State ex rel. Dep't of Agric. v. Badger Dairy, Inc.

• Decision Date: 14 April 1944
• Citation: 245 Wis. 229,14 N.W.2d 34
• Parties: STATE ex rel. DEPARTMENT OF AGRICULTURE AND MARKETS v. BADGER DAIRY, Inc., et al.
• Court: Wisconsin Supreme Court

245 Wis. 229

14 N.W.2d 34

STATE ex rel. DEPARTMENT OF AGRICULTURE AND MARKETS

v.BADGER DAIRY, Inc., et al.

Supreme Court of Wisconsin.

April 14, 1944.

Appeal from a judgment of the Circuit Court for Dane County; Alvin C. Reis, Judge.

Affirmed.

Action commenced May 17, 1938, by State of Wisconsin on the relation of Department of Agriculture and Markets, plaintiff and respondent, against Badger Dairy, Inc., Badger Dairy Company, Capitol Dairy Company, Madison Milk Producers' Cooperative Association, Wisconsin corporations, and Sam Lerner, defendants, Roy C. Heggestad, defendant and appellant, and Madison Milk Marketing Cooperative, interpleaded defendant and respondent, for a declaratory judgment establishing the rights of the parties in a bond deposited with the Department of Agriculture and Markets. Judgment was entered December 6, 1943, impressing the bond with a lien in favor of Madison Milk Marketing Cooperative, from which defendant Roy C. Heggestad appeals.

Prior to December 15, 1936, Whiting Dairy Company, a corporation, was engaged in the business of retail distribution of milk in the city of Madison. At the close of business it was indebted to the Madison Milk Marketing Cooperative for milk delivered in a sum exceeding $1,600. The equipment of Whiting Dairy Company was acquired by Badger Dairy, Inc., a newly organized corporation, which continued the business of retail distribution of milk. December 15, 1936, in order to secure a milk dealer's license for Badger Dairy, Inc., Roy C. Heggestad, its secretary, deposited with the Department of Agriculture and Markets of the state of Wisconsin, a federal farm mortgage bond in the sum of $1,000 to secure the payment to milk producers delivering milk to Badger Dairy, Inc., pursuant to the provisions of sec. 100.04(11a), Stats.1935. Thereafter on January 20, 1937, Badger Dairy Company, which by stipulation is agreed to be Badger Dairy, Inc., and which for convenience will be referred to as ‘Dairy,’ and Madison Milk Producers Cooperative Association, by stipulation agreed to be Madison Milk Marketing Cooperative, which for convenience will be referred to as ‘Cooperative,’ entered into a written agreement whereby Dairy agreed to leave on deposit with the Department of Agriculture and Markets the farm mortgage bond then on deposit with the Department, which is the farm mortgage bond now in dispute, or its cash equivalent, for the sole benefit of Cooperative and its members. In the next paragraph Dairy assumed and agreed to pay to Cooperative, for the benefit of its members, all obligations of Whiting Dairy Company, which it was agreed amounted to approximately $1,600, and agreed to pay the same at the rate of $50 per month beginning April 1, 1937, including interest at six per cent payable annually from the first payment date. Provision was then made for the time of payment of milk delivered, and Dairy agreed to increase the amount of the bond with the Department of Agriculture and Markets if it was not sufficient to cover the milk furnished between pay days. In consideration of the foregoing promises on the part of Dairy, Cooperative agreed that it, or its members or affiliated organizations, would furnish and supply to Dairy all milk for normal city consumption that it required plus any additional amount mutually agreed upon, conditioned that if Dairy failed to make payment for milk on the date or dates agreed Cooperative was not required to furnish any further milk. It was further provided that the agreement was to be in force for a period of six months and have no force and effect thereafter, except that the provision whereby Dairy assumed and agreed to pay the obligations of Whiting Dairy Company was not to be terminated and payments were to continue as specified in the agreement. The agreement was executed on behalf of Dairy by Gertrude I. Heggestad, president, and Roy C. Heggestad, secretary, and on behalf of Cooperative by its proper officers. Milk was furnished to Dairy under this contract until April 1, 1937, when it discontinued business. Dairy paid for all milk furnished under the contract but paid no part of the obligations of Whiting Dairy Company which it had assumed. The farm mortgage bond deposited with the Department of Agriculture and Markets was the individual property of Roy C. Heggestad, secretary of Dairy.

June 6, 1942, summary judgment was entered on motion of Cooperative, which was subsequently vacated on motion of defendant Heggestad for the reason that proper notice of motion had not been served. Respondent Cooperative seeks a review of this order. In March, 1943, by stipulation of parties, it was agreed that the record made in the...