superior Metal Weatherstrip Company which was engaged in the manufacture of metal weatherstripping; and appellee agreed to purchase and
sell a certain, stated amount, to develop the sales, and to purchase and consume the entire output of the Superior Metal Weatherstrip Company.
That this contract conferred upon the Superior Metal Products Company the exclusive sale of weatherstripping manufactured by the Superior Metal Weatherstrip Company, and was assigned to the company, and was an asset thereof.
That by reason of the assignment of this contract to the Products Company, the stock in said company became of great value, and the company was operated at a profit to the stockholders therein.
That on December 29, 1925, the appellant, Lucius V. Hamilton, entered into a written contract with appellee, which was made part of the complaint, whereby said appellant purchased of the appellee twenty-six shares of the common capital stock, then held by the plaintiff. That at the time of sale of said stock and as a part of the transaction by which Lucius Y. Hamilton, under the name of L. Vachel Hamilton, became the owner of the 26 shares of stock, the Superior Metal Products Company issued to the appellee two promissory notes payable on demand, one for $434.17 and the other for $1,310.00 which notes were to be paid out of the funds as and when received by the company from unpaid accounts receivable, as listed on the books of the company on December 1,1925.
That the appellant, Lucius V. Hamilton, after acquiring this stock, sold and assigned part of same to Lucius O. Hamilton, Harriet S. Hamilton, and Francis F. Hamilton, and transferred one or more shares to said appellants, and thereafter caused said appellants, Lucius O. Hamilton, Harriet S. Hamilton, and Francis F. Hamilton, to be elected to membership on the board of directors.
That appellants, after becoming interested in the
company, entered into a conspiracy to wrong, cheat, and defraud appellee out of his interest in the company by breaking down its business and deflecting it to other channels, and rendering the company insolvent, so that its affairs would be wound up and the company retired from business, and appellee’s stock rendered valueless.
That appellants planned to take over the business and organize a new company for that purpose.
That in carrying out the conspiracy, appellants wrongfully, unlawfully, and fraudulently used the assets of the company to pay themselves large salaries, in-building experimental machines for the manufacture of weatherstripping, and soliciting orders for this product, which appellants personally filled and retained the profits. That appellants charged expenses not rightfully incurred so that the company became insolvent, and a receiver was appointed, and its affairs “wound up”, and appellee’s interest “wiped out.”
That appellants collected the accounts pledged for payment of the notes due appellee, kept the proceeds, and paid none of it to appellee.
The complaint then alleges that the company went into receivership about January 12, 1927.
That appellants organized and incorporated another company, known as Hamilton Weatherstrip Company, which absorbed all the business of the Superior Metal Products Company.
That the acts of appellants aforesaid caused appellee to lose his stock and the sums due on his notes, to his damage in the sum of $30,000.00.
The contract between the appellee and appellant, Lucius V. Hamilton,, referred to in the complaint and made part of it, was entered into on the twenty-ninth day of December, 1925, between L. Vachel Hamilton (appellant, Lucius V. Hamilton) herein, and the appellee, William B. Cooley. In this contract it was agreed
that the appellee should sell to appellant,' Lucius V. Hamilton, 26 shares of stock in the Superior Metal Products Company (which, evidently by mistake, was named in the contract as the “Superior Metal Weatherstrip Company”) for which appellant, Lucius V. Hamilton, was to pay $1,000.00 in cash. The contract further provided that appellee should procure the written resignation of all the officers and directors of the company and deliver same to appellant, Lucius V. Hamilton; and that a meeting should be held on December 30, 1925, to act on the resignation of the officers and directors, and to elect new ones. The contract also provided that appellant, Lucius V. Hamilton, should have the option any time within five years to purchase eight additional shares of stock for the price of $130.00 per share. Another provision in the contract stated that “L. Vachel Hamilton” should be elected president of the corporation, and should receive a salary of $300.00 per month; and at the end of the year, 50 % of the amount of profits of the company in excess of $7,200.00.
After filing the record in this court, appellants sought to correct the bill of exceptions on the evidence by obtaining a
nunc pro tunc
order in the lower court, setting out objections by appellants to the admission and rejection of certain evidence and the rulings of the court thereon, and to bring same to this court by
certiorari.
A supplemental transcript was filed in this court showing the entry of a
nunc pro tunc
order upon motion of appellants granting the relief sought. Appellee demurred to the motion, which was overruled.
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Smith, J.
This action was brought by appellee against appellants upon a complaint in one paragraph alleging a conspiracy among the defendants to defraud
appellee out of his interest in a certain corporation, organized by appellee for the purpose of selling and installing in buildings weatherstripping and caulking for windows and doors.
An answer in general denial was filed, which closed the issues.
There was a trial by jury and verdict in favor of appellee, against all four of the appellants for $2,500.00.
Motion for a new trial was filed by all of the appellants, and overruled by the lower court, after which judgment was rendered against all of the appellants on the verdict.
The case is in this court upon one assignment of error, that of overruling appellants’ motion for a new trial, to which overruling appellants separately reserved an exception.
The complaint upon which the case was tried is somewhat lengthy, and for that reason we will not set it out in full, but state the substance thereof, as follows:
On or about October, 1925, the appellee and one Wendell Barrett formed a corporation under the laws of Indiana, under the name of Superior Metal Products Company, with a capital stock of $10,000.00, with one hundred shares at $100.00 each, of which fifty shares were issued.
This corporation was organized for the purpose of selling and installing in buildings metal weatherstrip and caulking therefor. Appellee was the president of the corporation and owned forty-eight shares of the stock. One share each was issued to Hallie B. Cooley and Wendell Barrett.
That the appellee, prior to the organization of the Superior Metal Products Company, had entered in a contract with the Superior Metal Weatherstrip Company which was engaged in the manufacture of metal weatherstripping; and appellee agreed to purchase and
sell a certain, stated amount, to develop the sales, and to purchase and consume the entire output of the Superior Metal Weatherstrip Company.
That this contract conferred upon the Superior Metal Products Company the exclusive sale of weatherstripping manufactured by the Superior Metal Weatherstrip Company, and was assigned to the company, and was an asset thereof.
That by reason of the assignment of this contract to the Products Company, the stock in said company became of great value, and the company was operated at a profit to the stockholders therein.
That on December 29, 1925, the appellant, Lucius V. Hamilton, entered into a written contract with appellee, which was made part of the complaint, whereby said appellant purchased of the appellee twenty-six shares of the common capital stock, then held by the plaintiff. That at the time of sale of said stock and as a part of the transaction by which Lucius Y. Hamilton, under the name of L. Vachel Hamilton, became the owner of the 26 shares of stock, the Superior Metal Products Company issued to the appellee two promissory notes payable on demand, one for $434.17 and the other for $1,310.00 which notes were to be paid out of the funds as and when received by the company from unpaid accounts receivable, as listed on the books of the company on December 1,1925.
That the appellant, Lucius V. Hamilton, after acquiring this stock, sold and assigned part of same to Lucius O. Hamilton, Harriet S. Hamilton, and Francis F. Hamilton, and transferred one or more shares to said appellants, and thereafter caused said appellants, Lucius O. Hamilton, Harriet S. Hamilton, and Francis F. Hamilton, to be elected to membership on the board of directors.
That appellants, after becoming interested in the
company, entered into a conspiracy to wrong, cheat, and defraud appellee out of his interest in the company by breaking down its business and deflecting it to other channels, and rendering the company insolvent, so that its affairs would be wound up and the company retired from business, and appellee’s stock rendered valueless.
That appellants planned to take over the business and organize a new company for that purpose.
That in carrying out the conspiracy, appellants wrongfully, unlawfully, and fraudulently used the assets of the company to pay themselves large salaries, in-building experimental machines for the manufacture of weatherstripping, and soliciting orders for this product, which appellants personally filled and retained the profits. That appellants charged expenses not rightfully incurred so that the company became insolvent, and a receiver was appointed, and its affairs “wound up”, and appellee’s interest “wiped out.”
That appellants collected the accounts pledged for payment of the notes due appellee, kept the proceeds, and paid none of it to appellee.
The complaint then alleges that the company went into receivership about January 12, 1927.
That appellants organized and incorporated another company, known as Hamilton Weatherstrip Company, which absorbed all the business of the Superior Metal Products Company.
That the acts of appellants aforesaid caused appellee to lose his stock and the sums due on his notes, to his damage in the sum of $30,000.00.
The contract between the appellee and appellant, Lucius V. Hamilton,, referred to in the complaint and made part of it, was entered into on the twenty-ninth day of December, 1925, between L. Vachel Hamilton (appellant, Lucius V. Hamilton) herein, and the appellee, William B. Cooley. In this contract it was agreed
that the appellee should sell to appellant,' Lucius V. Hamilton, 26 shares of stock in the Superior Metal Products Company (which, evidently by mistake, was named in the contract as the “Superior Metal Weatherstrip Company”) for which appellant, Lucius V. Hamilton, was to pay $1,000.00 in cash. The contract further provided that appellee should procure the written resignation of all the officers and directors of the company and deliver same to appellant, Lucius V. Hamilton; and that a meeting should be held on December 30, 1925, to act on the resignation of the officers and directors, and to elect new ones. The contract also provided that appellant, Lucius V. Hamilton, should have the option any time within five years to purchase eight additional shares of stock for the price of $130.00 per share. Another provision in the contract stated that “L. Vachel Hamilton” should be elected president of the corporation, and should receive a salary of $300.00 per month; and at the end of the year, 50 % of the amount of profits of the company in excess of $7,200.00.
After filing the record in this court, appellants sought to correct the bill of exceptions on the evidence by obtaining a
nunc pro tunc
order in the lower court, setting out objections by appellants to the admission and rejection of certain evidence and the rulings of the court thereon, and to bring same to this court by
certiorari.
A supplemental transcript was filed in this court showing the entry of a
nunc pro tunc
order upon motion of appellants granting the relief sought. Appellee demurred to the motion, which was overruled. The lower court then granted the motion and entered the
nunc pro tunc
order. An exception was duly reserved by appellee to each proposition.
Appellee filed in this court an assignment of cross-errors raising the correctness of the court’s action therein.
From the conclusion we have reached in this case, no question will need to be considered upon the admission or rejection of evidence; hence the question whether appellants properly reserved any question thereon is not material to the determination of this case, and no necessity arises for considering the assignment of cross-errors. This leads us to a consideration of the assignment of error of appellant; namely, the overruling of the motion for a new trial.
It is assigned in the motion for new trial as grounds therefor that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. These are assignments No. 26 and No. 27.
A brief summary of the facts as presented by the record will be helpful in determining the questions presented herein. The appellee, in November, 1925, organized the company known as Superior Metal Products Company. He had as incorporators and directors, his wife and one other, Wendell Barrett. This company was organized to sell and install weatherstripping for buildings. It bought the materials from the Superior Metal Weatherstrip Company. The appellee was in control and managed the affairs of the corporation from the time of its organization until he sold its controlling interest to appellant, Lucius V. Hamilton, and transferred to him 26 shares of stock. The company was organized with one hundred shares, only fifty of which were issued, and all but two shares being issued to appellee. He sold 26 shares which left him 24 shares of stock in the corporation. At the time of the sale he made a contract with Lucius V. Hamilton (who used the name of L. Vachel Hamilton) one of the appellants herein, and sold the 26 shares of stock to Hamilton for $1,000.00 in cash. The written contract which was made a part of the complaint and introduced in evidence provided that the appellee would procure the
written resignation of all officers and directors of the company, and deliver same to Lucius V. Hamilton, and also obtain written notice of waiver of special meeting of stockholders, and do the things that were necessary to complete the transfer of the control of the company to the appellant, Lucius V. Hamilton.
In pursuance of this arrangement, Lucius V. Hamilton transferred two shares of stock, one to Harriet S. Hamilton, and one to Francis F. Hamilton. There was written out on the stock book of the company the transfer of one share to Lucius 0. Hamilton, but this share, it seems, was never delivered. It was further provided in the written contract that the appellee was to have the option of purchasing eight additional shares, and was to receive a salary of $300.00 per month and, as further consideration for his services, 50 % of the profit at the end of each year, which was in excess of $7,200.00. This contract was executed by appellant, Lucius V. Hamilton, and the appellee, William B. Cooley.
Lucius V. Hamilton, the appellant, continued in control as president and manager of the corporation for the year 1926, and up to the time of the appointment of the receiver in March, 1927. Soon after Lucius V. Hamilton obtained control, the company began to lose money and became insolvent, and appellant, Lucius V. Hamilton, loaned money to the company to keep the business going.
At the time of the sale of the stock, appellee, as president of the company, caused to be executed two promissory notes payable to the appellee, dated the day after the date of the contract between Lucius V. Hamilton and appellee. One of these notes was in the amount of $434.17, the amount of invoices due and owing by the company. The appellee advanced this money, paid the invoices, and took the company’s note for that sum. At the same time another note was executed for $1,310.00, which was to cover the amount of profit the company
was supposed to have made up to that time. Both of these notes, on the reverse side thereof, contained this statement in substance, that the notes were payable on demand and in monthly installments out of the money collected on the accounts of the company which were listed upon that date, but in any event due in six months from date. The losses from bad accounts, which were to be arrived at by deducting the difference between the contract price and the sum of the material and labor charges, were to be credited on*the notes.
These two notes and the loss thereof to appellee constitute part of the claim made for damages in this action.
The evidence further shows that the business of the corporation was ended after the receivership. The appellant, L. 0. Hamilton, some time in May, 1927, after the Superior Metal Products’ affairs had been wound up by the receiver, incorporated a company for the manufacturing of weatherstrips, known as the “Hamilton Weatherstrip Company.” The other appellants in this case have no interest in this new company; however, the appellant, Lucius V. Hamilton, is employed by the Hamilton Weatherstrip Company upon a salary, and has been working for it, and was at the time of the trial of this cause;
After reviewing all of the evidence in this case and searching the entire record, we believe that there is not sufficient evidence to sustain the verdict herein. There is no evidence against the appellants, Harriet S. Hamilton, Francis F. Hamilton, or Lucius 0. Hamilton, showing that they, or either or any of them, ever entered into any conspiracy or combination among themselves to wreck the Superior Metal Products Company, or that any of them had any management or control over the business, or did any- of the acts alleged in the complaint in furtherance of any concerted
understanding among them. The evidence does show that there was transferred to them, by appellant, Lucius V. Hamilton, one share of stock each so as to qualify them as directors, and as far as the record discloses that was the only connection they had with the company, except to attend at times the directors’ and stockholders’ meetings. The same is partially true of appellant, Lucius 0.' Hamilton. There was one share of stock written in the stock book to him but never delivered. This is the only connection shown by this record of Lucius 0. Hamilton with the company from which any inference could be drawn charging him with conspiracy, and the fact that he organized the Hamilton Weatherstrip Company, and incorporated the same in May, 1927, after the Superior Metal Products Company was in receivership. We are aware that conspiracy does not have to be proved by showing an agreement by the alleged conspirators, but that such conspiracy may be shown by inference from circumstances. We believe that there are no acts shown to have been committed by any of the appellants from which could be inferred a conspiracy on the part of either of them to do the things charged in appellee’s complaint. The gist of the charge in the complaint is that these appellants conspired together to wreck and ruin the business of the Superior Metal Products Company, and to make its stock valueless, and that in furtherance of this alleged scheme, the appellants took the business of the Superior Metal Products Company, and appropriated it to themselves, or to the corporation owned and controlled by them. It is true that appellant, Lucius V. Hamilton, the president and manager of the affairs of the Superior Metal Products Company, under his contract, was to have control not only of the corporation but of its business, which was that of selling and installing metal weatherstripping for buildings. The business of this corpora
tion depended solely on the individual ability of the members thereof to sell these products, and unless it is shown, or circumstances presented from which it could clearly be inferred, that the appellants so managed the affairs of the corporation with the intention to wreck its business, and that this was done by an understanding or agreement between appellants, then there could be no conspiracy.
“A conspiracy is defined to be ‘a combination of two or more persons by some concerted action, to accomplish some criminal or unlawful purpose; or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means.’ ”
Karges Furniture Company
v.
Amalgamated, etc., Union
(1905), 165 Ind. 421, 424, 75 N. E. 877, 2 L. R. A. (N. S.) 788, 6 Ann. Cas. 829.
“Before concerted action can amount to a conspiracy, creating liability either civil or criminal, such action must be unlawful.”
Kandis
v.
Pusch
(1927), 86 Ind. App. 246, 250, 155 N. E. 618.
One of the acts charged in the complaint is that the appellants collected upon the accounts the money which was supposed to be applied to the two notes owing to appellee by the company, and failed to turn the money over to appellee. The evidence in behalf of the appellee shows that this was done by the appellant, Lucius V. Hamilton, although Hamilton claims appellee told him (Hamilton) to use this money in the business. However this may be, if appellant, Lucius V. Hamilton, collected money that belonged to appellee and failed to turn same over to him, proper proceedings could be instituted to make him account for it.
No evidence being in the record showing that the other appellants had anything to do with this or knew anything about it, there could be no recovery upon the
theory of conspiracy. We think this evidence falls far short of sustaining the theory of appellee’s complaint, that of a conspiracy to defraud appellee; and that the verdict is not sustained by sufficient evidence. As the evidence is not sufficient to support the essential allegations of the complaint, it is not sufficient to sustain the verdict, and it is the duty of this court to reverse the judgment.
Wabash Paper Co.
v.
Webb
(1896), 146 Ind. 303, 310, 45 N. E. 474;
Lake Erie and Western Ry. Co.
v.
Juday
(1898), 19 Ind. App. 436, 445, 49 N. E. 843.
As to any acts committed in this case solely by the appellant, Lucius Y. Hamilton, before appellee could recover upon the theory of conspiracy against the other appellants, he would have to show not only an unlawful combination of two or more persons, but must also show that pursuant to such conspiracy, some act was done which resulted in damage; and that such act complained of would not have been actionable at all except for the unlawful combination of the several appellants.
Jenner et al.
v.
Carson
(1887), 111 Ind. 522, 13 N. E. 34; 5 R. C. L., 1092, sec. 42. We therefore hold that the verdict of the jury in this case is not sustained by sufficient evidence and hence, is contrary to law.
The trial court of its own motion gave to the jury instructions Nos. 18 and 19. Instruction No. 18 is as follows:
“If you find for the plaintiff and you further find that plaintiff has sustained damages as charged in his complaint then it will become your duty to fix and estimate his damages, if any, and the measure of plaintiff’s damages, if any, is the value of his twenty-four shares of stock in the corporation described in the complaint at the time of the commission of the wrongful and unlawful acts, if any, of any two or more of said defendants, as charged in the complaint; to
gether with the value of the notes described in the complaint at said time.”
It will be observed that in this instruction the court undertook to tell the jury the measure of damages. The instruction contains this statement, “Together with the value of the notes described in the complaint at said time.” These notes mentioned in the instruction are the ones heretofore referred to, given by Superior Metal Products Company and signed by appellee as president to himself, at the time of the sale of stock in question. It was written on the reverse side of the notes that they were to be paid for out of the accounts receivable as collected; that, if any accounts were bad and uncollectible, there was to be credited on the note the difference between the contract price and the sum of the material and labor charges against the contract.
The complaint charged, and there was some evidence to support it, that appellant, Lucius V. Hamilton, manager of the corporation, collected some of these accounts, and failed to credit them upon the notes, claiming that he had been given authority by appellee to use the money in the business. Although these were company notes, and the company had gone into receivership, and failed, nevertheless, if appellant, Lucius V. Hamilton, as manager and director of the company, had collected these accounts and failed to apply them on the notes, he would be liable personally to appellee for such conversion of the funds. There is no evidence that the co-appellants of L. V. Hamilton had anything to do with the collection of these accounts or the payment of these notes. In no event could the value of these notes be a measure of damages in- a suit for conspiracy to defraud as charged in this complaint. We hold that this instruction No. 18 is erroneous and harmful. *
Likewise, appellants complain of the giving of in
struction No. 19 by the court of its own motion. This-instruction is as follows:
“If you find for the plaintiff in this case and if you further find that he had sustained damages as charged in the complaint, and when you have fixed and determined the amount of damages that he is entitled to recover, then the form of your verdict should be ‘We, the jury, find for the plaintiff and we assess his damages in the sum of........Dollars,’ writing in the amount that you find that he is entitled to recover. But, if you find for the defendants you should indicate such fact by your verdict and in such event the form of your verdict should be, ‘We, the jury, find for the defendants.’
“When you retire to your jury room, you should select one of your number foreman and when you agree on a verdict, have your foreman sign such verdict and return with it into open court.”
In this instruction, the court undertook to tell the jury that if they found for the appellee, and fixed the amount of his damages that their form of verdict should be “We, the jury, find for the plaintiff and we assess his damages in the sum of........Dollars.” It will be noted that this instruction directs the jury to find against all of the appellants. It is more than mere directory as to the form of verdict, for the court permits of no other finding for appellee than that against all of the appellants. Appellants contend that this instruction is not reconcilable with instruction No. 13 given by the court of its own motion. Instruction No. 13 tells the jury in effect that if they find a conspiracy between two or more persons engaged therein, that any person not so engaged is not liable on account of any such conspiracy. Whether instruction No. 19 is in irreconcilable conflict with instruc
tion No. 13 or not is not important as we believe that as above stated instruction 19 is erroneous.
Appellee on page 18 of his brief under the heading “Specification of error No. 30” sets out under (2), “A direction to the jury as to the form of its verdict is not an instruction.” He cites the case of
Bradway
v.
Waddell
(1884), 95 Ind. 170. This was an opinion by Judge Elliot and the question there was: When one of the parties had requested the court to instruct the jury in writing, could the court give an oral instruction? This decision holds that all instructions must be in writing and if not, that it is substantial error. In that case, Judge Elliot said, “A direction to the jury to reject evidence, as to the form of the verdict, or the like, is not an instruction within the meaning of the Statute.”
This does not touch the point involved here, for in the instant case the court did instruct the jury in writing and also gave this instruction No. 19 in writing. This instruction is more than a mere direction to the jury as to the form of the verdict, for it does not set out the different forms of verdict which should have been submitted, and leaves the jury to infer that if they desire to find for the appellee, then they must find against all of the appellants. Such an instruction would be erroneous, for there could have been a finding of the jury against any two or more of appellants; in other words, two or more might be guilty of a conspiracy to defraud, and the rest of the appellants found not guilty. The case cited by appellee is not in point, for the question here raised is not the proposition of the court instructing the jury orally, but, having put the instruction in writing and given it to the jury, it must accurately state the law and be within the issues, the same as any other instruction.
There are several other questions presented, but having reached the conclusion that this case must be re
versed, it will not be necessary to consider them, as they will not likely arise on another trial.
The verdict of the jury is not sustained by sufficient evidence and is contrary to law; and instructions Nos. 18 and 19 being erroneous, we hold that the court erred in overruling appellants’ motion for a new trial. Judgment is reversed with instructions to the lower court to sustain appellants’ motion for a new trial, and for further proceedings not inconsistent with this opinion.
Kime, P. J., dissenting.