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Hart v. Miller

Superior Court of Delaware, New Castle County

August 25, 1955

Allan HART
v.
Nathan MILLER and Brandywine Raceway Association, Inc., A Delaware Corporation (John W. KANE and Wilmington Raceway Association, A Delaware Corporation, Third Party Defendants).

Action against a corporation and others on implied contract to recover for services allegedly rendered. The defendants filed a motion for summary judgment based upon the pleadings, deposition and affidavits. The Superior Court, New Castle County, Carey, J., held, inter alia, that the motions would be denied as to services rendered after certain date on ground that questions presented were for trier of facts, but that the motions would be granted as to services prior to such date.

Motions granted in part and denied in part.

Page 752

Action based upon an implied contract for services. Motions by defendants for summary judgment, based upon the pleadings, depositions and affidavits.

Stewart Lynch and Florence Freeman, Wilmington, for plaintiff.

S. Samuel Arsht and John T. Gallagher (of Morris, Steele, Nichols & Arsht), Wilmington, for defendants.

William H. Bennethum (of Morford & Bennethum), Wilmington, for third party defendants.

CAREY, Judge.

This suit is to recover the reasonable value of services which the plaintiff allegedly rendered the defendant Brandywine Raceway Association, Inc. (herein called Brandywine) and Wilmington Raceway Association (herein called Wilmington) of which Brandywine allegedly received the benefit. The statement of facts herein is believed to represent the most favorable situation from plaintiff's view.

Late in 1949, Hart conceived the idea of erecting and operating a race track in New Castle. He broached the subject to John W. Kane, who agreed to finance, or help finance, the venture if necessary permits could be secured from the appropriate State and County Agencies. In October, 1950 Wilmington was organized, but no stock was ever issued nor did anyone ever pay any money into its treasury or supply it with tangible assets. The books of Wilmington are not in evidence, and both Kane and Hart, in their testimony, were unable to recall who the officers and directors were. The indications are that Kane was President and Hart Vice-President, and that two other men, Jacobs and Waldman, had some connection with it.

Hart, along with an architect named Colish, examined several possible sites and decided upon a location near Deemer's [49 Del. 479] Beach. An application was filed with the Delaware Harness Racing Commission for a permit to operate a track there. In a very short time, however, this application was withdrawn because the location was found unsuitable. Later, still in 1950, a desirable site was located in Brandywine Hundred, near Talleyville, and a new application was filed. Before this application was acted upon, the trouble in Korea made it impossible to procure steel for a project like this and, therefore, this application was withdrawn.

Some time in 1952, steel again became available, and Wilmington filed a new application for this location in Brandywine Hundred. Hart at that time had a verbal option for the purchase of the land. There were at least three other applications pending with the Racing Commission on behalf of other parties, but the Commission apparently was reluctant to grant more than one permit for New Castle. Hart says in his depositions that it was only because of his personal efforts that the members of the Commission were persuaded not to grant a permit to a rival concern. He had a number of talks with members of the Commission, both individually and collectively, as a result of which they looked over the proposed site.

In October, 1952, Kane suggested to Hart that Nathan Miller be brought into the project because it was thought that Miller might have some influence in helping

Page 753

to secure the permit. Hart objected to this proposal and even after a lengthy conversation still did not agree to it. To his surprise, therefore, he learned on October 28 that Brandywine Raceway Association, Inc., had been organized on October 21 with Kane and Miller being parties thereto together with Benjamin F. Shaw and John Hazzard. It was on October 28 that he met Kane and Colish at the proposed site and found that Kane had brought Miller with him. Upon being introduced, Miller asked Hart if he was the man selling the land and Hart replied that he was associated with Kane in promoting the track. During the day Hart talked at length with Miller and told him that he was ‘ in on the deal’ . ...


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