Schoenburg v. Klapperich

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtMARTIN
Citation300 N.W. 237,239 Wis. 144
Decision Date02 December 1941
PartiesSCHOENBURG et al. v. KLAPPERICH et al.

239 Wis. 144
300 N.W. 237

SCHOENBURG et al.
v.
KLAPPERICH et al.

Supreme Court of Wisconsin.

Oct. 7, 1941.
Rehearing Denied Dec. 2, 1941.


Appeal from several orders of the Circuit Court for Marathon County; George J. Leicht, Circuit Judge.

Action by Phyllis Schoenburg and another, copartners, unsecured creditors of Associated Buyers Cooperative, Inc., an incorporated cooperative association, against E. H. Klapperich and others, who were the incorporators, members and stockholders of the association, to enforce their claim against such defendants under St.1939, § 180.06(4). From orders sustaining defendants' demurrers to the complaint, the plaintiffs appeal-[By Editorial Staff.]

Orders reversed and cause remanded, with directions.

[300 N.W. 238]

Action commenced July 25, 1940, by Phyllis Schoenburg and M. L. Price, co-partners, unsecured creditors of Associated Buyers Cooperative, Inc., an incorporated cooperative association, of which the defendants, the respondents herein, and others are the incorporators, members, and stockholders, to enforce their claim as against the individual defendants under section 180.06(4), Stats. Defendants demurred to the complaint and from orders sustaining those demurrers, plaintiffs appeal.

The plaintiffs Schoenburg and Price are co-partners engaged in the wholesale fruit and produce business in Chicago, Illinois. The defendants, retail grocers in Wisconsin, are the incorporators, members, and stockholders of the cooperative association, Associated Buyers Cooperative, Inc., of Marshfield, Wisconsin. This corporation was organized under chapter 185, Wis.Stats. It has capital stock of which each defendant owns one or more shares. It was engaged in the business of purchasing fruit and produce at wholesale for sale and distribution for the benefit of and to the defendants.

Before the corporation had 50% of its capital stock subscribed and 20% of its authorized capital stock actually paid in it transacted business with others than its members, among them the plaintiffs, and contracted the obligation which is the basis for this action. Subsequently the corporation was found to be insolvent by the county court of Wood County and a receiver was appointed. Upon refusal of the individual defendants to comply with plaintiffs' demands for payment this action was brought.

Several of the defendants demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrers were sustained by the trial court on the ground that the provisions of section 180.06(4), Stats., forbidding the transaction of business with others than members until at least 50% of the authorized capital stock has been subscribed and 20% actually paid in, did not apply to cooperatives organized under chapter 185, Wis.Stats., and that therefore defendants were not personally liable to plaintiffs.

William E. Kaplan, of Wausau, and Theo. W. Brazeau, of Wisconsin Rapids, for appellants.

Reginald I. Kenney, of Milwaukee, for respondents.


MARTIN, Justice.

This appeal presents the single question: Are the incorporators and stockholders of a stock cooperative association, incorporated under chapter 185, Wis.Stats., subject to the provisions of section 180.06(4), Stats.?

Section 180.06(4), Stats., forbids a corporation to transact business with any others than its members until one-half of its capital stock shall have been subscribed and one-fifth of its authorized capital actually paid in. If Associated Buyers Co-operative, Inc., is subject to the provisions of section 180.06(4), Stats., the defendants

[300 N.W. 239]

are liable to the plaintiffs and the complaint states a good cause of action.

[1] Fundamentally, a cooperative association organized under chapter 185, Stats., with capital stock is a corporation; but the legislature has seen fit to set up a separate chapter of laws relative to its organization, powers, functions, and dissolution. Chapter 185, Stats. Section 185.01, Stats., defines the word ‘association’ as meaning a corporation organized under chapter 185, Stats. Section 185.08(1), Stats., provides: “An association created under sections 185.01 to 185.22, inclusive, shall have all the powers of a corporation organized under section 180.02, subject to the provisions of...

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4 practice notes
  • Hernandez v. Frohmiller, 5202
    • United States
    • Supreme Court of Arizona
    • April 4, 1949
    ...Section 60-106, A.C.A.1939. The Supreme Court may take judicial notice of the records of the secretary of state, Schoenburg v. Klapperich, 239 Wis. 144, 300 N.W. 237; Riggs v. Brock, 208 Ark. 1050, 189 S.W.2d 367, and it appears therefrom that in certifying this measure the secretary of sta......
  • Saxon Homestead Creamery, LLC v. GreenStone Farm Credit Servs., No. 2014AP1781.
    • United States
    • Court of Appeals of Wisconsin
    • January 14, 2015
    ...constitutes as much a part of the contract between the organization and the members as does the by-laws); Schoenburg v. Klapperich, 239 Wis. 144, 150, 300 N.W. 237 (1941) (law of corporations applies to cooperatives to the extent not inconsistent with statutes); O'Leary v. Board of Dirs., H......
  • State ex rel. Neelen v. Lucas
    • United States
    • United States State Supreme Court of Wisconsin
    • June 2, 1964
    ...(1912), 148 Wis. 427, 435, 134 N.W. 841; Dumore Co. v. Smader (1944), 245 Wis. 300, 302, 13 N.W.2d 915; Schoenburg v. Klapperich (1941), 239 Wis. 144, 148, 300 N.W. 237. 8 Estate of Spooner (1920), 172 Wis. 174, 179, 177 N.W. 598; State ex rel. Thieme v. Gregory (1930), 202 Wis. 326, 328, 2......
  • Bowe v. Agri-Supply Co-op., AGRI-SUPPLY
    • United States
    • Court of Appeals of Wisconsin
    • November 17, 1992
    ...laws relating to corporations apply unless inconsistent with statutory provisions particular to cooperatives. Schoenburg v. Klapperich, 239 Wis. 144, 300 N.W. 237 (1941). Bylaws and articles of incorporation form a binding contract between members of a corporation. O'Leary v. Howard Young M......
4 cases
  • Hernandez v. Frohmiller, 5202
    • United States
    • Supreme Court of Arizona
    • April 4, 1949
    ...Section 60-106, A.C.A.1939. The Supreme Court may take judicial notice of the records of the secretary of state, Schoenburg v. Klapperich, 239 Wis. 144, 300 N.W. 237; Riggs v. Brock, 208 Ark. 1050, 189 S.W.2d 367, and it appears therefrom that in certifying this measure the secretary of sta......
  • Saxon Homestead Creamery, LLC v. GreenStone Farm Credit Servs., No. 2014AP1781.
    • United States
    • Court of Appeals of Wisconsin
    • January 14, 2015
    ...constitutes as much a part of the contract between the organization and the members as does the by-laws); Schoenburg v. Klapperich, 239 Wis. 144, 150, 300 N.W. 237 (1941) (law of corporations applies to cooperatives to the extent not inconsistent with statutes); O'Leary v. Board of Dirs., H......
  • State ex rel. Neelen v. Lucas
    • United States
    • United States State Supreme Court of Wisconsin
    • June 2, 1964
    ...(1912), 148 Wis. 427, 435, 134 N.W. 841; Dumore Co. v. Smader (1944), 245 Wis. 300, 302, 13 N.W.2d 915; Schoenburg v. Klapperich (1941), 239 Wis. 144, 148, 300 N.W. 237. 8 Estate of Spooner (1920), 172 Wis. 174, 179, 177 N.W. 598; State ex rel. Thieme v. Gregory (1930), 202 Wis. 326, 328, 2......
  • Bowe v. Agri-Supply Co-op., AGRI-SUPPLY
    • United States
    • Court of Appeals of Wisconsin
    • November 17, 1992
    ...laws relating to corporations apply unless inconsistent with statutory provisions particular to cooperatives. Schoenburg v. Klapperich, 239 Wis. 144, 300 N.W. 237 (1941). Bylaws and articles of incorporation form a binding contract between members of a corporation. O'Leary v. Howard Young M......

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