120 Wis. 169 | Wis. | 1904
We perceive no reversible error in refusing to compel the plaintiff to elect which count it would' go to trial upon. The only difference in the two counts is that in the one it is alleged that the property sold to the defendant was reasonably worth $1,500, which the defendant then and there agreed to pay therefor, and in the other that the defendant agreed to make such payment therefor in thirty-
A number of errors are assigned for the improper admission of testimony and the refusal to strike out testimony. The question here presented is whether the verdict was properly •directed in favor of the plaintiff. If the evidence, properly ■admitted, was sufficient to take the case to the jury, then the judgment must be reversed, regardless of the question whether any evidence was improperly admitted or retained. If the verdict was properly directed in favor of the plaintiff, upon evidence properly in the case, then the defendant was •in no way prejudiced by the admission or retention of improper testimony.
It is undisputed that in December, 1899, the plaintiff was the owner and in possession of the telephone exchange, franchise, posts, poles, wires, telephones, and other apparatus mentioned in the complaint; that at that time one John Boy-son was a director and the vice-president and treasurer o? that company, and had for a considerable timé been the managing agent for the plaintiff’s board of directors in the control and management of said property, and was orally authorized by the other directors of that company to sell and dispose of all such property. One A. L. Hutchinson testified to the effect that he was the treasurer, director, and general manager of the defendant company; that the two companies ■had exchanged business up to December, 1899; that he conversed with Boyson at different times in the latter part of December, 1899, and the forepart of January, 1900, in re
There appears to have been some controversy as to whether the contents of the slip or paster so attached to the contract were to be a part thereof, and as to whether it should be written in the contract, or left so attached. The matter of exchanging such contract in duplicate appears to have been delayed until June 14, 1901, when the plaintiff requested the defendant to sign the contract, with the contents of the -slip or paster written therein, but which the defendant, a week afterwards, refused to do. In July, 1901, the plaintiff demanded a settlement from the defendant for the property so ■sold and delivered to it. The defendant refused to do so by reason of the plaintiff’s delay, and its final refusal to sign the contract with the contents of the slip or paster left out, and for the further reason that the plaintiff had failed to keep and perform the contract of 1896 alleged in the defendant’s answer. It is undisputed that immediately after the proposed written contract was drawn by Hutchinson, January 18, 1900, all the operators of the property were directed to turn the same over to the defendant. Elutehinson testified in behalf of the defendant that the result of the conversation between Boyson and the defendant’s board of directors, January 18 or 19, 1900, was that the defendant should take possession at .once; that he was to notify the officers and agents ■of the plaintiff that the defendant had bought the property ■and was to take possession at once and begin to receive the tolls; that the contract was closed, and, as general manager, he sent out notices to that effect; that he sent circular letters to such different operators to the effect that the property had been transferred to the defendant, and that thereafter all remittances should be made to the defendant; that such remittances were thereafter made to the defendant; that during the summer of 1900 the defendant wrote letters to different patrons, agreeing to repair different parts of the property so
Thus it appears from the undisputed evidence that on or about January 19, 1900, the property in question was delivered by the plaintiff to the defendant, and the'defendant received and accepted the same, >and appropriated the same 'to its own use. This being so, there is no ground for claiming that the transfer was void under the statute of frauds (sec. 3308, Stats. 1898). Mason v. H. Whitbeck Co. 35. Wis. 164; Bank of River Falls v. German Am. Ins. Co. 72 Wis. 535, 40 N. W. 506; Pratt v. Peck, 70 Wis. 620, 36 N. W. 410; Ashland L., S. & C. Co. v. Shores, 105 Wis. 128, 81 N. W. 136. Under our statute the defendant was authorized to take and acquire by purchase or assignment, and thereafter own, hold, and enjoy, any right, privilege, or franchise theretofore owned by the plaintiff. Secs. 1775, 1775a, Stats. 1898; State ex rel. Badger I. Co. v. Anderson, 97 Wis. 114, 72 N. W. 386. As indicated, the possession of the property was fully delivered to, and received and accepted by, the defendant.. The defendant retained such possession and had the use and benefit thereof for years, and converted a portion thereof to its own use. These facts* are undisputed, and, being so, the defendant is estopped from claiming any want of authority in the plaintiff’s board of directors to make the transfer through its vice-president, treasurer, and director, Boyson. In view of the admitted facts and circumstances mentioned, it may be fairly presumed that even the stockholders of the respective corporations acquiesced in, if they ■did not expressly authorize or ratify, the transfer óf the property in question. Marvin v. Anderson, 111 Wis. 392, 393, 87 N. W. 226, aaid cases there cited; Consolidated W. P. Co. v. Nash, 109 Wis. 497, 85 N. W. 485; 2 Cook, Stock & Stockholders (3d ed.) §§ 728 — 733. It is undisprrted that before 'the commencement of this action the plaintiff demanded a
We must bold that tbe verdict was properly directed in favor of tbe plaintiff.
By the Court. — The judgment of tbe circuit court is affirmed.