Brown

The defendants appeal from the judgment. The appeal was taken within sixty days after its entry. The evidence and proceedings at the trial are presented in a bill of exceptions.

The defendants, Frank and John Spencer, are the sons of defendant Eleanor Spencer. According to the allegations of the complaint, they are interested in common with the plaintiffs in the cause of action and they are made parties defendant solely because they refuse to join as plaintiffs. The plaintiffs are Thomas Brown, David Brown, and Hochheimer & Co., a corporation. The transactions upon which the alleged trust arose occurred in 1901. At that time Hochheimer & Co., was a partnership. In 1903 a corporation under the name, Hochheimer & Co., was organized and thereupon the interest of said firm of Hochheimer & Co., was transferred to said corporation, one of the plaintiffs herein. We use the term “plaintiffs,” without regard to this change of character.

It is claimed that the complaint does not state facts sufficient to constitute a cause of action. As this is the main question in the case and its determination will decide a number of alleged errors of law occurring at the trial we take it up first. The…