Kline v. Thompson

• Decision Date: 12 January 1932
• Parties: KLINE v. THOMPSON ET AL.
• Court: Wisconsin Supreme Court

206 Wis. 464

240 N.W. 128

KLINE

v.THOMPSON ET AL.

Supreme Court of Wisconsin.

Jan. 12, 1932.

Appeal from a judgment of the Circuit Court for Outagamie County; Edgar V. Werner, Circuit Judge.

Action by John P. Kline against D. L. Thompson and another. From a judgment in favor of the plaintiff against the defendant Little Rapids Pulp Company, the latter appeals.--[By Editorial Staff.]

Reversed, with directions to grant a new trial in accordance with opinion.

Action commenced on the 7th day of October, 1929, to recover damages for breach of contract. From a judgment in favor of the plaintiff entered on the 18th day of May, 1931, against the defendant the Little Rapids Pulp Company, the defendant appealed.

The defendant is a Wisconsin corporation organized early in the year 1925 and duly authorized to issue both common and preferred stock. At the time the alleged contract was entered into, D. L. Thompson was its president and John M. Shure its treasurer and general manager. The company was engaged in the business of manufacturing pulp from spruce and balsam wood for use in manufacturing paper. Plaintiff is a lumber and pulp wood broker. During the summer of 1925 he came in contact with Mr. Thompson, president of the company, to whom he expressed his desire to furnish the company a portion of its pulp wood requirements. At a subsequent interview between the plaintiff and Mr. Thompson the latter suggested the desirability of the plaintiff's becoming a stockholder of the company, which suggestion the plaintiff received favorably. Mr. Thompson and the plaintiff went to the company's office, where the purchase of stock by the plaintiff was further considered, with the result that the plaintiff agreed to purchase from Mr. Thompson individually fifty shares of the common stock of the company and from the company fifteen shares of its preferred stock. Just what was said by the parties during the negotiations for stock is in dispute. The plaintiff claims that it was understood and agreed between him and the company acting through its president, Thompson, that if he would purchase stock from Mr. Thompson individually and also from the company, he would be employed by the company to purchase its pulp wood requirements so long as he continued to hold such stock--he to be paid by the company for such services 40 cents per cord over and above the market price therefor. Mr. Thompson and Mr. Shure testified in substance that no such agreement was entered into, but that it was stated by Mr. Thompson that if the plaintiff would purchase stock in the company, other things being equal, he would no doubt be given a preference as to the purchase of the company's pulp wood requirements. At the time the alleged contract was entered into the company had already made arrangements for its pulp wood supply for the ensuing year. In the fall of that year plaintiff was given an order for five thousand cords of wood which he thereafter furnished to the company, charging for his services the sum of 40 cents per cord. In February, 1926, one Dickinson was elected president of the company and upon his election he assumed the duty of purchasing most of the pulp wood thereafter required by the company. At various times thereafter the plaintiffwas given further orders for pulp wood, although at no time thereafter did the company pretend to order all of its pulp wood through him. The company paid the plaintiff a commission on all pulp wood furnished by him with the exception of one purchase aggregating about 2,035 cords. As to the latter order there arose a dispute between the plaintiff and the company as to whether the plaintiff was entitled to any commission for purchasing this particular wood. The company took the position that no commission charge was to be made for this wood because it was purchased as a favor to the plaintiff. There is testimony in the record to the effect that at the time the order was given no charge was to be made for this purchase; that some time later the plaintiff billed the company for such purchase at 25 cents per cord; and on the day this action was commenced the plaintiff appeared before the board of directors and presented a claim amounting only to $525. When he appeared before the board of directors on the very day this action was started, he made no claim against the defendant company except that involved in the purchase of the 2,035 cords of pulp wood. It is undisputed that the board of directors never authorized its president or treasurer to enter into any such contract as the plaintiff claims was entered into. The trial court evidently regarded the contract and its terms as the only issue in dispute. A single question in the form of a special verdict was submitted to the jury as follows:

“Question. Was it understood and agreed by and between the plaintiff, John P. Kline, and D. L. Thompson and John M. Shure, as officers of and for and on behalf of the defendant, Little Rapids Pulp Company, on or about June 17, 1925, that in consideration of John P. Kline purchasing fifty shares of common stock at seventy dollars per share and fifteen shares of preferred stock at one hundred dollars per share in the said Little Rapids Pulp Company, the said John P. Kline be employed to fill all of the said Little Rapids Pulp Company's orders for pulp wood at the market price, as long as the said John P. Kline owned said stock, and that said company would pay said John P. Kline the sum of forty cents per cord for all pulp wood ordered by said Little Rapids Pulp Company?”

This question was unanimously answered, “Yes.” Upon the verdict as rendered and upon certain additional findings and computations made by the court, based largely upon the undisputed evidence, judgment was rendered in favor of the plaintiff and against the defendant company for the sum of $6,835.33 damages, costs, and disbursements, from which the defendant appealed.

Frank & Pelkey, of Appleton, for appellant.

Benton, Bosser & Tuttrup, of Appleton, for respondent.

NELSON, J.

The defendant company contends: (1) That the verdict of the jury is not supported by any credible evidence; (2) that Thompson, as president of the company, had no express, implied, or apparent authority to enter into the alleged contract; (3) that in any event the contract being oral and by its terms not to be performed within one year from the making thereof is void under the statute of frauds; and (4) that the contract as claimed by the plaintiff and as found by the jury is void and unenforceable because it lacks mutuality.

[1] As to defendant's first contention, the court is of the opinion that...