Timme v. Kopmeier

• Decision Date: 14 March 1916
• Parties: TIMME v. KOPMEIER.
• Court: Wisconsin Supreme Court

162 Wis. 571

156 N.W. 961

TIMME

v.KOPMEIER.

Supreme Court of Wisconsin.

March 14, 1916.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Action by Albert F. Timme against John H. Kopmeier. From a judgment for defendant, plaintiff appeals. Affirmed.

This is an action brought to recover the value of 100 shares of stock, on a contract of repurchase of the stock, bought by plaintiff from the Kopmeier Motor Car Company.

The Kopmeier Motor Car Company was incorporated under the laws of the state of Wisconsin in January, 1909, with an authorized capitalization of $50,000. On October 15, 1909, the articles of incorporation were amended and, as amended, authorized an increase of the capital stock from $50,000 to $100,000. Certificates of stock were issued to John H. Kopmeier, Norman J. Kopmeier, Waldemar S. J. Kopmeier and Meta Kopmeier, wife of Waldemar. Norman J. Kopmeier surrendered a portion of his stock in November, 1910. There were three directors of the corporation at this time, John H., Waldemar S. J., and Norman J. Kopmeier. The plaintiff entered the employ of the Kopmeier Motor Car Company about October 1, 1909, as manager, and very shortly after this date he expressed a desire to purchase some stock in the corporation. At a meeting of the directors and Mr. Timme in November, 1910, it was agreed that the corporation should sell plaintiff 100 shares of stock at the par value thereof, namely $10,000. He was also made a director. At the same time, and as a part of the transaction, plaintiff and defendant entered into the following contract:

“This agreement, made and entered into this 5th day of December, 1910, between A. F. Timme, of the city of Milwaukee, Milwaukee county, Wisconsin, party of the first part, and John H. Kopmeier, of the same place, party of the second part, witnesseth:

Whereas, the party of the first part is now in the employ, as manager, from month to month, of Kopmeier Motor Car Co., a corporation organized and existing under and by virtue of the laws of the state of Wisconsin, and has, on or about the 1st day of November, 1910, purchased from said company one hundred (100) shares of the capital stock thereof, for the price of one hundred dollars ($100.00) per share, for the purpose of increasing the capital of said company; and,

Whereas, the party of the second part is a stockholder of said company and desirous of increasing the capital of said company to the amount of stock purchased by the party of the first part:

Now, therefore, the parties hereto agree as follows:

First. In consideration of the purchase and sale by said company to the party of the first part of said stock, and in consideration of one dollar and other good and valuable considerations, the receipt whereof is hereby acknowledged, party of the first part does hereby agree to and with the party of the second part that if, at any time while said party of the first part shall remain in the employ of said company, he should desire to sell said stock, option is hereby given to the party of the second part to purchase the same and to pay to the party of the first part therefor the full face or par value of said stock, plus pro rata share of accumulated profits.

Second. The party of the first part hereby agrees to and with the party of the second part that if his employment with said company is discontinued, either by mutual agreement of the said company and the party of the first part, or by the death of the party of the first part, or by the act of either said party of the first part or said company, or by operation of law, or for any reason whatsoever, the party of the first part shall sell to, and the party of the second part shall purchase, all of said stock and pay therefor the full face or par value thereof plus pro rata share of accumulated profits of said company.

Third. It is mutually agreed, by and between the parties hereto, that all of the terms, covenants and conditions of this contract shall inure and bind the respective heirs, executors and administrators of the respective parties.

In witness whereof the parties hereto have hereunto set their respective hands and seals in duplicate at the city of Milwaukee, Milwaukee county, Wisconsin, the day and year first above written.

A. F. Timme.

John H. Kopmeier.”

“Witnessed by John T. Zilisch, W. J. Kopmeier.”

At the time this contract was made and executed the defendant was a director of the company, and continued to hold this office up to the time this action was commenced. In August, 1912, plaintiff resigned from his position with the Kopmeier Motor Car Company and demanded of defendant that he repurchase the stock in accordance with the above agreement. Defendant has refused to repurchase the stock as provided in the contract.

The trial court found that Meta Kopmeier, wife of Waldemar Kopmeier and a stockholder, knew nothing of this transaction and that she did not ratify it, and declared the agreement void. Judgment was entered dismissing plaintiff's complaint, and from such judgment this appeal is taken.

Lynn S. Pease, of Milwaukee, for appellant.

Henry J. Killilea, of Milwaukee, for respondent.

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

[1] The trial court found that Meta Kopmeier had no notice or knowledge of the making of the contract between plaintiff and defendant for the repurchase of the stock by defendant from plaintiff, and that she at no time consented thereto or ratified it. We have examined the evidence and find that plaintiff's evidence and that of Meta Kopmeier is in sharp conflict on the point as to whether or not she had knowledge of the contract between plaintiff and defendant. It is contended that the facts and circumstances show that Mrs. Kopmeier tacitly consented and acquiesced in having her husband represent her interests as a stockholder at corporate meetings and in the transaction of its business. If such consent and acquiescence were not positively refuted by other evidence in the case we would be disposed to accede to this claim. But Meta Kopmeier testifies positively that she had no information of the transaction and this contract; that although she made diligent effort to ascertain about the affairs of the company from her husband and others she...