Tanner v. Gregory

71 Wis. 490 | Wis. | 1888

Taylok, J.

The mining company did not take any further steps in the case after the demurrer was overruled, except to appeal from the judgment. It took no exceptions to the evidence offered on the trial, nor did it except to the findings of fact or conclusions of law made by the court after hearing the evidence. If the complaint states an equitable cause of action against the company, then the judgment, as to the company, must be affirmed if the judgment can be sustained upon the facts stated in the complaint. All other exceptions to the proceedings in the case were waived by its failing to appear further in the case and take exceptions therein. See State ex rel. Spring Lake v. Pierce Co., ante, p. 321. Although the allegations in the complaint are not very specific, yet, giving them a liberal construction, there appears to be enough alleged to show that the corporation, after its organization, recognized the plaintiff as the owner of the 300 shares of the capital stock of said corporation, as claimed by him. If he was such owner of the shares of stock, and recognized as such owner by the corporation, then the corporation held the shares of stock as trustee for the plaintiff, and a court of equity would enforce the delivery’ of the certificates of such stock. See Dousman v. Wisconsin & L. S. M. & S. Co. 40 Wis. 418, 420. So far as the claim against the corporation is concerned, the complaint shows a trust, and . not a sale of the, stock by the company to the plaintiff. The case, as between the plaintiff and the corporation, does not involve the question whether a court of equity will enforce a specific performance of a contract for the sale of shares of stock in a private corporation. See Hill v. Rockingham Bank, 44 N. H. 567; Cowles v. Whitman, 10 Conn. 121; Pollock v. Nat. Bank, 7 N. Y. 274.

The defendant Gregory, having answered the complaint, has waived the objection that the complaint does not state an equitable cause of action. Peck v. School Dist. 21 Wis. 516, 522-3; Tenney v. State Bank, 20 Wis. 152, 163. The court might have rendered judgment against him, upon the evidence in the case, for the value of the stock he had agreed to deliver to the plaintiff, had the plaintiff desired such judgment, with the costs of the action; and he has no ground of complaint that the plaintiff chose rather to take a judgment against the company for the delivery of the stock than a money judgment against him for the value. Upon the evidence found in the record, it is sufficiently shown that, as between the plaintiff and Gregory, the plaintiff was entitled to the 300 shares of the mining company’s stock, and Gregory cannot complain that the plaintiff took judgment against him for less relief than he was entitled to.

By the Court.— The judgment of the circuit court is affirmed.

LyoN, J., took no part.