Fish Bros. Wagon Co. v. La Belle Wagon Works

• Decision Date: 15 June 1892
• Citation: 52 N.W. 595,82 Wis. 546
• Parties: FISH BROS. WAGON CO. v. LA BELLE WAGON WORKS ET AL.
• Court: Wisconsin Supreme Court

82 Wis. 546

52 N.W. 595

FISH BROS. WAGON CO.

v.LA BELLE WAGON WORKS ET AL.

Supreme Court of Wisconsin.

June 15, 1892.

Appeal from circuit court, Douglas county; R. D. MARSHALL, Judge.

Action by the Fish Bros. Wagon Company against the La Belle Wagon Works, Titus G. Fish, Edwin B. Fish, and Fred. C. Fish. Judgment for plaintiff. Defendants appeal. Reversed.

The other facts fully appear in the following statement by CASSODAY, J.:

It appears from the record that in 1863 the defendant Titus G. Fish and one Bull, under the firm name of Fish & Bull, commenced the business of manufacturing wagons in the city of Racine; that, as such firm, they employed one Edwin B. Fish, a brother of Titus G.; that about 1864 Bull went out of the firm, and Abner C. Fish, a brother of Titus G., became a member thereof, and they continued the business of manufacturing wagons under the firm name of Fish Bros., and as such continued Edwin B. Fish as an employe; that about 1868 Edwin B. Fish became a member of the firm of Fish Bros.; that about that time the firm became embarrassed, and thereupon entered into an agreement with Jerome I. Case, whereby Fish Bros. transferred to Case all the personal property they then had in the wagon-making business at Racine, and he advanced a large amount of money for the purpose of carrying on said business under an agreement in writing whereby said business was thereafter to be carried on by Fish Bros., acting as his agents, and they to draw out a certain amount per year for the support of their respective families, and to have the privilege of redeeming the property and the business or repurchasing the same upon payment to Case of the amount advanced and the interest agreed upon as stipulated; that the business was thereupon conducted by and in the name of “Fish Bros., Agents;” that about 1872 or 1873 one Huggins became a member of said firm and the same became known as “Fish Bros. & Co., Agents,” composed of Titus G., Abner C., Edwin B. Fish, and John C. Huggins; that in 1878 the catalogue used by said Fish Bros. & Co., Agents, had thereon a picture of Titus G. Fish on the left-hand corner, and underneath the picture were the words, “Titus G. Fish, founder of the firm of Fish Bros. & Company, 1864,” and upon the right-hand side of the picture was “1878,” being the date of the catalogue; that there was also the picture of a fish on the catalogue and cars; that such pictures and statements were continued on subsequent catalogues down to the time of the incorporation of the plaintiff; that in 1880 the wagons and vehicles so manufactured by Fish Bros., Agents, and by Fish Bros. & Co., Agents, had become somewhat celebrated to the trade, so that in 1880 they manufactured and sold about 15,000 in different parts of the country, and the capital involved in the business then was about half a million; that in 1880 a disagreement arose between Jerome I. Case and Fish Bros. & Co., Agents, as to their respective rights under said agreement, and thereupon Case commenceda suit against Fish Bros. & Co., which twice came to this court, and will be found reported in 58 Wis. 56, 15 N. W. Rep. 808, and 63 Wis. 475, 22 N. W. Rep. 322; that in 1882 or 1883 Abner C. dropped out of the firm, and D. J. Morey and S. S. Lyon became members thereof, under the firm name of Fish Bros. & Co., composed of Titus G. and Edwin B. Fish, Huggins, Morey, and Lyon; that the business was conducted and managed by Fish Bros. & Co., Agents, until after the first decision in this court; that October 16, 1883, Jerome I. Case was appointed a receiver, and took possession of all the property standing in the name of Fish Bros. & Co., Agents, or otherwise represented in said business, and excluded the members of said firm therefrom otherwise than and as employes; that Case continued such receiver down to September 26, 1885, when he resigned, and A. O. Hall was appointed in his place, and he continued the same as such receiver, advertising the business as “Fish Bros. & Company; A. W. Hall, Receiver; T. G. Fish, Superintendent;” and placing on the wagons and their catalogues “Fish Bros,” “Fish Wagons,” “Fish Bros., Agents,” “Fish Bros. & Company, Agents,” and the picture of a fish with “Bros.” on it, or “Bros. & Co.;” that Titus G. Fish continued in the employ of said Hall as such receiver during his entire connection with the business; that in December, 1886, Case being desirous of getting his money out of the business, one O. R. Johnson proposed to buy from Hall, as such receiver, the entire real and personal property of the business for $48,603.96, besides the outstanding accounts; that in pursuance of such order Johnson thereupon gave notes for such purchase to the amount of about $115,000; that January 22,1887, by way of effecting such transfer, Case and wife conveyed the real estate to said Johnson, and also his interest in the personal estate; that January 25, 1887, the court ordered such sale by the receiver to said Johnson, and the same was made accordingly; that January 28,1887, the plaintiff, Fish Bros. Wagon Company, became incorporated under chapter 86, Rev. St., for the manufacture and sale of wagons at Racine, with Titus G. and Edwin B. Fish, Johnson, Booth, and Deane as stockholders, which corporation had a capital stock of $250,000; that Edwin B. Fish and one Fred. C. Fish, a son of said Titus G., were employed in the business; that Johnson was the principal stockholder and president of the company; that Booth was secretary; that Titus G. Fish was vice president and manager; that Deane was treasurer, and Edwin B. Fish superintendent; that Titus G., as such manager, made an illustrated catalogue having thereon, “Fish Bros. Wagon Company, Racine, Wisconsin;” the picture of a fish, with the word “Wagon” thereon; a portrait of Titus G. Fish, with the figures “1864” on the left and “1888” on the right; together with the words, “Titus G. Fish, founder of the Fish Bros. Wagon,” in the middle; also with the words, “The Fish Bros. Wagon,” “Fish Bros. & Company, Racine, Wisconsin,” and the picture of a fish with “Fish Bros. Wagon Company, Racine, Wis.” thereon, and another picture of a fish with “Bros.” thereon, and another picture of a fish with “Bros. & Co.” thereon; that the articles of incorporation of said plaintiff company are dated January 27, 1887, and signed by Johnson, Booth, Titus G. Fish, and Edwin B. Fish; that April 22, 1887, Hall, as such receiver, deeded the real estate connected with said business to O. R. Johnson, in pursuance of the order of the court and a public sale at auction, April 7, 1887, reciting the consideration of $15,000; that Titus G. Fish was one of the directors of said company; that he was present at a meeting thereof, May 12, 1887; that on that day he entered into a written agreement with said Johnson, reciting that Johnson had advanced money to purchase the business of Fish Bros. & Co., and to purchase the real and personal assets of said business, and had transferred the said property to Fish Bros. Wagon Company, being the plaintiff corporation herein, and that he held substantially all of the capital stock of the corporation; therefore it was mutually agreed that said Titus G. Fish should give his entire time and efforts to making said assets productive, and containing an optional right to purchase by him from Johnson; that on the same day Johnson and wife conveyed said real estate, including the factory and buildings situated thereon, to the plaintiff company; that July 17, 1887, said Hall, as such receiver, made a further deed to said Fish Bros. Wagon Company, the plaintiff herein; that August 1, 1887, Titus G. Fish and Johnson entered into an agreement extending the former agreement between them to July 1, 1888, and the same was after wards extended to December 1, 1888, by written agreement; that Titus G. Fish was present and participated in a directors' and stockholders' meeting of the plaintiff company held October 24, 1887; that November 7, 1887, Hall, as such receiver, made a further deed of such property to said plaintiff company; that at a meeting of the directors of the company, August 13, 1888, said Huggins was elected a director and treasurer of said company; that December 29, 1888, Titus G. Fish verbally agreed to take 500 shares of the capital stock of the plaintiff company, and certificates therefor were issued, but not paid for, and were finally canceled April 2, 1889; that at a stockholders' meeting of the plaintiff company held January 21, 1889, Titus G. Fish and said Huggins participated in and were each elected directors for another year; and thereupon said directors elected said Huggins vice president and general manager, and said Titus G. Fish, secretary, of said plaintiff company; that at a stockholders' meeting of the plaintiff company held March 30, 1889, the stock of said Titus G. Fish was voted by proxy; that at the same meeting he presented his resignation as a director and secretary of the company, and the same was accepted; that Edwin B. Fish continued in the employ of the plaintiff company until June 17, 1890, when he went out; that June 17, 1890, Titus G. Fish, Edwin B. Fish, and Fred. C. Fish entered into copartnership by an agreement in writing to prosecute the businessof manufacturing or procuring to be manufactured and dealing in wagons and other vehicles, under the firm name of Fish Bros. & Co., Titus G. Fish to have a one-half interest and Ed win B. and Fred. C. each one-fourth interest therein; that it was provided therein that each party was at liberty to engage in other business on conditions named; that said business was to be located and conducted at such place as they might mutually deem advantageous; that on the same day the said Titus G., Edwin B., and Fred. C. Fish, of Racine, under the name of Fish Bros. & Co., entered into an agreement with the defendant the La Belle Wagon Works, a corporation then organized and existing under...