Minahan v. Timm
| Decision Date | 07 March 1933 |
| Citation | 210 Wis. 689,247 N.W. 321 |
| Parties | MINAHAN ET AL. v. TIMM ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Brown County; Henry Graass, Circuit Judge.
Action by J. R. Minahan and others against H. K. Timm and others. From a judgment for plaintiffs, defendants appeal.--[By Editorial Staff.]
Affirmed.
Action begun February 17, 1931; judgment entered February 26, 1932. Foreclosure of land contract. The Green Bay Orpheum Company was a Wisconsin corporation organized in the year 1912, the defendant H. K. Timm having become the purchaser of all of its stock about 1920. It was engaged in the business of operating a leased theater until about 1925 when the plaintiff and the Orpheum Company entered into a land contract by which the Orpheum Company became the purchaser of the premises, the purchase price being $70,000. In April, 1928, acting under its statutory authority, the Industrial Commission condemned the theater building. Matters ran along until February, 1929, when the theater was finally closed. Thereupon H. K. Timm, the principal stockholder of the Orpheum Company, sought financial aid and attempted to refinance the construction of a new building upon the premises. Having been unable to secure outside aid, Timm finally opened negotiations with the plaintiff as a result of which the Orpheum Company quitclaimed its interest in the premises to the plaintiff who was to finance the new building. The quitclaim deed was executed by H. K. Timm, the president, and Bess Cleary, secretary of the Orpheum Company, but no stockholders or directors' meetings were called or held authorizing the execution of the deed.
Upon the trial it was the contention of the defendant H. K. Timm that in addition to the one share appearing upon the records of the company to be owned by Edwin O. Timm, brother of H. K. Timm, and one share appearing to be owned by Bess Cleary, Edwin O. Timm was entitled to four additional shares; that his sister, Gladys Timm, was entitled to five shares, Bess Cleary was entitled to five shares, leaving the defendant H. K. Timm the owner of fifteen shares. The certificates representing the twenty-eight shares in H. K. Timm, one share in Edwin O. Timm and one share in Bess Cleary were apparently still in the certificate book and never had been withdrawn therefrom. The present officers of the corporation were elected in 1919, thereafter no corporate meetings were held and apparently no directors' meetings.
In the negotiations, as a result of which plaintiff agreed to finance the erection of a new building, Timm represented to the plaintiff that the building would cost from $125,000 to $150,000. As the building progressed it became apparent that the cost would exceed over $200,000. No papers except the deed were drawn up until the building was practically completed when it appeared that the actual cost would overrun the estimated $150,000. The plaintiff advised Timm that he would have to increase the yearly payments which had been agreed upon between them. When the time came for the execution of the land contract, a draft of it was prepared of which H. K. Timm had possession for two or three days. By its terms payments were to be made at the rate of $3,000 per month by H. K. Timm, who appeared as purchaser. A statement of the amount of money furnished by the plaintiff was also furnished to him. The contract was dated September 19th, but was not signed until November 4, 1930.
Down to the time of the execution of the new contract, the plaintiff and the defendant H. K. Timm were personal friends and on good terms. The purchase price under the contract, which included the amount still remaining due and unpaid on the original purchase price, together with the amounts advanced for the erection of the building, totalled $266,743.34. There was due on October 5, 1931, under the terms of the contract, the sum of $274,848.87.
The circuit court entered a judgment of foreclosure, fixed the period of redemption, and from the judgment so entered the defendants appeal.
Strehlow & Cranston, of Green Bay, for appellants.
Minahan, McCormick & Thiele, of Green Bay, for respondents.
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