Bloch-Daneman Co. v. J. Mandelker & Son, Inc.

• Decision Date: 10 November 1931
• Citation: 238 N.W. 831,205 Wis. 641
• Court: Wisconsin Supreme Court
• Parties: BLOCH-DANEMAN CO. v. J. MANDELKER & SON, INC.

205 Wis. 641

238 N.W. 831

BLOCH-DANEMAN CO.

v.J. MANDELKER & SON, INC.

Supreme Court of Wisconsin.

Nov. 10, 1931.

Appeal from two orders of the Circuit Court of Milwaukee County; Walter Schinz, Circuit Judge.

Action by the Bloch-Daneman Company, a corporation, against J. Mandelker & Son, Inc. From an order overruling a general demurrer to the amended complaint, and from an order granting a temporary injunction, defendant appeals.--[By Editorial Staff.]

Reversed and remanded.

Action begun September 18, 1930; orders made and entered January 20, 1931. One of the orders appealed from overrules the general demurrer of the defendant corporation to each of the two causes of action in the amended complaint. The other order grants a temporary injunction. The plaintiff, a general creditor of the defendant Martin Mandelker, commenced the action against Martin Mandelker to recover upon an account for merchandise sold and money loaned, and, in the second cause of action, upon an assigned account stated. In its complaint the plaintiff, in addition to the demand for money damages, asks that the defendant Martin Mandelker be enjoined temporarily and permanently from selling, assigning, transferring, or incumbering any shares of stock which he owns in the defendant corporation, and that he be required to surrender and deliver all such shares to the court; and, in its amended complaint, that the defendant corporation be enjoined, temporarily and permanently,from permitting the transfer, assignment, or incumbering of said shares on the books of the corporation; from delivering to the assignee or transferee any new certificates representing said shares owned by the defendant Martin Mandelker, or which purport to be owned by him; and from paying any dividend on said shares to the defendant Martin Mandelker, and requiring it to hold said shares when and if said certificates are surrendered to the corporation.

From the order overruling the demurrer, and from the order granting a temporary injunction, the defendant appeals.

Churchill, Bennett, Churchill & Davis, of Milwaukee, for appellant.

Armand J. Tuteur, of Milwaukee, for respondent.

ROSENBERRY, C. J.

The complaint alleges the corporate capacity of J. Mandelker & Sons, Inc., upon information and belief. It likewise alleges upon information and belief that the plaintiff began an attachment proceeding, and alleges upon information and belief that the certificate or certificates of stock representing the shares are in the possession of Martin Mandelker or the defendant corporation. These allegations are attacked upon demurrer as insufficient. We are cited to Mills v. Town of Jefferson, 20 Wis. 54;Sweet v. Davis, 90 Wis. 409, 63 N. W. 1047;Winterfield v. Cream City Brewing Co., 96 Wis. 239, 71 N. W. 101, and other cases in support of this contention. It is said in Steinberg v. Saltzman, 130 Wis. 419, 110 N. W. 198, 201: “The allegations of the complaint on information and belief challenging the validity of appellants' title upon the ground that no license to sell the realty was granted, it is insisted, is not sufficient to raise such question. That seems to be ruled in appellants' favor by Union L. Co. v. Chippewa County, 47 Wis. 245, 2 N. W. 281; (other cases cited).”

The allegation there in question related to the existence of a license to sell real estate. It is quite apparent that the statement there made was not carefully considered. The cases cited all relate to the character of the allegations in an answer sufficient to raise an issue requiring the plaintiff to produce proof. There is a wide distinction between allegations in the complaint sufficient to admit evidence upon the matters alleged, and the sufficiency of the allegations in an answer to raise an issue with respect to facts alleged in the plaintiff's complaint. See 21 R. C. L. p. 457, par. 22, and cases cited.

[1][2] While the complaint is far from a model pleading, it is not subject to attack by demurrer. The pleader should state facts within his knowledge positively, and not upon information and belief. If he does not do so, while the allegation may be sufficient to admit the proof, the burden cast upon the opposite party who is called upon to admit or deny is quite different.

The defendant Martin Mandelker was not served, and made no appearance. The demurrer was on behalf of the defendant corporation, and it appeals from the order granting the temporary injunction. The action was originally brought against the defendant Martin Mandelker alone, and a writ of attachment was issued. The sheriff made a return to the effect that the defendant could not be found; that he had attached the shares of stock owned and held by the defendant in J. Mandelker & Son, Inc., by delivering to and leaving with its secretary, a copy of the writ of attachment, and demanded a certificate showing the number of shares owned by the defendant; and that he received a certificate signed by the secretary showing that the defendant was the holder of record of 112 1/2 shares. The outstanding certificate or certificates representing such shares were not, however, seized by the officer. Thereupon the summons and complaint were amended by making the corporation a party defendant, and upon motion a temporary injunction was granted as to the defendant corporation. The temporary injunction, which was continued in force by the order appealed from, enjoined and restrained the defendant company from permitting the transfer, assignment, or incumbering of the shares of stock upon the books of the company or delivering to the assignee or transferee any new certificates of stock representing the shares so owned by the defendant Martin Mandelker, and provided that, if the said shares are surrendered to the defendant corporation, it hold said shares until the further order of the court. The temporary injunction also sought to restrain Martin Mandelker in certain respects, not material here, because he was not served and has not appeared, and it also restrained the defendant company from paying any dividend upon the shares of stock...