Werner v. Riemer

• Decision Date: 11 October 1949
• Citation: 39 N.W.2d 457,255 Wis. 386
• Parties: WERNER, v. RIEMER et al.
• Court: Wisconsin Supreme Court

Page 457

39 N.W.2d 457

255 Wis. 386

WERNER, v. RIEMER et al.

Supreme Court of Wisconsin.

Oct. 11, 1949.

Rehearing Denied Nov. 29, 1949.

See 39 N.W.2d 917.

Dougherty, Arnold & Waters, Milwaukee (Brooke Tibbs, Milwaukee, of counsel), for appellant.

Fred R. Wright, Milwaukee (William H. Churchill, Milwaukee, of counsel, for respondents.

HUGHES, Justice.

Counsel for appellant claims that his appeal is from a summary judgment dismissing his original complaint upon its merits and from a summary judgment dismissing his amended complaint upon its merits and from an order denying appellant's motion for permission to prepare and file a proposed second amended complaint.

The summary judgment entered herein by the circuit court for Milwaukee county on the 14th day of February, 1949 dismisses the amended complaint upon its merits. There is an order dated the same day denying appellant's motion for permission to file additional amendments to his amended complaint. There is no order or judgment of the trial court with respect to the original complaint. It is obvious that none was necessary. When the appellant elected to file an amended complaint, the complaint originally filed was supplanted.

When the trial court filed its decision indicating how it would rule upon the motion for summary judgment and the appellant's objections thereto, the appellant requested permission to again amend its complaint. It appearing to the satisfaction of the court that no new matter was offered in the proposed amendments which would establish a cause of action, this request was denied and the summary judgment dismissing the amended complaint was entered. The only effective order is the order for summary judgment dismissing the amended complaint. The only action of the trial court appealable herein is the summary judgment dismissing the amended complaint upon its merits.

Three separate lawsuits were pending between the appellant and respondents in 1945 at the time the sale of the stock was made. The sale was made in connection with settlement and dismissal of those three actions. The summary judgment of dismissal in the instant action was ordered because the trial court concluded that the fraud complained of in the instant case was the identical fraud complained of in the course of disposition of the previous suits. Because we are of the opinion that the trial court not only was correct in its conclusion but that its opinion fully sets out the facts and the law which made its decision necessary, we reprint its decision in full and adopt it as the opinion of this court:

This is an action to recover damages for fraud in the purchase by defendant, Bridge Company, from the plaintiff of 64 shares of the capital stock of said company, in that defendants on the 31st day of December, 1945, falsely represented that said shares of stock 'were not reasonably worth more than Five Hundred Dollars ($500.00) per share', whereas defendants had knowledge that at said time the value of said stock was in excess of $2,000.00 per share. Further it is alleged that 'prior to the disposition of said stock, the plaintiff attempted to obtain an audit of the books of said defendant corporation for the purpose of determining the value of said shares of stock, but the defendants refused to permit the plaintiff to conduct such audit and deliberately withheld from the plaintiff information which was necessary in order for the plaintiff to be apprised of the true value of said stock'.

Upon the motion of the defendants for summary judgment, the following facts are established, without dispute:

'1. That the plaintiff was an employee of the company from on or about August 23rd, 1923, until on or about August 15th, 1944; that he was a stockholder of the company from April 4th, 1938, until December 31st, 1945; and, from on or about May 2nd, 1942, until on or about August 15th, 1944, he was an officer, namely, a vice-president, of the company, in charge of sales.'

'2. That, during the period of more than a year next preceding December 31st, 1945, numerous disputes and controversies existed between the plaintiff and the defendants in this action pertaining to various matters concerning the company and its business and affairs, and to the plaintiff's and defendant Riemer's connection therewith. Said disputes were of a serious nature and involved subjects matter which were substantial in amount and important in their consequences, and said parties dealt with each other at arms' length during said time in respect to all of said matters.'

3. On October 28, 1944, an action was brought in the Circuit Court of Waukesha County by Wisconsin Bridge and Iron Company against the plaintiff herein to recover $11,088.97, claimed to be due on an open account.

4. November 2, 1944, the plaintiff herein commenced an action against said Bridge Company (No. 193-405) by service of a summons and accompanying affidavit to enable plaintiff to plead in which the object of the action was stated to be 'for the recovery of moneys due and owing for commissions from the defendant, and as a minority stockholder for the purpose of enforcing his rights as against the defendant and for an accounting.' A garnishment action ancillary thereto was also commenced (File No. 193-334).

5. December 23, 1944, plaintiff began a further action (No. 194-030) against the defendants herein and Joseph A. Schoenecker and Edmund F. Barkow as officers and directors of the company. This action was likewise commenced by summons and affidavit to plead. The object of the action, which the affidavit states is brought by plaintiff as a stockholder of and on behalf of said company was '* * * to recover from the defendants money and property of said corporation misused, misappropriated, and/or illegally expended by them or converted to their own use * * *; to suspend and remove said Arthur L. Riemer, Joseph A. Schoenecker and Edmund F. Barkow as such directors and officers for their gross misconduct in their mismanagement, misuse and illegal disposition of the funds and property of said corporation; for the appointment of a receiver of and for said corporation * * *.'

6. That in the meantime and during the pendency of said actions, numerous motions were made, questions arising upon adverse examinations were certified to the Circuit Courts of Waukesha and Milwaukee County, and numerous conciliation conferences were held in an attempt to settle the matters in dispute.

7. 'February 24, 1945, the parties entered into an arbitration agreement, covering the matters in dispute, as follows: (1) The number of shares of capital stock owned by Werner; (2) The value thereof; (3) The amount of commission due to said Werner for the years 1940, 1941 and 1942; and (4) The sums claimed to be due to the Bridge Company from said Werner. The agreement further recited the pendency of the various actions above set forth. The agreement, after the selection of the arbitrators, proceeds:

'The parties hereto agree to submit to said arbitrators such evidence as said arbitrators may desire concerning said disputes and that said arbitrators shall have the right and authority to hear and determine all matters in dispute between the parties hereto, and that said arbitrators, or a majority of them, after hearing said evidence, shall determine said controversies. * * *

'The report and determination of said differences, disputes and claims shall be made in writing and in triplicate, signed by the arbitrators, or a majority of them, and one delivered or mailed to each of the parties and one filed with the Clerk of the Circuit Court in the above entitled action. Thereafter upon three days' notice by either party to the other, said written report and determination shall be submitted to the Circuit Court of Milwaukee County, in that branch thereof presided over by the Honorable Daniel W. Sullivan, Circuit Judge, for consideration and decision. The decision of said Court shall be final and binding on the respective parties. If said Court shall refuse to approve and adopt said report and determination, the above entitled action and all of said other hereinbefore designated actions shall remain and continue pending in all respects the same as if this agreement had not been entered into.

'If said Court shall approve and adopt said report and determination, judgment shall be entered in the above entitled action as to said commissions, if any, accordingly, and first party agrees to pay and satisfy said judgment forthwith and second party agrees to thereupon execute a satisfaction thereof.

'If said Court shall adopt said report and determination, second party agrees to sell to first party and first party agrees to buy for cash all of said stock at a value and price so determined by said arbitrators, less the amount found due first party from second party, if any, said purchase and sale to be consummated coincident with the payment and satisfaction of said judgment.

'In the event of the adoption of said report and determination by said court, the entry, payment and satisfaction of said judgment and the consummation of the purchase and sale of said stock, as aforesaid, the parties hereto agree to forthwith dismiss on the merits without costs the three other hereinbefore designated pending actions, and at the same time execute and deliver to each other full and complete releases of any and all claims and causes of action to the date of such release.'

The arbitration agreement also provides that Chapter 298, Wis.Stats., shall not be applicable.

8. On April 5, 1945, plaintiff, Werner, gave notice that he thereby revoked the powers of said arbitrators.

9. April 21, 1945, the arbitrators made their award and caused same to be filed in Case No. 193-405 above. The award recites several meetings at which 'all evidence, oral and documentary, as we deemed necessary, pertinent or material concerning said disputes' was submitted and 'full opportunity to present all...