Wells v. Green Bay & Miss. Canal Co.

• Decision Date: 20 June 1895
• Citation: 90 Wis. 442,64 N.W. 69
• Parties: WELLS v. GREEN BAY & MISSISSIPPI CANAL CO. ET AL.
• Court: Wisconsin Supreme Court

90 Wis. 442

64 N.W. 69

WELLS

v.GREEN BAY & MISSISSIPPI CANAL CO. ET AL.

Supreme Court of Wisconsin.

June 20, 1895.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Daniel Wells, Jr., against the Green Bay & Mississippi Canal Company and others. Judgment for plaintiff. Defendants appeal. Affirmed.

This action was brought against the corporation defendant and its directors to compel the delivery to the plaintiff of 92 shares of the stock of the company. The amended complaint stated, in substance, that the plaintiff, with Horatio Seymour and others, named, became the purchasers of all the rights, property, and franchises of the Fox & Wisconsin Improvement Company, under and in pursuance of chapter 289, Laws Wis. 1861; chapter 535, Laws 1865; chapter 572, Laws 1866,--which company had been organized under chapter 98 of Laws 1853, at a foreclosure sale of its property and franchises under a certain judgment in the action of Spaulding and others against it and other defendants, rendered February 4, 1864; and that such purchasers, August 15, 1866, under said chapter 289, Laws 1861, became duly incorporated, with the rights, powers, franchises, etc., in said acts specified, under the name of the Green Bay & Mississippi Canal Company, one of the defendants in this action, the capital stock of said company being $1,000,000, divided into 10,000 shares of $100 each, with nine directors for the first year named in said certificate; and, by direction of the court in the foreclosure action, all said property, rights, and franchises were conveyed to the defendant corporation, August 18, 1866. On the 11th of September, 1866, said purchasers executed and sealed an instrument by which they mutually agreed and declared the respective contributions of each to the purchase, and the amount of their respective interests in all the property and franchises of the corporation defendant, from which it appeared that the total contributions were $326,086.30, or 326 shares; the amount of the plaintiff's contributions being $3,275.12, or three shares, equal to 3/326, entitling him to 92 shares of the 10,000 shares of stock, fully paid; that the lands purchased at said sale, and conveyed to the corporation, were apportioned among the said purchasers, and the defendant company, December 10, 1866, conveyed to the plaintiff his 3/326 part; that, pursuant to the instrument of September 11, 1866, the company had issued its certificates of shares of said stock, according to such allotment, but had not issued any to the plaintiff, though he was entitled to 92 shares, then in the hands of the company; that, early in 1890, the plaintiff learned that the company denied that he owned any interest in it, and that A. L. Smith, treasurer, and one of the directors, claimed to own said 92 shares; and that he had paid the company $1,380 for them, being the amount of 15 per cent. thereon, claimed to be due to the company, and was attempting to get a certificate of said shares issued to himself; that plaintiff had never sold or assigned his interest to Smith, and that Smith had, in fact, never paid anything for it; that in 1890 the plaintiff learned that, by reason of $150,000 paid to the company by the United States for the transfer to it of certain rights by the company, there was a dividend of 15 per cent. upon the stock of the company; and that the moneys claimed to have been paid by Smith to the company were, in fact, the plaintiff's share of said dividend. The plaintiff alleged an offer or tender, before action, of any sum due and unpaid on said 92 shares, and demanded a certificate therefor, but the defendant and its directors refused to accept said offer, or any money on that account, and denied that he was entitled to said shares, or had any interest in them, claiming that they had been forfeited; that the plaintiff had not been informed of such claim until 1890 (and denied the same), or that his right thereto had been cut off; that no certificates had been issued therefor to any one else; and that, while he denied there was any sum legally owing and unpaid upon his interest in said company, he was ready and willing to pay whatever balance, if any should be due, so as to make his contributions the same as had been made by all others to whom stock had been issued, on being informed of the amount. He prayed that he might be adjudged the owner of 3/326 interest in said company, and that defendant and its officers be required to recognize his rights as such, and that the court ascertain any sum he should pay to the company, and upon payment thereof the company be required to deliver a proper certificate of said shares of stock, etc. The answer admitted that the plaintiff became entitled to 3/326 of the property, rights, and franchises of the company, including its stock; and had declared, December 11, 1866, that he was entitled, for his proportion, to 92 shares, in case he chose to pay for and take the same; that he chose not to do so; that the full amount to be paid by various purchasers was 20 per cent. of the par value of the stock, and a call therefor was made December 31, 1868, and notice given to the plaintiff and others, before March 4, 1869, which the plaintiff had refused to pay up to May 9, 1890; that, for that reason, he was not entitled to any portion of the money received in 1872 from the United States, and said shares had never been issued, but remained in the treasury of the company. And the answer denied that the plaintiff was or had been the owner thereof, but admitted the offer which the plaintiff alleged that he had made, to pay, etc.; that the defendant company and its directors had relied on his refusal to pay for his stock, and his right to it had been forfeited. It was alleged that an assessment was made on the stock of the company of 20 per cent. in 1866, to maintain its water way and improvements; that the burdens of the company were so great that its stock was practically valueless, and, prior to the year 1890, was not at any time equal in value to the assessments which had been made on it; that, from 1872 to 1888, it was not worth in the market or for sale the cost of the same to those who had paid 20 per cent. of its par value, after crediting it with the amount received from the United States as the purchase price of the water way; that in 1888 the stock became valuable on account of the development of manufacturing by the water power in the Fox river, brought about by the stockholders of the company, and became, for the first time, of a value equal to its cost; that this was the result of many years of management and experiment, with doubtful outlook, by the stockholders, and the plaintiff then sought to take advantage of it, and of their efforts, ventures, and labors. It was insisted that the plaintiff was estopped from claiming the stock, and that, whatever cause of action he ever had accrued prior to March 4, 1869; that the present action was commenced in December, 1890, and his claim in the premises was barred by the statute of limitations, particularly by Rev. St. § 4221, subd. 4. The defendant company, as well as the directors, had demurred to the amended complaint, on the grounds (1) that the plaintiff had a perfect remedy at law; (2) that it did not state facts sufficient to constitute a cause of action; (3) that the action was barred by the statute referred to, and by subdivision 3, § 4222. The demurrers were stricken out as frivolous, and the directors did not answer over. It was found by the court that all the allegations of the plaintiff's amended complaint had been proved; that the property purchased by him and his associates, and conveyed to them by the defendant company, had cost, exclusive of lands granted by the state and the United States, over $1,000,000, and that the capital stock in the company, of $1,000,000, was apportioned September 11, 1866, according to the proportionate share of money paid by each of them to make the purchase, and 92 full-paid shares were assigned to and became the property of the plaintiff, but no certificate thereof had been issued; that the company in 1872 sold and transferred to the United States water ways, etc., for $155,000, $150,000 of which was apportioned in dividends to stockholders; the plaintiff's pro rata share, being $1,380, had not been paid him, but was retained by the company, of which he had no notice until 1890; that the directors made four assessments, of 5 per cent. each, on his stock, December 4, 1866, August 2, 1867, April 16, 1868, and December 31, 1868; that all of the stockholders, except the plaintiff and one Binninger, settled with and paid their assessments, and May 13, 1890, A. L. Smith, who was the assignee of Binninger's 122 shares, settled with the company for the said assessments thereon until then unpaid, by paying the balance due for said assessments over and above the amount received from the United States, charging interest from the time when they were made, respectively, the balance being $1,772.05, whereupon the company issued to said Smith a certificate of stock for said 122 shares full paid; that, accordingly, the amount equitably due the company from the plaintiff on said assessments, on the 1st of May, 1890, over...