Port Edwards, C. & N. Ry. Co. v. Arpin

• Decision Date: 29 September 1891
• Citation: 80 Wis. 214,49 N.W. 828
• Court: Wisconsin Supreme Court
• Parties: PORT EDWARDS, C. & N. RY. CO. v. ARPIN.

80 Wis. 214

49 N.W. 828

PORT EDWARDS, C. & N. RY. CO.

v.ARPIN.

Supreme Court of Wisconsin.

Sept. 29, 1891.

Appeal from circuit court, Wood county; CHARLES M. WEBB, Judge.

Action by the Port Edwards, Centralia & Northern Railway Company against John Arpin for an assessment on his stock in the company. From an order striking out a general demurrer to the complaint as frivolous, defendant appeals. Affirmed.

This appeal is from an order striking out a general demurrer to the complaint as frivolous. The order grants defendant leave to answer on the usual terms. The substance of the complaint to which the demurrer was interposed is correctly and sufficiently stated by counsel for plaintiff in their brief substantially as follows: The complaint alleges the incorporation and organization of plaintiff company under chapter 87, Rev. St., at the times thereinafter mentioned, and that it was then, and for more than six months last past has been, engaged in the construction of its line of railroad; that the authorized capital stock of plaintiff at the time of its incorporation was $200,000, divided into 2,000 shares, of $100 each, and that afterwards its articles of organization were duly amended, increasing the capital stock thereof to $300,000, divided into 3,000 shares, of $100 each; that defendant was one of the incorporators of plaintiff company, and one of the subscribers to the original articles of organization, wherein and whereby he subscribed for and agreed to take 50 shares of its capital stock at the par value of $100 for each share, and agreed to pay plaintiff therefor the sum of $5,000 in the manner and in such installments as the board of directors of the plaintiff should require the same to be paid; that defendant was also one of the board of directors named in said articles of organization who should manage its affairs for the first year, and continued to act as such from the time of the organization of said company (about January 20, 1890,) to January 13, 1891; that soon after its organization plaintiff began purchasing the right of way and depot grounds for its line of railroad, and in the month of June, 1890, began its grading and construction; that the entire line thereof is now graded, bridged, tied, and ironed to a sufficient extent to allow the running of light trains thereon, and that the complete balasting and tying of said road-bed will be finished during the present spring; that, for the purpose of paying for such right of way, depot grounds, and other expenses, the board of directors, including the defendant, from time to time, and prior to September 4, 1890, made assessments and calls for payments on the stock subscriptions of the defendant and other subscribers, to the amount of 60 per cent. thereof, and that defendant had paid thereon, prior to September 4, 1890, the sum of $1,750, and no more, leaving the sum of $1,250 still due and unpaid on said assessment of 60 per cent.; that on said September 4, 1890, at a regular meeting of the board at which defendant was present and acting as a director, a resolution was unanimously adopted by said board that all stockholders in arrears be required to pay the full sum of 60 per cent. upon the capital stock subscribed for, which had not theretofore been paid, on or before November 10, 1890, and also making an assessment of the remaining 40 per cent. of said stock subscriptions, to be paid to plaintiff's treasurer on or before November 10, 1890; that at the time said resolutions were adopted the defendant was, and still is, the owner of said 50 shares of stock, and that there was due and owing to plaintiff thereon the sum of $3,250. The complaint then alleges due service of notice of said assessments upon the defendant and other delinquent subscribers, and his failure to pay said assessments; that at a meeting of said board held November 20, 1890, at which all the directors, including defendant, were present, it was resolved by said board to bring actions against each of the stockholders then in default, among whom was defendant; that said resolution is still in full force and effect; that defendant has refused to pay said assessments, or any part thereof, except the sum of...