Fagerberg V. Phoenix Flour Mills Co‪.‬

LOCKWOOD, J. Phoenix Flour Mills Company, a corporation, hereinafter called plaintiff, brought suit against Dixon Fagerberg, hereinafter called defendant, for the sum of $55,090.28. The action was based upon the theory that defendant, J. T. Melczer, and R. C. Blair were at the times mentioned in the complaint directors of plaintiff corporation, and that they, conspiring and confederating together, used certain funds belonging to it, without its authority, to speculate in wheat on the stock market, and that by reason of such diversion and unauthorized use of these funds the plaintiff has lost $110,180.57, for which it was claimed defendant, Melczer, and Blair were jointly and severally liable to plaintiff. It was further alleged that Melczer had already paid to plaintiff on account of said liability $55,090.28, which had been credited thereon, and judgment was asked against defendant Fagerberg for the balance of the money which it was alleged had thus been illegally converted, together with interest. Shortly thereafter defendant moved that Melczer and Blair be brought in as parties defendant, on the ground that the complaint showed they were jointly involved with defendant in the transactions above described, and that if there was any liability it was a joint and several one. The court granted the motion, and they were duly made parties defendant. Thereafter there were many motions to strike and to make more definite and certain, demurrers and requests for bills of particulars, and other voluminous pleadings, which we refer to more specifically as necessity requires, and the case finally came to trial on the second amended complaint before the court sitting with a jury.