Johnson v. Vickers

• Decision Date: 20 April 1909
• Citation: 120 N.W. 837,139 Wis. 145
• Parties: JOHNSON ET AL. v. VICKERS.
• Court: Wisconsin Supreme Court

139 Wis. 145

120 N.W. 837

JOHNSON ET AL.

v.VICKERS.

Supreme Court of Wisconsin.

April 20, 1909.

Appeal from Circuit Court, Barron County; A. J. Vinje, Judge.

Action by Rasmus Johnson and others against Alvin Vickers. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

This is an appeal from a judgment of the circuit court of Barron county. The action was brought to recover a sum alleged to be due on a subscription contract. At the close of the testimony, the court directed a verdict in plaintiffs' favor, and from a judgment entered on such verdict this appeal is taken.

During the fall of 1906 certain parties circulated four subscription papers, alike in tenor and effect, which by their terms would constitute a single contract when completed. The purpose was to secure subscriptions to the amount of $14,000 to build a canning factory at Chetek, Wis. The Industrial Construction Company, a Chicago corporation, was the first party to the proposed agreement, and the subscribers were to become the second parties. The first party agreed to erect and equip the canning factory, according to specifications attached to the proposed contract, for $14,000. No subscriber was required to pay until the factory was completed, and the contract was to have no force or effect until $14,000 was subscribed. After the requisite subscriptions were obtained, the second parties agreed to appoint an executive committee of three with full power to represent them in all their interests, and to inspect the work, materials, and machinery from time to time as the factory was being built and equipped. All subscriptions were to become payable when the factory was completed, but in certain cases it was provided that notes might be given. After the factory was in operation, it was agreed that the second parties should form a corporation, each subscriber to receive stock to the amount of his subscription. The specifications for the building to be erected and the kind and character of the machinery to be furnished appear to be quite complete as to details, and such specifications were made a part of the contract. The contract bears date December 4, 1906, and the list of names attached thereto shows subscriptions to the amount of $14,000.

A meeting of the subscribers was called for December 6th at Chetek by mailing postalcards on the 4th and 5th of the month. The subscribers to the number of 175 were scattered throughout Barron county. The defendant was a subscriber to the amount of $100. He did not receive notice of the meeting until after it had been held. Some 50 or 60 subscribers, less than a majority, were present. At this meeting an executive committee was appointed. On December 8th the Industrial Construction Company assigned the contract in question, without recourse, to Rasmus Johnson, Christ Johnson, and T. H. Pardoe, the plaintiffs in this action. The assignees proceeded to erect the factory. Several meetings of the subscribers appear to have been held from time to time, none of which defendant attended, except a meeting held on March 2, 1907, at which time a vote was taken on the proposition of accepting the factory, and upon which proposition defendant claims to have voted in the negative. The subscribers were not advised of the alleged assignment of the contract to the plaintiffs before it is claimed that the job was accepted by the executive committee. It is conceded that the plant was not completed in some particulars on March 7th. The building had not been painted and cement floors had not been put in the boiler and engine room, and some other things remained to be done. The executive committee reported that the painting was not done and the cement floor was not put in by March 7th because it requested that this work be postponed until warm weather, and that it had made arrangements for doing the work at the proper time, and, further, that it had consented to some slight modifications in the contract, and that the same was completed by March 7th, except as to painting and cement work, which had been arranged for. Defendant declined to pay his subscription, and on the following grounds defended an action brought to recover the same: (1) The contract was not assignable. (2) The factory was not completed when accepted. (3) The requisite $14,000 had not been subscribed.

Failure to sustain these defenses is alleged as error, and error in rulings on evidence is also assigned.

Bundy & Wilcox, for appellant.

A. J. Sutherland and J. W. Soderberg, for respondents.

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

The disposition of this appeal necessitates the consideration of the following questions: (1) Was the contract sued on assignable? (2) Was the question of its nonassignability raised by the pleadings? (3) Was the defendant precluded from insisting upon the defense of nonassignability?

1. It is established that the Industrial Construction Company attempted to make an absolute assignment of its contract two days after its execution, and before any...