Cary Mfg. Co. Cary Mfg. v. Pommer (In re Acme Brass & Metal Works)

• Decision Date: 06 April 1937
• Citation: Cary Mfg. Co. Cary Mfg. v. Pommer (In re Acme Brass & Metal Works), 225 Wis. 74, 272 N.W. 356 (Wis. 1937)
• Parties: In re ACME BRASS & METAL WORKS. In re CARY MFG. CO. CARY MFG. CO. et al. v. POMMER et al.
• Court: Wisconsin Supreme Court

225 Wis. 74

272 N.W. 356

In re ACME BRASS & METAL WORKS.^*In re CARY MFG. CO.CARY MFG. CO. et al.

v.POMMER et al.

Supreme Court of Wisconsin.

April 6, 1937.

Appeal from a judgment of the Circuit Court for Portage County; Byron B. Park, Judge.

Affirmed.

Claim based on allegations of fraud by Cary Manufacturing Company and another against Chris. J. Pommer and others, as trustees, filed in a proceeding to wind up the affairs of a corporation upon dissolution. From a judgment entered July 6, 1936, disallowing the claim, the claimants appeal.

The Acme Brass & Metal Works, a corporation, adopted a resolution of dissolution, and assigned its property to the defendant Pommer and others, as trustees, and the circuit court for Waupaca county, in proceedings to wind up the affairs of the corporation appointed the said trustees to liquidate the corporate assets. The court gave notice to creditors of the corporation to file their claims. Pursuant to this notice the Cary Manufacturing Company and Francis C. Cary (hereinafter referred to as the plaintiffs) filed a claim against the corporation based upon allegations of fraud perpetrated by its officers in selling to the plaintiff corporation its plant machinery and water power. The Cary Manufacturing Company was owing the Acme Brass & Metal Works a large amount on a land contract evidencing the said sale. The clerk of court pursuant to a judgment of the circuit court affirmed by this court in Cary Manufacturing Co. v. Acme Brass & Metal Works, 215 Wis. 585, 254 N.W. 513, holds a large sum of money paid under insurance policies on destruction of a part of the plant by fire, to apply on the land contract as the installments thereof fall due. The plaintiffs claim damages from the Acme Brass & Metal Works for the alleged fraud in a sum in excess of the combined amounts of the insurance fund held by the clerk and the unpaid portion of the land contract. The prayer of the plaintiffs' claim is that the court adjudge the plaintiffs entitled to and the trustees to execute a deed to the premises sold to them, and order the court to pay over to the plaintiffs the insurance money.

The plaintiffs' claim was noticed for trial by the attorney for the trustees, who will be hereinafter referred to as the defendants, as an equity action at the May, 1935, term of the circuit court and the case was placed on the court calendar. No motion was made by the plaintiffs to remove the case to the jury calendar. At each term of the court the jury cases are first tried, and the instant case was passed to be regularly taken up after the jury work was disposed of. When it was called in due course, it was set for trial on May 23, but on May 20 it was stipulated by counsel and agreed by the court that the trial be had in Portage county. The stipulation was made on the understanding that the claim was an equity action, triable to the court, as distinguished from a law action, triable to the jury, and the change of venue would not have been consented to by the defendants had they contemplated that a jury trial would be requested or demanded by the plaintiffs. When the case came on for trial in Portage county, a jury was impaneled. The proceedings had at the time are not in the record. But that the action was then considered by the plaintiffs as in equity, and the verdict as advisory merely, is evidenced by the statements of plaintiffs' counsel, Mr. Cary, who besides being the president of the plaintiff corporation and owner of practically all of its stock, is an attorney at law, and took the leading part in the trial of the action, made in presenting his motions after verdict. A special verdict was submitted to the jury by which the jury found that the defendants falsely represented to the plaintiffs: (A) That the water power was 160 horse power and would run the machinery of the plant 24 hours without reducing the head of water more than one foot; (B) that the defendant corporation had flowage rights entitling it to raise the dam to 16 feet; and (C) that the tract of land contained 13 acres; that the plaintiffs relied on these representations in making the contract; and that the plaintiffs had no right so to rely on the representations covered by (A) and (B), but did have right to rely on that covered by (C). The damages sustained by reason of the false representation covered by (C) were fixed by the jury at $900. Both parties made motions after verdict. The defendants' motion was for dismissal of the action, and the plaintiffs' to change the answers to questions of the verdict that were against them to answers in their favor and for judgment on the corrected verdict. The court considered the case as one in equity and the verdict as merely advisory. It filed findings and rendered judgment upon its findings as distinguished from judgment on the verdict. It found that the representations covered by questions (A) and (B) above were not made by the defendants; that such statements as were made by the officers of the defendant corporation relative to the matters covered by said questions were statements of opinion only; and that the plaintiffs were not deceived thereby and did not rely thereon.

After the findings were made and filed, the plaintiffs made a motion to set them aside on the ground that the case was a law action, to change the answers of the jury as to right to rely on representations covered by questions (A) and (B) and for trial to another jury of the question of damages by reason of the representations covered by (B) as to which there was no finding by court or jury. The court again ruled that the case was not one at law, but in equity; and that the plaintiffs were estopped from claiming it was at law, because of their treating it as in equity until after the court filed its findings; and stated that were the action one at law, it would set aside the answers of the jury dependent on the representations covered by (A) and (B) so far as they were favorable to the plaintiffs.

Judgment was entered on the findings for the representation as to acreage for the sum of $900, and otherwise dismissing the plaintiffs' claim.

Edward J. Hart, of Waupaca (George B. Skogmo and Louis S. Wiener, both of Milwaukee, of counsel), for appellants.

Lloyd D. Smith, of Waupaca (Benton, Bosser, Becker & Parnell, of Appleton, of counsel), for respondents.

FOWLER, Justice.

[1][2][3] (1) The claim of the plaintiffs, being filed in proceedings for the winding up of the affairs of a corporation, is considered as in equity, triable to the court without a jury. Harrigan v. Gilchrist, 121 Wis. 127, 282, 99 N.W. 909;Keeney v. Clark, 186 Wis. 499, 508, 202 N.W. 466. Being so triable, the verdict of the jury was advisory only. The court therefore might properly refuse to accept the findings of the jury, and make its own findings of fact and render judgment thereon. Baumbach Co. v. Hobkirk, 104 Wis. 488, 80 N.W. 740;Gavahan v. Shorewood, 200 Wis. 429, 228 N.W. 497;McIntyre v. Carroll, 193 Wis. 382, 388, 214 N.W. 366. The court having done this, we cannot...