99 Wis. 54 | Wis. | 1898
The laiv bearing upon the rights, duties, and obligations of promoters of corporations has been so-fully covered and exhaustively discussed in the recent cases of Fountain Spring Park Go. v. Roberts, 92 Wis. 345; Franey v. Warner, 96 Wis. 222; Hebgen v. Koeffier, 97 Wis. 313, as to render it unnecessary at this time to do more than to refer to those cases.
In this case, the facts as found by the jury, and which are-fully supported by the evidence, are substantially that the-
An inspection of the complaint and the proceedings upon the trial lead at once to the conclusion that this action is based upon implied assumpsit, and is really an action for ■money had and received. Such being the case, it becomes important to inquire whether the recovery against the defendant Griffin can be maintained. The rule is quite elementary that, to enable a person to maintain an action for ' money, had and received, it is necessary for him to establish 'that the persons sought to be charged have received money
Applying these observations to the facts before us, we find that every dollar of the money sought to be recovered in this action was paid to the defendant Glendale Investment Association by the plaintiff. Not one cent was paid to Griffin, or came to his pocket, except as it came through the Glendale Company to Clayton, and then to him. The amount received by Griffin was but a small fraction of the money paid by plaintiff to the Glendale Company. Plaintiff, suing as for a rescission of its contract, and upon the im
Counsel for the Glendale Investment Association argue earnestly that the judgment 'as to it should be reversed, because there was no finding that there was a conspiracy or confederation among the defendants to defraud the plaintiff. Such a finding was not essential to the recovery. The special verdict, as we read it, substantially covers thq facts necessarily involved in the case; and, if a conclusion that a conspiracy was essential to a recovery was needful, it was but a legal conclusion the court might draw from the facts found. Perhaps a better answer to this contention is found in the fact that this defendant did not request any such finding, and has failed to preserve any exception to the failure of the court to submit the question on that line, requested by the defendant Griffim.
The criticism of the charge of the court on this branch of the case is somewhat hypercritical. That portion to which especial exception is made is as follows: “And, to enable yon to answer these questions correctly, you may take into consideration the allegation made in the complaint that
"We have carefully compared the charge given the jury with the requests submitted by the Glendale Company, and are well satisfied that the defendant has suffered no wrong. The facts proven tend to establish the justice of the conclusion arrived at, and leave the defendant without any just cause of complaint. The real basis of recovery rests upon the dealings between Clayton, the agent of said defendant, ■and at the same time a promoter and an officer of plaintiff, and the defendant corporation, through its secretary and general manager, Meyers. It is idle to say that this defendant or its secretary had no reason to believe that Clayton was not giving the actual purchaser the benefit of the commission allowed him. The fact is undisputed that the contract was for the full selling price of $2,100 per acre, and that the commission was not allowed to plaintiff in rebate of the contract price. It is also undisputed that the Glendale Company gave its checks from time to time to Clayton individually for the commission, and charged the amounts to its commission account. These facts, taken in connection with the situation and relations of the parties, speak loudly in favor of the conclusion arrived at. The true situation is fairly outlined by the verdict, and it ought not to be disturbed.
By the Court. — The judgment of the superior court of Milwaukee county, as to the defendant Griffin, is reversed; and, as to the defendant Glendale Investment Association, the judgment is affirmed.