Hankwitz v. Barrett

• Decision Date: 15 November 1910
• Citation: 128 N.W. 430,143 Wis. 639
• Parties: HANKWITZ v. BARRETT.
• Court: Wisconsin Supreme Court

143 Wis. 639

128 N.W. 430

HANKWITZ

v.BARRETT.

Supreme Court of Wisconsin.

Nov. 15, 1910.

Appeal from Superior Court, Lincoln County; Martin L. Lueck, Judge.

Action by Carl F. Hankwitz against James A. Barrett. From a judgment for plaintiff, defendant appeals. Affirmed.

Action to recover the amount paid for certain stock in the Tunnel Hill Mining Company sold by the defendant to plaintiff and his assignors under an agreement by the defendant to take back the stock and return the consideration paid for it if the purchaser at any time became dissatisfied therewith. The defendant in his answer admitted that he sold the stock, but denied that he agreed to purchase the same back, and alleged by way of further defense as to each claim assigned to plaintiff that the latter was not in fact the real party in interest and had no right to maintain the action. The assignments to plaintiff were in form as follows: “For a valuable consideration duly received, I do hereby assign, transfer, and set over unto Carl F. Hankwitz, of Merrill, Wisconsin, all claims, demands, rights of action, and causes of action I may have against James A. Barrett of the same place arising or growing out of the contract between myself and him whereby I purchased certain stock in the Tunnel Hill Mining Company and arising and growing out of any and all transactions, representations, fraud, or deceit, if any there be committed by the said Barrett in procuring the said contract or purchase, and do hereby authorize and empower the said Carl F. Hankwitz to institute and maintain any and all actions or proceedings at law or equity to enforce such rights and causes of action in the same manner and to the same extent that I might.” Each assignor also made an agreement with the plaintiff in the following form: “Agreement entered into by and between (name of assignor) party of the first part, of Merrill, Wisconsin, and Carl F. Hankwitz, party of the second part, of the same place, witnesseth: Whereas the party of the first part has this day assigned and transferred to the party of the second part certain causes of action against James A. Barrett, of Merrill, Wisconsin: Now, therefore, the party of the second part hereby agrees to institute and maintain such an action or actions as are necessary to enforce said claim or claims. The first party agrees to pay such proportion of the expense of such action as the amount paid by the first party for stock in the Tunnel Hill Mining Company shall bear to the total amount paid by all assignors for similar stock who shall have assigned their claims to said Hankwitz for the purpose of having them sued upon in the same action, the intention being that the party of the first part and the said Hankwitz and all other persons who shall have assigned their causes of action to the said Hankwitz shall reimburse said Hankwitz for all expenses of said action in just such proportion as the amount paid by each and all of them for their stock shall bear to the total amount. The party of the second part agrees to pay over to the party of the first part all amounts collected by him on the claim assigned by the first party to the second party less the first party's just share of the expenses of collection.” (Signature of parties.) The subscription card, referred to hereinafter in the verdict, reads as follows: “Number of shares. _______. I hereby subscribe and agree to pay for ______ shares of stock in the Tunnel Hill Mining Company. The capital stock of said corporation to be $85,000, and to consist of 85,000 shares, each of the par value of One Dollar, nonassessable.” The jury found as to each purchaser (1) that the defendant in negotiating the sale of the stock did promise to take the same back and return the consideration paid therefor if the purchaser at any time became dissatisfied therewith; (2) that the purchaser relied upon said promise; (3) that from the acts and representations of the defendant the purchaser understood that defendant sold his own stock; (4) that the purchaser did not at or before the time of paying the purchase price of said stock sign the subscription card which purports to bear his name; and (5) that a tender of the stock to defendant and a demand for a return of the consideration was made by plaintiff before the commencement of the action. Upon such verdict the court entered judgment in favor of the plaintiff for the total consideration paid by him and his assignors for the stock, amounting to $4,400, and the defendant appealed.

John Van Hecke (Geo. L. Williams, of counsel), for appellant.

Smart, Van Doren & Curtis (F. J. Smith, of counsel), for respondent.

VINJE, J. (after stating the facts as above).

1. The proposition advanced by the defendant that the agreement to repurchase the stock, if any was made, constituted a separate contract, and was void under section 2308, St. 1898, on the ground that it rested in parol, and there had been no sufficient part...