Korrer v. Madden
| Decision Date | 11 March 1913 |
| Citation | 140 N.W. 325,152 Wis. 646 |
| Parties | KORRER v. MADDEN. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.
Action by Henrietta Korrer against Edward Madden. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.
The plaintiff set forth in her complaint that the defendant sold to her, on two separate occasions, stock in the Church Furnishing Company of Fond du Lac, to the amount in the aggregate of $350, under a promise to purchase the same from her if at any time she desired to sell. She further alleged that she relied on the promise and was induced thereby to make the purchase; that she became dissatisfied with the stock, and demanded of the defendant that he purchase the same from her according to his agreement; and that he refused to do so. Judgment was demanded for the purchase price of the stock, with interest. The answer was a general denial. The jury returned the following verdict:
“(1) Did the defendant, on or about August 2, 1910, to induce the plaintiff to purchase the stock of the Church Furnishing Company, evidenced by certificate No. 105, promise to take the stock so evidenced on plaintiff's request at the amount paid by the plaintiff therefor? Answer: Yes.
If to the first question you answer ‘Yes,’ then answer this question: (2) Did the plaintiff rely on said promise in purchasing said stock, and was she induced thereby to purchase the same? Answer: Yes.
(3) Did the plaintiff thereafter request the defendant to take the said stock? Answer: Yes.
If to the third question you answer ‘Yes,’ answer this question: (4) When was such request made? Answer: September, 1910.
If to the third question you answer ‘Yes,’ then answer this question: (5) Did the plaintiff request the defendant to take the stock after the receipt of the $7.50 dividend in the spring of 1911? Answer: Yes.
If to the fifth question you answer ‘Yes,’ then answer this question: (6) At about what time was such request made? Answer: April, 1911.
(7) Did the defendant, on or about August 12, 1910, to induce the plaintiff to purchase the stock of the Church Furnishing Company, evidenced by certificate No. 106, promise to take the stock so evidenced on plaintiff's request at the amount paid by the plaintiff therefor? Answer: Yes.
If to the seventh question you answer ‘Yes,’ then answer this question: (8) Did the plaintiff rely on said promise in purchasing said stock, and was she induced thereby to purchase the same? Answer: Yes.
(9) Did the plaintiff thereafter request the defendant to take said stock? Answer: Yes.
If to the ninth question you answer ‘Yes,’ then answer this question: (10) When was such request made? Answer: September, 1910.
If to the ninth question you answer ‘Yes,’ then answer this question: (11) Did the plaintiff request the defendant to take the stock after the receipt of the $7.50 dividend in the spring of 1911? Answer: Yes.
If to the eleventh question you answer ‘Yes,’ then answer this question: (12) At about what time was such request made? Answer: July, 1911.”
After the verdict was returned, plaintiff moved for judgment thereon, and defendant moved for judgment notwithstanding the verdict. The court granted the defendant's motion; and, from a judgment dismissing the complaint, the plaintiff appeals.J. E. O'Brien, of Fond du Lac, for appellant.
H. M. Fellenz, of Fond du Lac (L. A. Williams, of Fond du Lac, of counsel), for respondent.
BARNES, J. (after stating the facts as above).
[1] This court has held that where corporate stock is sold, paid for, and delivered pursuant to an oral agreement, wherein the vendor as a condition of the sale agrees to repurchase such stock at the option of the buyer, the whole constitutes but an entire original contract that is sufficiently performed to take it out of the statute of frauds (section 2308, Stats.), so that the vendee may sue and recover from the vendor on the agreement to repurchase. Vohland v. Gelhaar, 136 Wis. 75, 116 N. W. 869, 16 Ann. Cas. 781;Hankwitz v. Barrett, 143 Wis. 639, 128 N. W. 430. In both of these cases the vendee understood that he was purchasing the stock from the owner thereof, and did not know that the vendor was in fact acting as the agent of an undisclosed principal.
The circuit judge had the above rule of law in mind when he awarded judgment notwithstanding the verdict, because he says in his opinion: The law as declared in this case is in perfect accord with what is said in the two Wisconsin cases referred to.
The trial judge held, however, that the present case did not come within the rule of law above set forth, because the agreement involved was “nothing more than an agreement by a third person to purchase stock sold by one party to another,” and because the agreement to repurchase was “distinct and separate from the agreement between the parties to the sale consummated.” Continuing, further, he says: “But the proof shows conclusively that the defendant never owned or had in his possession the stock purchased by the plaintiff, and that the stock was issued and delivered by the company [the Church Furnishing Company] direct to the plaintiff, and that payment was made by the plaintiff direct to the company.” If the circuit judge had a correct conception of the facts, his legal conclusion drawn therefrom is unquestionably sound. If Madden's agreement was separate and independent from that made for the purchase of the stock, it was not reduced to writing, no part of the stock bargained for was delivered to him, and he paid no part of the purchase price. He made a mere oral agreement to purchase personal property of the value of more than $50 in case the owner desired to sell, which would fall squarely within the condemnation of the statute. So the real question in the case is, Did the trial court misapprehend the import of the evidence offered?
[2] The testimony of the plaintiff was to the effect that the defendant wanted her to buy...
To continue reading
Request your trial
- Kludt v. German Mut. Fire Ins. Co.
-
Illinois-Indiana Fair Ass'n v. Phillips
...156 S. W. 457;De Nunzio v. De Nunzio, 90 Conn. 342, 97 A. 323;Stifft v. Stiewel, 91 Ark. 445, 125 S. W. 1008,18 Ann. Cas. 597;Korrer v. Madden, 152 Wis. 646,140 N. E. 325. There is nothing in the nature of shares of corporate stocks which should exempt contracts for their sale from the reas......
-
Culp v. Holbrook
... ... Stiewel ... (1909), 91 Ark. 445, 125 S.W. 1008, 18 Ann. Cas. 597; ... Russell v. Bettes (1913), 107 Ark. 629, 156 ... S.W. 457; Korrer v. Madden (1913), 152 Wis ... 646, 140 N.W. 325; Snow, etc., Co. v ... Johnson (1911), 186 F. 745; Boardman v ... Cutter (1880), 128 Mass. 388; ... ...
-
Trumpf v. Shoudy
...was sold, as in Hankwitz v. Barrett, 143 Wis. 639, 128 N. W. 430, the doctrine of these cases being again recognized in Korrer v. Madden, 152 Wis. 646-649, 140 N. W. 325. It makes no difference that the defendants themselves claimed on the trial, or even assert in this court, that the lands......