Fountain Spring Park Co. v. Roberts

• Decision Date: 18 February 1896
• Citation: 66 N.W. 399,92 Wis. 345
• Parties: FOUNTAIN SPRING PARK CO. v. ROBERTS ET AL.
• Court: Wisconsin Supreme Court

92 Wis. 345

66 N.W. 399

FOUNTAIN SPRING PARK CO.

v.ROBERTS ET AL.

Supreme Court of Wisconsin.

Feb. 18, 1896.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by the Fountain Spring Park Company against D. M. Roberts and others. From an order overruling a demurrer to the complaint, defendant Roberts and others appeal. Affirmed.

The complaint in this action, after appropriate formal allegations, sets forth, in effect, that about April or May, 1891, defendants Carrick and Willis formed a plan to promote the organization of plaintiff corporation, for the ostensible purpose of purchasing a certain tract of land, and selling the same at a profit, but in fact for the purpose of defrauding such persons as might become members of such corporation, and such corporation; that one Weber owned a land contract between him and Wells & Upham, the owners of the land which it was proposed to purchase, under which Weber had the right to become the purchaser thereof for the sum of $12,750, of which $6,000 consisted of a mortgage on the property, leaving, as the requisite cash payment to secure title to the premises under such contract, the sum of $5,750; that defendants Russell and Roberts, with knowledge of the fraudulent purpose of Carrick and Willis, entered into an agreement to assist them in carrying out the scheme, in consideration of receiving for their services a portion of the profits; that, for the purpose of inducing others to become stockholders in the proposed corporation, Carrick and Willis each took stock to the amount of $950, and then procured subscriptions for the balance of the capital stock, being $16,000, including their own subscriptions, by representing that the land was to cost $23,000, and was cheap at that price; that the persons who so subscribed for stock, relying upon such representations, paid in full for their stock, and took part in organizing the company; that all the money paid in was turned over to Carrick and Willis to enable them to secure the land at the price named; that, about the time Carrick and Willis were circulating the subscription paper and obtaining signatures thereto, Russell and Roberts, in accordance with their agreement with the former, and in furtherance of the fraudulent scheme to defraud the corporation, purchased the interest of Weber in the land contract for the sum of $600, and caused the same to be assigned to Russell, and held subject to the order of the conspirators, Carrick and Willis; that shortly thereafter the latter paid Russell and Roberts $2,000 out of the money paid in by the stockholders; that the title to the land was finally perfected in the corporation by the co-operation of all the defendants, each acting to carry out the general purpose of defrauding the corporation for their benefit; that the title was so perfected, subject to incumbrances amounting to $7,000, by the actual expenditure of $5,412.73; while it was made to appear to the corporation that the sum of $16,000 cash had been paid, making, with the incumbrances, the full sum of $23,000; that the sum of $10,587.27 was received by defendants Carrick and Willis from the corporation, over and above the amount which they actually expended in obtaining the land, which sum was unlawfully converted to their own...