Milwaukee Cold–Storage Co. v. Dexter
| Decision Date | 12 April 1898 |
| Citation | 74 N.W. 976,99 Wis. 214 |
| Parties | MILWAUKEE COLD–STORAGE CO. v. DEXTER ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.
Action by the Milwaukee Cold–Storage Company against Avelyn I. Dexter and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed.
This action was commenced February 29, 1896, to recover from the defendants, Dexter and Godfrey, $18,187.50, with interest thereon from February 24, 1893, and have the same declared to be a lien upon their shares of stock in the plaintiff company, and that the same be sold to satisfy the amount so found due to the plaintiff from them, or, on default, their stock, or so much thereof as may be necessary to satisfy such decree, be canceled, and that the plaintiff have judgment against them for any deficiency. The defendants separately answered, by way of admissions, denials, and counter allegations. The cause having been tried by the court, the facts found or proved and admitted are to the effect: That April 15, 1892, Lindsay Bros. had possession of the land in question, under a land contract from the Milwaukee Land Company. That on that day the defendant Dexter applied to Lindsay Bros. for the purchase of the land. That they at first asked $30,000 for the land, but finally agreed orally to take $22,500, on the conditions stated in a written contract to be drawn therefor. That the defendant Dexter then paid Lindsay Bros. $1,000, as a part of such purchase price. That April 17, 1892, he paid them thereon the further sum of $5,000. That April 20, 1892, such land contract from Lindsay Bros. was drawn up and executed by them to the defendant Dexter, and the same is to the effect that Lindsay Bros., for and in consideration of $22,500 to be paid by the defendant Dexter as thereinafter specified, and the keeping of other promises, agreements, and stipulations by him therein made and contained, thereby agreed to convey a good title to the defendant Dexter, by warranty deed or deeds, to the real estate therein described, and further agreed to procure the construction of a suitable switch for the line of the Chicago, Milwaukee & St. Paul Railway Company on the right of way belonging to the company, so that the center of the track would be six feet east of the east line of the land described, and suitable for receiving and shipping merchandise from the building or buildings to be erected on said land. That in consideration of such agreements the defendant Dexter did therein covenant and agree to purchase and pay for the land described $22,500, as follows, to wit: The $6,000 at the time of the execution and delivery of such agreement, and which had in fact already been paid, as mentioned, and $16,500 in six equal installments of $2,750 each, payable on or before December 1st in each of the years 1892 to 1897, inclusive, with interest at 6 per cent. per annum, payable annually, on the deferred payments. That the defendant Dexter did therein further covenant and agree that he would on or before December 10, 1893, improve the premises by erecting thereon substantial and new buildings, machinery, and outfits, and use the same until April 20, 1899, in conducting a sold–storage business; that all such improvements should remain on the premises, and not be removed therefrom or destroyed until the final payment for the premises, and that he would promptly pay as so agreed, and would regularly pay all taxes and assessments, general or special, lawfully imposed upon the premises prior to the return thereof; that in case the defendant Dexter should fail to make the payments aforesaid, or any of them, punctually, or should fail to perform all of his agreements and stipulations aforesaid, strictly and literally (times of payment and performance being of the essence of the contract), then Lindsay Bros. were to have the right to declare the contract null and void, and all the rights and interests thereby created or then existing in favor of defendant Dexter should thereupon utterly cease and determine, and the premises, and the right to the possession thereof, should revert to and revest in Lindsay Bros. as absolutely, fully, and perfectly as if such contract had never been made. That the defendant Dexter did thereby covenant and agree that he would make no transfer of the contract, nor of his rights or interests in the premises, without the approval of Lindsay Bros. That it was thereby further mutually covenanted and agreed that the covenants and agreements therein specified should be binding upon the successors, heirs, legal representatives, and assigns of the respective parties. That April 20, 1892, the defendant Dexter entered into the possession of the real estate, and the several tenants occupying buildings on the premises thereafter attorned and paid rent therefor to him. That the defendant Dexter was then, and had been for a long time prior thereto, engaged in the business of cold–storage warehousing at Whitewater, and the same had been very profitable. That he was also the inventor of certain devices used in such business, and the owner of letters patent on the same, and had for a long time theretofore been engaged in the business of erecting and constructing cold–storage warehouses, upon contract, for others. That such real estate was not purchased by the defendant Dexter for or on behalf of the plaintiff corporation, nor with the intention of turning the same over to, or disposing of the same in any manner to, the plaintiff or any corporation. That he first conceived the idea of forming a corporation for the purchase of the land in question from himself, and the carrying on upon the land the business of cold–storage warehousing, May 5, 1892, and that prior to that date neither of the defendants did anything looking towards the formation of the plaintiff corporation, or any other corporation, and did not consult any person relative to the formation of the corporation, or ask any person to become in any way interested therein. That the defendant Dexter so purchased the land from Lindsay Bros. for the purpose of building and operating thereon a cold–storage warehouse himself, but after failing to dispose of some other property owned by him, from which he hoped and expected to secure funds necessary for that purpose, he, on May 5, 1892, proposed to the defendant Godfrey, who carried on a large commission business in Milwaukee, and whose patronage of such cold–storage warehouse would add much to the probable success of the enterprise, that a corporation be formed, with a capital stock of $100,000, to take from the defendant Dexter the land, at and for the sum of $40,000, and build and operate a cold–storage warehouse thereon; that he (the defendant Dexter) would subscribe for $60,000 of such capital stock; that in case he (the defendant Godfrey) would give his own subscription, or procure the subscription of other commission men, together with his own, to the remaining $40,000 in capital stock, he (the defendant Dexter) would pay him (Godfrey) for such services in obtaining such subscriptions, and also (to induce the defendant Godfrey to become such stockholder, and thus secure his valuable patronage for such warehouse business) the sum of $4,000. That no part of the $4,000 was added to the purchase price which the projected corporation was to pay for the land, but was to be paid by the defendant Dexter, out of his own money, to the defendant Godfrey, for the consideration aforesaid. That the purpose thereof was to aid the projected business in the manner aforesaid. That after May 5, 1892, the defendant Dexter also solicited E. J. Lindsay, of the firm of Lindsay Bros., to subscribe for and take stock in the plaintiff corporation for the purpose of purchasing the land at $40,000. That said Lindsay subscribed for and agreed to take 50 shares of the stock, and pay therefor $5,000. That some time after such subscription said Lindsay claimed that, under the circumstances of the recent sale of the land by Lindsay Bros. to the defendant Dexter at such reduced price, he thought it was unfair to charge him for his interest at so high a price. That thereupon the defendant Dexter thought he would make it right, and afterwards gave him his check for $550; that is to say, to charge him for his interest at the rate of $30,000 for the land,––the price first exacted by Lindsay for the land. That both the defendant Godfrey and Lindsay subscribed for stock in the plaintiff corporation prior to June 4, 1892. That articles of incorporation of the plaintiff were executed May 7, 1892, and filed and recorded, as required by law, May 9, 1892. That at the time the first meeting of the corporation was held for the purpose of organization (June 4, 1892), and prior to and at that time, the following persons had subscribed to the stock of the corporation, and agreed to take and pay for the number of shares set opposite their names, as follows:
+--------------------------------------------------------------+
¦A. I. Dexter ¦500¦shares ¦$50,000¦
+----------------------+---+---------------------------+-------¦
¦E. R. Godfrey ¦160¦shares ¦16,000 ¦
+----------------------+---+---------------------------+-------¦
¦E. R. Godfrey, Jr. ¦40 ¦shares ¦4,000 ¦
+----------------------+---+---------------------------+-------¦
¦W. H. Stevens ¦20 ¦shares ¦2,000 ¦
+----------------------+---+---------------------------+-------¦
¦I. P. Tichenor ¦20 ¦shares ¦2,000 ¦
+----------------------+---+---------------------------+-------¦
¦N. L. Kneeland ¦20 ¦shares ¦2,000 ¦
+----------------------+---+---------------------------+-------¦
¦G. C. Rogers ¦20 ¦shares ¦2,000 ¦
+----------------------+---+---------------------------+-------¦
¦E. K....To continue reading
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