Brobst v. Marty

• Decision Date: 01 February 1916
• Citation: 156 N.W. 195,162 Wis. 296
• Parties: BROBST ET AL. v. MARTY ET AL.
• Court: Wisconsin Supreme Court

162 Wis. 296

156 N.W. 195

BROBST ET AL.

v.MARTY ET AL.

Supreme Court of Wisconsin.

Feb. 1, 1916.

Appeal from Circuit Court, Green County; George Grimm, Judge.

Action by Isaac Brobst and others against Jacob Marty and another. From a judgment dismissing the complaint, plaintiffs appeal. Judgment reversed, and cause remanded, with directions to enter judgment as prayed for in the complaint.

This action was brought to secure partition of personal property, or a sale thereof in case it could not be partitioned to advantage. The court found as facts that the plaintiffs and certain others in February, 1898, organized a voluntary unincorporated association for the purpose of building a cheese factory and of manufacturing and selling cheese and butter, such association to be named the Spring Creek Cheese Manufacturing Company; that it was understood by the parties that their interests should be known and designated by shares of stock and that each of such shares should be in the sum of $25, and that the number of shares originally subscribed for was 23, and that thereafter some changes in ownership took place and that 4 additional shares were sold; that at the time of the organization it was intended that the same should be incorporated, but such intention was never carried into effect; that about the time of the organization one Stabler agreed to give to the company one-quarter of an acre of land and one Brobst a like quantity, upon the condition that the same should be used by said company as long as it was used for cheese or butter making purposes; that it was the intention of said donors, and it was understood and agreed between them and the organizers of the company, that in the event that said company or its assigns should cease to use the lands for such purposes the same should revert to the donors; that such agreement was verbal on the part of Stabler, and as to Brobst was in writing, but that said written agreement has been lost; that thereafter the company entered into possession of the land donated, and erected valuable improvements thereon, consisting of a cheese factory, cellar, well, and barn, and graded a driveway from the highway to the cheese factory, and that they expended in all about the sum of $1,200; that part of such factory is built on the land donated by Stabler and part on the land donated by Brobst; that the buildings were and are built on a solid stone foundation imbedded in the soil, and that a cheese cellar was excavated under a part of the factory building, and that the walls and floors thereof are of stone, mortar, and cement; that said association has by itself and its tenants been in the constant possession, use, and occupation of the premises, which have been continuously used and are now being used for the purpose of manufacturing cheese; that the agreement between Stabler and Brobst and said association respecting the giving of said lands for factory purposes has been fully executed; that the company at no time, by resolution or otherwise, determined to discontinue the use of said premises for the purposes stated, and that the proceeds arising from the rents and profits of said cheese factory premises have been divided among the shareholders of said company; that at the time of the organization of said company no agreement was entered into as to the length of time that said business enterprise should continue, and...