Koelbel v. Tecktonius

• Decision Date: 21 June 1938
• Citation: 228 Wis. 317,280 N.W. 305
• Parties: KOELBEL v. TECKTONIUS et al.
• Court: Wisconsin Supreme Court

228 Wis. 317

280 N.W. 305

KOELBEL

v.TECKTONIUS et al.

Supreme Court of Wisconsin.

June 21, 1938.

Appeal from a judgment of the Municipal Court for Racine County; E. R. Burgess, Judge.

Affirmed.

An action by Clara Koelbel, plaintiff, commenced on December 31, 1936, against E. C. Tecktonius Manufacturing Company, a corporation, to recover the sum of $2,500 alleged to be due as the result of an express agreement between plaintiff and defendant. Julia M. Tecktonius was originally made a party defendant but the action was later dismissed as to her. The action was tried to the court and a jury, and at the close of the testimony the court directed a verdict for defendant. Judgment dismissing the complaint was entered on November 5, 1937. Plaintiff appeals. The material facts will be stated in the opinion.

Wilbershide, Baumblatt & Storms, of Racine, for appellant.

Vilas H. Whaley, of Racine, for respondents.

WICKHEM, Justice.

The E. C. Tecktonius Manufacturing Company was founded by plaintiff's father, and at his death he willed the stock in this company in the following proportions: To Fred Tecktonius, son, 50%; to Emil Tecktonius, son, 25%; to plaintiff, daughter, 25%. During his lifetime, Fred Tecktonius acquired the stock of Emil, and at his death was the owner of 75% of the stock. Fred Tecktonius died June 6, 1935, and by the terms of his will Dennis E. Fitzgerald was made executor and trustee of the stock for the benefit of Julia Tecktonius, his widow. On July 17, 1929, while he was president of the defendant company, decedent took out a policy of insurance upon his life in the sum of $20,000, payable to his heirs, administrators and assigns. Later, defendant was substituted as beneficiary. Defendant paid all the premiums upon the policy. On January 10, 1931, defendant's board of directors adopted a resolution directing that the company's interest as beneficiary be assigned to certain creditors of the company. One of the assignees was Fred Tecktonius, whose claim as a creditor was based upon his transfer to a creditor of the company of first mortgage notes owned by him and having a value of $10,000. In accordance with the resolution, defendant assigned one-half of the beneficial interest of the policy to Julia M. Tecktonius, wife of Fred, and the balance was assigned to other creditors. After the death of Tecktonius there was a dispute whether the partial assignment of a portion of the policy to Julia Tecktonius was valid as to defendant's creditors, and the attorney for defendant, as well as plaintiff, both notified the insurance company to withhold payment of this amount. By this time plaintiff had had an audit made of the company's books and claimed that upwards of $7,000 had been misappropriated to his own use by Fred Tecktonius. Thus, at this state of the proceedings, to quote from plaintiff's own brief,

“There was a legitimate dispute as to both the legality of the assignment of the beneficial interest in the policy of insurance and as to the validity of the claim filed against the deceased's estate;

“A. The defendant company's attorney claimed the assignment was invalid and that the $10,000 belonged to the defendant corporation.

“B. The auditor and secretary of the defendant company found that the deceased had illegally used $7,050.16 of the defendant corporation's funds.”

Plaintiff claims that to settle the dispute plaintiff, Julia Tecktonius, Fitzgerald, and defendant agreed that $7,500 of the insurance assignment instead of $10,000 should go to the widow and $2,500 should go to plaintiff, and that this ratio was based upon the proportion of stock held by the widow and plaintiff; that although the foregoing was the actual agreement, the minutes of the corporation showed that in settling the conflicting claims of the parties, the widow was to receive $7,500 in cash, and that $2,500 was to go to the corporation. In accordance with the agreement, whatever its details, the...