Atlas Inv. Co. v. Christ
| Decision Date | 10 March 1942 |
| Citation | 240 Wis. 114,2 N.W.2d 714 |
| Parties | ATLAS INV. CO. v. CHRIST et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an amended order of the Circuit Court for Milwaukee County; Walter Schinz, Judge.
Affirmed.
Action begun February 17, 1940, in the civil court of Milwaukee county by Atlas Investment Co. against Andrew F. Christ and Joseph G. Jurinec to recover the sum of $2,500, with interest, upon a demand promissory note. The complaint alleged that defendant Andrew F. Christ executed and delivered the note to plaintiff; that defendant Joseph G. Jurinec, for valuable consideration, guaranteed the payment of said note by written endorsement thereon; that demand was made by plaintiff upon both defendants, but that no payment had been made; and that plaintiff was the owner and holder of said note.
The defendants in answer to the complaint alleged: That the note was executed in May 1939, as part of a transaction in violation of section 176.17, subsecs. (2) and (3), Stats., and was therefore void and unenforceable; that the defendants executed the note in order to finance a third person for the purpose of equipping a tavern and that the Blatz Brewing Company represented that it “would furnish the sum of $5,000 to promote and equip the tavern, upon condition that the major portion of the beer and soft drinks to be dispensed in the tavern would be purchased from the Blatz Brewing Company over a period of five (5) years.” That the Brewing Company represented to the third person licensee that it would pay a monthly rebate on beer and soft drinks to be applied on the payment of the $5,000. That to circumvent the provisions of the statute, it was understood that the Blatz Brewing Company would furnish the money and that defendant Andrew F. Christ would act as go-between. That the Blatz Brewing Company furnished two blank notes, each for the sum of $2,500, that neither of said notes was filled in except for the amount payable; that defendants were given to understand that the name of the Brewing Company or its agent would be filled in and that such notes would be paid solely out of rebates, and that the principal was to be payable over a period of five years without interest. That defendant Joseph G. Jurinec endorsed one note on the understanding that no attempt would be made to collect on said note and that payments would be made only in the form of rebates. That no authority was given the Blatz Brewing Company to insert the name of Atlas Investment Company as payee. That plaintiff was “merely a subsidiary of the Blatz Brewing Company and was used in this transaction merely as a cover to attempt to circumvent the provisions of the Wisconsin Statutes * * *.”
Although adverse examinations and affidavits filed by the parties failed to indicate that the plaintiff was a subsidiary of the Blatz Brewing Company, there was some evidence tending to establish the transaction as alleged in the answer and to show that appellant Atlas Investment Co. acted through agents of the Brewing Company in executing the note. The civil court was of opinion that the alleged transaction with the Brewing Company did not fall within the scope of section 176.17 (2) and (3) Stats., and granted plaintiff's motion for summary judgment on the ground that the affidavits on defendants' behalf contained no showing that the Atlas Investment Co. was a subsidiary of the Brewing Company and that there was therefore no showing of any facts sufficient to call for a trial bringing the case within the summary judgment statute, section 270.635 (2), Stats.
An appeal was taken to the circuit court for Milwaukee county and that court reversed the judgment of the civil court, reinstated the defendants' answer and remanded the cause for further proceedings. This appeal is by the...
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