Smith v. Burns Boiler & Manufacturing Co.

132 Wis. 177 | Wis. | 1907

Dodge, J.

The decision of the trial court that plaintiff did not, by signing the written subscription, tender himself as a subscriber to the capital stock of the defendant corporation as finally organized is not assailed and is, therefore, the starting point, back of which it is not necessary to go; except so far as previous transactions color events subsequent to about November 13th, when the corporate articles were signed. The question, of course, then arises: By what act of his did the plaintiff become a member of such corporation or become es-topped to deny his membership therein or to recall the money which he had paid into Workman’s hands for another purpose, and to refuse to complete payment for ten shares ? Confessedly, he never, hy express words, declared his willingness to become a member of such corporation, nor does the court find that there ever was any express contract on his part so to do. The árgument is that, by attending the meeting of December 11th, he effectively waived, as the court says, any objection to the alleged purposes of the corporation in fact organized, and thus is bound as effectively as if he had in express words subscribed for ten shares of its stock.

The doctrine of waiver has been the subject of much looseness of expression. When considered as a means of imposing upon one a contract obligation, it is, however, subject to all the general principles which control the making of contracts. A true contract can arise only by the actual meeting of minds, and no true contract arises from the act of one apparently assenting to terms to which he has not in words agreed, unless a court can with certainty draw the conclusion from such act that his mental attitude was in fact that of assent and concurrence. 1 Page, Cont. § 50. But the term “waiver” is also applied to deprive one of a right or immunity when, having a right to assume either of two inconsistent positions, his acts unambiguously indicate an intention to adopt and avail himself of one. In such case the law holds him to have effectively waived his right to claim the other, whether or not he consciously intended such waiver. Rasmusen v. N. Y. L. Ins. Co. 91 Wis. 81, 88, 64 N. W. 301; Monroe W. W. Co. v. Monroe, 110 Wis. 11, 85 N. W. 685; Smeesters v. Schroeder, 123 Wis. 116, 101 N. W. 363; Pabst B. Co. v. Milwaukee, 126 Wis. 110, 105 N. W. 563; West v. Platt, 121 Mass. 367, 372.

It has not been found by the court, and is not seriously contended by the respondents, that the plaintiff ever consciously assented to become a member of this corporation, to which, from the first moment of authentic information as to its scope and purposes, he raised objection; but it is contended, and was concluded by the trial court, that he did knowingly and intentionally so avail himself of rights and privileges wbieb only a member or stockholder could have that a repudiation of membership would be inconsistent, and therefore not permissible, even though neither of the defendants can claim to have changed position in reliance on plaintiff’s acts so as to aroiise estoppel against him in their favor. A search of the record and of the findings convinces ns that there is no such act on his part worthy of discussion except the act of attending the meeting of December 11th. It is contended by the respondents that plaintiff was fully informed and understood that this was a meeting of the corporation ; that by the sending out of the notices therefor each subscriber to the formerly contemplated corporation had been notified that he had been accepted into this different one; and that no one could have supposed he had any right to attend this meeting, at least with any purpose of participating therein, unless he assented to such alleged acceptance of him as a member by the two incorporators. We are not disposed to question the logic of the proposition that one who is notified that he, as an accepted member of a corporation, is invited to attend one of its meetings, and who in response does attend and participate, may thereby waive at least some objections which theretofore he might have raised to a contention that he was such member; but we are persuaded.that the conceded facts, and those substantially undisputed, although some of them may be shrouded by some confusion of testimony, negative that situation. It must be remembered that here were more than 100 business men who, from combined motives of hope of a profitable investment and also of promotion of the prosperity of their city, had undertaken to supply capital for a certain purpose. Mr. Smith had been one of the active solicitors and had been one of the committee upon whose judgment as to the safety of the enterprise subscriptions had been made. A considerable number had joined upon the faith of his explanation of the scope of the enterprise and the methods by which the interests of the subscribers could be safeguarded. Since these men bad put their names to a writing binding them as they doubtless felt morally, if not legally, to each other to contribute the amount subscribed to such an enterprise, there had been no general information as to the course of events. Three of their number had, under quite ambiguous instructions, undertaken ■ not alone to “sign application for a charter,” as they had been authorized, but to actually organize a corporation, of which, of course, the signers of the articles were at first the only members. Indeed, this fact itself was, so far as the evidence goes, known to but a few- of the subscribers. In organizing that corporation they had departed radically from the purposes of the subscription, and, according to the testimony of substantially all those who speak upon it, they had done so with the idea that their act was tentative merely, and was not conclusive upon those with whom they were associated, but subject to their consideration and approval or rejection. Indeed, it is hardly probable that most of the lay members, either of the committee or of the subscribers, had any mental conception of that very metaphysical entity, the corporation, which results from filing articles before any stockholders exist. It is common experience that a party of business men, meeting to organize a corporation, and being confronted with a set of articles already recorded, would assume that they were but a proposition which might be wholly discarded and another basis of. association adopted. In this situation two men, one the treasurer of the temporary association of subscribers, gave a notice that “the subscribers” would meet on a certain date for organization and election of directors.

Great wéight is placed by respondents upon the fact that the same two men were signers of the articles of association. But it must be borne in mind that, while the fact that they were both subscribers and one an officer of the subscribers’ organization was known to substantially every subscriber, the fact that they had signed these articles .of association, or that they had placed them on record, was unknown to the great majority of those to whom the notice was sent. How, even conceding that the plaintiff knew that these two men had signed the articles and that they had been recorded, he also knew that the great majority of his fellow subscribers had no such information, and he was entitled to construe and understand this notice as one sent to men in ignorance of those facts. We cannot think that business men of good standing in the community, and with honest purpose, could have supposed for a moment that, by sending out this notice to the great majority of their fellow subscribers, they were placing the latter in a position where, if they did not act with diligence and if they responded to the notice in question, they would become bound to a situation which had never been submitted to them and to which they never had assented. That would be, in effect, laying a trap for their fellow townsmen, which is not a purpose to be ascribed to men of the character which these evince. Eor these reasons we do not at all agree with the counsel for the respondents as to the effect of this notice as informing its recipients that none were expected at that meeting save in the capacity of already accepted members of an existing corporation. This body of subscribers, already organized with their chairman and secretary, were entitled, and had a right, to expect from the very men who signed this notice that they would be given an opportunity as such subscribers to consider and determine upon the' propriety of any departure from the terms of their subscription; and we think it clear, not only that the recipient of such a notice would naturally so construe it, but that no other meaning existed in the minds of those who sent it, and that the construction now urged is an afterthought. It called for a meeting of the subscribers to something; it was sent to those who were subscribers to a general plan for a corporation, the details of which had not yet been determined upon, and those to whom it was sent were none of them subscribers to stock in this corporation which had been formed; besides, at least nine tenths of them had no knowledge that it had been formed or of its characteristics. Clearly, it called for a meeting of the subscribers to that to which the persons notified had in fact subscribed. It could not honestly mean anything else. The name used in the notice, Burns Boiler & Manufacturing Company, much dwelt on by respondents’ counsel, presented no such necessary departure from the plan which had been called by the subscribers the Burns Boiler Works, as to suggest to the subscribers that they were being entrapped into an admission that they entered into a new enterprise by responding to such a notice. Rone of them had the subscription paper in possession nor probably its exact words in memory. As ordinarily prudent men they owed no duty of suspicion or scrutiny to guard against being placed under new liabilities by such a device, at the hands of honorable members of their own business community. The information conveyed by the notice that directors should be chosen at that meeting evinced no more than that, if the subscribers adopted the details of a corporation, then they should proceed to act under it, and there would be no necessity for a further notice and meeting at a subsequent date for such purpose.

Taking the view which we do of the natural construction and significance of the notice, the conclusion obviously results that the action of one in attending that meeting by no means unequivocally disclosed a purpose to surrender his attitude as a subscriber under -the original writing and his right to protest against a change in the purpose of the corporation, and to refuse, himself, to join the new and different organization in case his associates decided so to do. If plaintiff believed, as we think he well might, that this was primarily a meeting of the subscribers to listen to and consider something which was novel to the great majority of them, although not to him, then he, as a subscriber, intending to abide by and carry out his original subscription, not only had the right, but, by reason of his prominence in the movement, almost owed tlie duty, to attend that meeting and explain to those less well informed the reasons why he saw peril in changes from the original plan. It would hardly have been the part of fairness to those whom he had invited into the enterprise to stay away and allow them to be drawn, in the hurry of such a meeting, into assent to the changes which he disapproved.

If he might have properly believed that he was invited to attend a meeting of those who had subscribed to the plan defined by the subscription paper, his act in attending and participating, at least so far as the actions and deliberations were within the proper field for consideration by such subscribers, did not necessarily evince a purpose to join the corporation organized by the articles. Did he proceed beyond that point % Eirst, it being announced that none but those who had paid twenty-five per cent, of their subscriptions should have a vote at the meeting, he acted on a committee to ascertain who they were. This was by no means inconsistent with the supposition that the subscribers to the original project were still in conference; certainly no more inconsistent than with the idea that those who had been already accepted as stockholders in the new corporation were meeting as such. It can hardly be questioned that subscribers under a paper such as this, when gathered together, may lay down such rules as they please regulating voting privileges at their meetings — this for the very good reason that no one is concluded by any vote taken to which he does not personally assent. But a meeting of the accepted stockholders of a corporation has no right to place any such restriction upon the franchise. A subscriber for stock who has been so accepted is completely a stockholder, whether he has paid his subscription or not. Helliwell, Stock & Stockh. § 41; Franey v. Warner, 96 Wis. 222, 231, 71 N. W. 81; Rehbein v. Rahr, 109 Wis. 136, 147, 85 N. W. 315. And our statutes prescribe that in the meeting of stockholders each shall be entitled to vote according to the stock held by bim. Sec. 1760., Stats. (1898). Hence we can ascribe no conclusive effect to the plaintiff’s remaining participant in the proceedings to the extent of ascertaining those who complied with the qualifications for suffrage which the chairman had imposed upon the meeting. There was nothing therein to clearly inform him that he was in a meeting of the stockholders of any other corporation and not a mere meeting of the subscribers to the original project. The next step in which he participated was a motion to adopt the articles of incorporation which had just been read to those present. This proposition was obviously one which had no place in a stockholders’ meeting. If these men were already members of that corporation, they could accomplish nothing by a vote to adopt or not to adopt its articles. They were already adopted for that corporation, subject, of course, to the ultimate right of amendment in the manner prescribed by statute. If, on the other hand, this was a meeting of the subscribers it was entirely within the function of such a gathering to decide whether this plan, now for the first time in specific form presented to them for their consideration, was such as they were willing to assent to, or whether it was such a departure from that to which they had agreed that they were unwilling to adopt it. We think it clear that this motion not only was not calculated to inform the plaintiff that he was exercising rights other than as a mere subscriber to the original project, but such as to well-nigh assure him that he was not. The vote to adopt these articles was the last action of that meeting in which it can be said, in any view, that the plaintiff participated. Immediately after the making of the motion, as the trial court finds, came a vigorous attempt by plaintiff .and some of those concurring with his views to urge upon the meeting reasons why the motion should not prevail and why they should not surrender their money into the custody of such a corporation as would result from the articles which had just been read. Here he was stopped by rulings of the chairman, we need not inquire whether properly or improperly. Certainly his effort in that respect was not evincive of a purpose to waive Ms objections. Immediately after the vote for adoption, and apparently as promptly as was physically consistent with the confusion of this crowded and disorderly room, he conferred with certain others of similar views, and proceeded to the custodian of his money and the secretary of the meeting and notified him formally of the withdrawal of his subscription, if to be construed as a subscription to the corporation whose articles the meeting had just decided to adopt. We can discover no significance in the fact that while the plaintiff and others were making their progress to the table at which defendant Workman was seated, or striving to gain recognition from the chair for the purpose of urging their protests, the distribution of ballots for election of directors proceeded, although such election, doubtless, must be considered as marking the meeting with a corporate character thenceforward. That was beyond their power to prevent or escape. It had been made obvious that plaintiff objected to being drawn into this corporation and did not assent thereto, even though he had not been allowed to develop in words his objection, and it was not necessary that he should terminate his physical presence in the room momentarily. He did so apparently with all due celerity consistent with notification to the custodian of his money that he declined to be considered a subscriber to this corporation. He did not participate in choosing directors, which, we are convinced, was the first act, not fairly consistent with a deliberative gathering of original subscribers.

Our conclusion is that no act of the plaintiff is shown so unequivocally evincing an intention to accept membership as a stockholder in the defendant corporation, or inconsistent with his right to insist that the money deposited with defendant Workman should be applied only to purposes within the limits defined by the original subscription paper, that he is, or at the time of his demand was, precluded from insisting on return of that money either from Workman or from the corporation which had received it with full knowledge of all the facts; hence that his right to recover it in this action is perfect.

By the Court. — Judgment reversed, and canse remanded with directions to enter judgment in accordance with the prayer of the complaint.