Sauerhering v. Rueping

• Decision Date: 07 January 1909
• Citation: 137 Wis. 407,119 N.W. 184
• Parties: SAUERHERING v. RUEPING ET AL.
• Court: Wisconsin Supreme Court

137 Wis. 407

119 N.W. 184

SAUERHERING

v.RUEPING ET AL.

Supreme Court of Wisconsin.

Jan. 5, 1909.

Dissenting Opinion Jan. 7, 1909.

Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.

Action by D. Sauerhering against F. J. Rueping and another. From a judgment for plaintiff, defendants appealed. Reversed and remanded, with directions to dismiss both the complaint and counterclaim.

This action was brought to recover $3,000. The complaint charges that on the 29th day of November, 1905, plaintiff and defendants entered into an agreement, by the terms of which defendants sold to plaintiff a one-half interest in the Wisconsin Health & Accident Company, a corporation of the city of Fond du Lac, and agreed to change the principal office of said company from Fond du Lac to Wausau, Wis.; that plaintiff was to pay for such interest $3,000, $2,000 in cash and $1,000 in a promissory note payable in 10 days, which note was executed and delivered and the $2,000 paid. It was further alleged that said corporation was a mutual company organized under the laws of Wisconsin and authorized to do business upon the assessment plan, and had no capital stock, and that defendants were president and vice president, respectively, of said company; that the agreement was void for the reason that defendants were not the owners of the company, and had no interest therein which they could sell to plaintiff, and that there was no consideration for the agreement; that shortly after the transaction plaintiff discovered that defendants had no interest and no right to convey any interest in said corporation, and demanded return of his money. The defendants denied that any agreement was made on the 29th day of November, 1905, and denied the terms of the agreement as alleged in the complaint, but set up that an agreement was made on the 6th day of January, 1906, the true intent and meaning of which was that defendants agreed to, and did, convey to the plaintiff an interest in certain claims and indebtedness which defendants owned against the Wisconsin Health & Accident Company for moneys advanced to said company and coming from it for services rendered and otherwise, and that defendants further agreed to assist in procuring the resignation of directors of said corporation and the appointment of others in their stead, and to assist in the removal of the principal office of said company from the city of Fond du Lac to the city of Wausau, and to permit the plaintiff to attach to policies of insurance thereafter to be issued and theretofore issued a stipulation to the effect that the assured might assign to St. Mary's Hospital, at Wausau, any liabilities or moneys that might be owing to said assured by reason of policies of insurance, the same being for the benefit of plaintiff, he being at the time a practicing physician, in consideration whereof plaintiff agreed to pay said $3,000. The answer specifically denies that defendants represented or agreed that they would sell a one-half interest in said company, except as in the manner set up in their answer. The defendants set up a counterclaim, demanding judgment on the $1,000 note, and that the complaint be dismissed. Plaintiff replied to the counterclaim, admitting the execution of the note, and denying the other material allegations thereof, and setting up affirmative matter charging want of consideration. The jury returned the following verdict: “(1) Did the parties agree on November 29, 1905, that the defendants sold and would transfer a half interest in the Wisconsin Health & Accident Company to the plaintiff and to effect a removal of the principal office of said company to Wausau in consideration for the $2,000 paid by the plaintiff to the defendants? Answer: Yes. (2) Did the parties agree on January 6, 1906, that in consideration of the payment by the plaintiff of $2,000, and the further payment by him of $1,000 as evidenced by his note to the defendants, that the defendants transferred to the plaintiff their claims against said company for money advanced and services rendered by them to said company, and would assist in effecting a removal of the principal office of said company to Wausau? Answer: No.” Plaintiff moved for judgment upon the verdict, and the defendants moved that the answers in the verdict be changed, and for judgment notwithstanding the verdict, and for a new trial. The several motions of defendants were denied, and the counterclaim dismissed, and the motion of the plaintiff granted and judgment rendered in his favor for the sum of $2,196, together with $90.92 cost, from which judgment this appeal was taken.

Marshall and Barnes, JJ., dissenting.

Doyle & Hardgrove, for appellants.

Brown Pradt, Genrich & Anderson (W. H. Mylrea, of counsel), for respondent.

KERWIN, J. (after stating the facts as above).

The jury found that the parties agreed November 29, 1905, that the defendants would sell and transfer a half interest in the Wisconsin Health & Accident Company to the plaintiff and affect the removal of the principal office of such company to Wausau, Wis., in consideration of $2,000 paid by plaintiff to defendants. The evidence shows without substantial dispute that the defendants agreed to transfer their claims against the company for services performed and money expended in the organization of the company, and that they would also secure the removal of the principal office of such company from Fond du Lac to Wausau, Wis., and make certain changes in the officers of such company by procuring the resignation of directors and the election of others in their stead; that this scheme was carried out to the extent of causing four directors to resign, and the election, or attempted election, of four others named by the plaintiff in their respective places; that the general management of the company was turned over to the plaintiff, whose place of business was Wausau, Wis., he being a practicing physician there and desirous of operating said Wisconsin Health & Accident Company in connection with his hospital work at Wausau, and for his own personal interest; that he advertised the company at Wausau, Wis., and manipulated it in his own interest from the time of the agreement, November 29, 1905, down to about the time of the commencement of this action, a period of more than two months. It is further established by the evidence that on January 6, 1906, the parties met in furtherance of the scheme, and the plaintiff, in addition to the $2,000 paid November 29, 1905, executed and delivered to the defendants his promissory note for $1,000 payable in 10 days from date as part consideration on his part for an interest in or control of the company and transfer of the principal office to Wausau. This note was not paid when it became due; the plaintiff claiming that the defendants had not promptly complied with their...