Smith v. Lingelbach

• Decision Date: 09 May 1922
• Citation: 187 N.W. 1007,177 Wis. 170
• Parties: SMITH v. LINGELBACH.
• Court: Wisconsin Supreme Court

177 Wis. 170

187 N.W. 1007

SMITH

v.LINGELBACH.

Supreme Court of Wisconsin.

May 9, 1922.

Appeal from Circuit Court, Oconto County; William B. Quinlan, Judge.

Action by Ella N. Smith against F. J. Lingelbach, administrator of the estate of George Beyer, deceased. Judgment for plaintiff, and defendant appeals. Affirmed.

Contract. The complaint alleges that the plaintiff and defendant entered into an agreement as follows:

“For value received Ella N. Smith, of Oconto, Wisconsin, hereby agrees to sell, and for value received George Beyer, of Oconto, Wisconsin, hereby agrees to buy, one hundred fifty-four (154) shares of Oconto National Bank Stock at price of $135.00 a share on or before September 5, 1919.

Witness our hands and seals this 7th day of July, 1919, at Oconto, Wisconsin.

Ella N. Smith. [Seal.]

George Beyer. [Seal.]”

The complaint alleges that the plaintiff has at all times been ready and willing to perform the contract on her part; that the defendant refused to accept the stock on September 5, 1919; that tender thereof was made to the defendant, and the plaintiff is now ready and willing to deliver the stock pursuant to the contract and demands judgment for $20,790, with interest and costs.

The answer alleges that the signature of the defendant was induced by fraud; that the defendant then and there relied upon false representations made to him, and was thereby induced to execute and deliver the instrument and not otherwise.

The answer further alleges that the plaintiff did not own 154 shares of stock in the Oconto National Bank, but in truth and in fact was only the owner of 144 shares.

The answer further alleges there was no consideration and contains a general denial.

Upon the trial it appeared without dispute that the contract in question was signed by the defendant, and the only contested question of fact related to the reading of the contract by Mr. Beyer before signing it. This issue was submitted to the jury upon a special verdict, and the jury found George Beyer did read the instrument in question before he signed it. There was judgment for the plaintiff, from which the defendant appeals.

Classon & Whitcomb, of Oconto, for appellant.

Classon & O'Kelliher, of Oconto, for respondent.

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

The case is argued here upon both sides as if the rights of the parties were to be determined pursuant to the provisions of the Uniform Sales Act (Laws 1911, c. 549), and special reference is made to sections 1684t19, 1684t42, 1684t63, and 1684t64.

After the trial and before the case was presented here the defendant died, and the action was revived against F. J. Lingelbach, the administrator of his estate. The contention of the defendant is that the action is one for damages, that no damages were proven, and that the plaintiff cannot maintain an action for the purchase price, but that a recovery, if any, must be limited to the difference between the market value of the stock and the contract price.

[1] We shall first consider the application of the Uniform Sales Act. That act by its terms applies only to goods and documents of title to goods. Goods include “all chattels personal other than things in action and money.” Section 1684t76.

While certificates of stock are not strictly choses in action, they have been repeatedly so classified. 14 Corpus Juris, 389, par. 512, and cases cited; First Nat. Bank of Richmond v. Holland, 99 Va. 495, 39 S. E. 126, 55 L. R. A. 155, 86 Am. St. Rep. 898.

A document of title to goods is by the act said to include “any bill of lading, dock warrant, warehouse receipt or order for the delivery of goods or any other document used in the ordinary course of business in the sale or transfer of goods,” etc. Section 1684t76.

The Uniform Sales Act does not include within its provision certificates of stock. Millard v. Green, 94 Conn. 597, 110 Atl. 177, 9 A. L. R. 1610, at page 1617.

In addition to the fact that the Uniform Sales Act by its terms excluded certificates of stock, there is the additional consideration that in 1913, two years after the adoption of the Uniform Sales Act, the Legislature adopted the Uniform Stock Transfer Act (section 1751n1 to 1751n23), which by its terms relates specifically to the transfer of shares of stock in a corporation, and would therefore seem to be exclusive of the Uniform Sales Act.

The case was tried apparently without reference to the Uniform Stock Transfer Act, although it is referred to in the brief of the respondent here. The Uniform Stock Transfer Act applies by its terms only to certificates issued after the taking effect of the act. A careful examination of the record fails to disclose the date upon which the certificates of stock in this case were issued to the plaintiff.

The Uniform Stock Transfer Act (section 1751n10, Wis....