Wisconsin River Lumber Co. v. Walker

• Decision Date: 09 March 1880
• Citation: 4 N.W. 803,48 Wis. 614
• Parties: THE WISCONSIN RIVER LUMBER COMPANY v. WALKER
• Court: Wisconsin Supreme Court

4 N.W. 803

48 Wis. 614

THE WISCONSIN RIVER LUMBER COMPANY v. WALKER

Supreme Court of Wisconsin

March 9, 1880

Argued February 24, 1880

APPEAL from the Circuit Court for Portage County.

Defendant appealed from a judgment in plaintiff's favor.

Affirmed.

The appeal was submitted on the brief of Raymond & Haseltine for the appellant, and that of G. W. Cate for the respondent.

HARLOW S. ORTON, J.

OPINION

ORTON, J.

This action was brought against the defendant, as a stockholder of the plaintiff, for an assessment upon his stock. The answer is a general denial; and, a jury having been waived, the trial was by the court, and the findings and judgment were for the plaintiff. By proper exceptions to the evidence and findings, the following questions were raised, which will be considered in their order:

First as to the proof of the stock subscription. It was in evidence that the stock book in which the original subscriptions were made, was not in the possession or under the control of the plaintiff, but was in the personal possession of one Cronkhite, in the city of Chicago, state of Illinois, and of course beyond the jurisdiction of the court; and that the book had been demanded of him by the company, and he had refused to deliver it up, or to exhibit or produce it. The respondent, thereupon, offered to show and did show, against the objection of the appellant, by one Herron, the secretary of the company, the contents of the book, relating to such subscription of the appellant, from his recollection thereof. We think that under the rule laid down by this court in Garrison v. Owens, 1 Pinney, 544, and in Bonner v. The Home Ins. Co., 13 Wis. 677, sufficient foundation had been laid for the introduction of this secondary evidence.

The testimony of Judge Cate, that the appellant admitted his subscription to the capital stock of the company, and that of Herron, that the appellant had talked with him about his having made such subscription, although contradicted by the appellant, would sustain the findings of the court upon this point without further evidence.

Secondly as to the proof of an assessment, and call upon the capital stock, and notice thereof to the appellant. The witness Herron, the secretary of the company, testified: "I have the records of an assessment of the capital stock of the company, made January 27, 1877." He was then asked: "Will you show and state the persons who were present, of the board of directors, at the time of that assessment?" The counsel of the appellant "objected to the question on the ground that it is immaterial." The objection was not to the competency of the evidence. The objection was overruled, and the witness...