Columbus Institute of Milwaukee v. Conohan

WiNSLow, C. J. The defendant’s contentions will be taken up in their order. 1. The contract of subscription might be held ambiguous if it were shown that the subscriber did not know that there were two kinds of stock, or did not know that all of the common-stock had been taken and nothing but preferred stock remained to be sold. The facts are well nigh conclusive that the defendant was aware of the whole situation; he does not even intimate in his evidence that he was ignorant of it. He [222] was a member of tbe council wbicb took balf of tbe common stock. Tbe trial judge concluded in effect that it was understood by both parties that tbe stock for wbicb tbe defendant subscribed was preferred stock, and we tbink be was amply justified in so concluding. When both parties understand tbe words used in a contract to mean tbe same thing there can hardly be said to be any fatal ambiguity or uncertainty. 2. In tbe absence of restrictions in its charter or tbe general law of tbe state a corporation may accept and enforce-stock subscriptions payable in instalments. 2 Clark & Marshall, Priv. Corp. pp. 1449, 1450. 3. There are no such restrictions in tbe charter of the-plaintiff corporation and we find none in tbe general laws of tbe state. Sec. 1154, Stats., providing for tbe making of calls by directors, is intended to fix tbe time of payment of a general subscription wbicb fixes no time for payment. It is-to make that certain wbicb before was uncertain. It is entirely unnecessary when tbe subscription contract fixes the-time of payment. Germania I. M. Co. v. King, 94 Wis. 439, 69 N. W. 181. 4. Tbe false representations relied on were that no one but Knights of Columbus could buy stock or bold office. It appears by tbe articles that all of tbe directors (twelve in number) must be Knights of Columbus. We can find no evidence in tbe case that any one but Knights of Columbus ever bought stock, held stock, or held office, nor does it appear bow tbe representation, if made, was in any respect a substantial or material representation. Furthermore, tbe defendant doubtless ratified bis contracts of subscription by making payments on tbe first contract more than a year after it was entered into, at wbicb time be bad bad ample opportunity to ascertain tbe provisions of tbe articles of incorporation of a corporation of wbicb be himself was a member. 5. After both parties bad rested, tbe case was reopened for further testimony and some further testimony was taken in [223] presence of counsel for both parties. It was then suggested that certain corporate records should be introduced and that it might be done on the following day, but defendant’s counsel stated that he would not be there on the following day (Saturday), whereupon a continuance was ordered until Monday. At this latter time defendant’s counsel was not present and some formal record evidence was introduced, which added nothing of substance to the case. Counsel does not now suggest that there was anything in this testimony so taken which he could have met or desired to meet by proof.. We find no substantial prejudicial error here. There are no other contentions that deserve consideration. By the Court. — Judgment affirmed.