N. Milwaukee Town-Site Co. No. 2 v. Bishop

• Decision Date: 22 June 1899
• Citation: 103 Wis. 492,79 N.W. 785
• Parties: NORTH MILWAUKEE TOWN-SITE CO. NO. 2 v. BISHOP.
• Court: Wisconsin Supreme Court

103 Wis. 492

79 N.W. 785

NORTH MILWAUKEE TOWN-SITE CO. NO. 2

v.BISHOP.

Supreme Court of Wisconsin.

June 22, 1899.

Appeal from superior court, Milwaukee county; George E. Sutherland, Judge.

Action by the North Milwaukee Town-Site Company No. 2 against Frank Bishop, Jr. Judgment for defendant, and plaintiff appeals. Affirmed.

The plaintiff is a corporation. The defendant is the owner of 58 shares of its capital stock, of the par value of $100, upon which assessments to the amount of $54 have been paid. On April 20, 1896, the plaintiff's board of directors adopted the following resolution: “Resolved, that a call be, and hereby is, made upon the unpaid portion of subscription for stock in this company, amounting to $46 per share, the same to be paid thirty days from date, either in cash or by a promise to pay in the form of a land contract or contracts; and when the same shall be paid that the stock shall be shown as full-paid on the books of the company; and the secretary is hereby directed to proceed and use all legal means necessary for the collection of any unpaid portion of said call, and, if any party refuse or neglect to make such payment, proper steps be taken to advertise and foreclose the stock upon which such payment shall not have been made.” At the same time the board passed the following resolution: “Resolved, that the secretary be, and hereby is, instructed to notify the stockholders of this company of said call by mailing to each stockholder a copy of said resolution.” The defendant failed to pay the call so made, and this action was commenced to enforce payment. After hearing the plaintiff's evidence, the court granted a nonsuit. From a judgment for defendant, the plaintiff appeals.Quarles, Spence & Quarles, for appellant.

W. J. Turner, for respondent.

BARDEEN, J. (after stating the facts).

The judgment of nonsuit was justified upon either of two grounds:

1. The proof fails to show a valid call. The resolution of the board of directors provides that the stockholder may pay either in cash or “by a promise to pay in the form of a land contract or contracts.” Just what was intended by the statement quoted is not apparent. Its indefiniteness is sufficient to condemn it. The resolution fails to show at whose option the shareholder may pay in cash or land contract. It prescribes no conditions, and fixes no terms by which either the board of directors or stockholders are to be governed in settlement of the balance due the corporation. Calls of this kind should be uniform in their operation, and not of such a character as to permit the directors to practice favoritism, or act oppressively. Germania Iron-Min. Co. v. King, 94 Wis. 439, 69 N. W. 181. It is not to be understood that a call may not be so made that the shareholder may pay in money or money's worth. The chief requisites are that it should be impartial and uniform, and sufficiently definite to enable the stockholder to comply with its requirements.

2. No proof was made of giving notice of such call according to the by-laws of the corporation. Section 1754, Rev. St. 1898,...