Goodwin v. Bode

Jones, J. It is very clear that by the transactions detailed in the statement of facts Mrs. Bode lost $25,000, and if the trial judge had seen his way clear to afford relief in a legal manner and without injustice to creditors and stockholders he doubtless would have availed himself of the opportunity, and that is our attitude, but clearly there are very serious obstacles in the way. The first claim to be considered is that for $25,000* against the Art Company. During all the transactions of the Art Company and Lithographing Company under consideration up to the commencement of the proceedings for winding up the Lithographing Company, Alfred von Cotz-hausen, son-in-law of Mrs. Bode, seems to have largely dominated the "affairs of the two companies. He was made her trustee in an agreement dated February 3, 1906, substantially as follows: It was recited that Mrs. Bode was the holder of notes to the amount of $25,000 executed by the Michigan Company and indorsed by the Art Company; that they had not been paid at maturity; that Mrs. Bode had accepted 250 shares of stock of the Michigan Company in full satisfaction and discharge of the debt created by the notes; that the said shares of stock had been transferred to Alfred von Cotzhausen in trust for Mrs. Bode; that it was agreed that Mrs. Bode consented to accept said shares in full satisfaction and discharge of the Michigan Company as maker and the Art Company as indorser, and in consideration thereof the Art Company agreed to pay her interest at six per cent, per annum, quarterly, upon $25,000, the face value of said shares of stock, until the stock should be — 283 — disposed of as thereinafter stated. It was agreed that all dividends should be paid to the Art Company; and the Art Company further agreed to purchase within twelve months after notice or demand given by said trustee all or any of the shares held in trust, and to pay full value, and in the event of failing to pay within twelve months after such notice or demand, the trustee might, without further demand or any tender bf the certificates, commence an action to recover of the Art Company, or might, without further notice, at public or private sale, dispose of said shares, and if the proceeds should be insufficient to pay the face value the Art Company would pay the deficiency. There was an addition to this agreement which for the purposes of this case need not be stated. The language of this contract is perfectly clear that she then accepted 250 shares of the Michigan Company stock, to be held by von Cotzhausen as trustee, in satisfaction of the notes she held and of her claim against the Art Company as indorser. In consideration of such release she accepted the promise of the Art Company, not that it would pay the principal of the notes, but interest on the sum of $25,000, the face value of the shares, of stock taken in exchange. Although this agreement is criticised by appellant’s counsel, he admits its validity and that the liability of the Art Company as indorser was discharged. There is no claim that it was obtained by fraud, and there seems no reason to believe that it was not entered into in good faith. Appellant’s counsel claims, however, that although the liability as indorser then ceased, the indebtedness of the Art Company continued, and that this was. admitted by the payment of interest for a period of seven year's. Such payment of interest might well be regarded as an admission of liability for the principal, except that the obligation of the parties was plainly expressed by the written agreement. By that agreement she plainly released her demand against the — 284 — Michigan Company as maker and the Art Company as in-dorser and accepted instead the certificates of stock of the Michigan Company to be left in charge of her trustee. There still remained certain obligations of the Art Company, contingent, however, on certain notices to be given by the trustee as prescribed in the agreement. No such notice was ever given. It is argued by appellant’s, counsel that Alfred von Cotz-hausen, being the dominating head of the Art Company, was not a proper person to act as trustee, and that Mrs. Bode was not chargeable with his default. During the nine years which intervened between the execution of the agreement and the beginning of this action, von Cotzhausen continued to act as trustee, and through him Mrs. Bode held the stock of the Michigan Company. If she had been dissatisfied with his conduct of affairs she was at liberty to apply to the court for the appointment of another trustee. Meanwhile the rights, of other persons, creditors of the Art Company, had intervened, and we agree with the trial court that she was estopped from asserting her claim as, against them. Counsel for respondents argue that the agreement of February, 1906, was void under sub. 3, sec. 1775, Stats., since it was established that no such consent of stockholders of each corporation as the statute requires was ever given. It is also argued that if Mrs. Bode had any claim against the Art Company it was barred by her failure to file and present it in the receivership action for winding- up the affairs of the Art Company. Since, we place our decision on another ground, it is unnecessary to consider these claims. Since we hold that no cause of action in favor of Mrs. Bode had accrued or existed when her claim was filed, it becomes unnecessary to discuss at length another claim, which is that the Lithographing Company became a debtor of Mrs. Bode when the company bought and took over the — 285 — assets of the Art Company. It is argued that since the latter company turned over all its assets to the former company and remained a “mere shell,” there was a merger of the two companies and that the Lithographing Company assumed all the • liabilities of the other. The evidence is undisputed that there was no express agreement for any such assumption of liability. It is part of the history of this long litigation that on November 5, 1918, an interlocutory decree was made in the circuit court in which it was adjudged that Alfred von Cotzhausen had committed gross frauds upon the Lithographing Company and, among other things, had caused to be transferred to it the assets of the Art Company, and had caused the Lithographing Company to pay. therefor a grossly excessive price. It is res adjudicata as determined in the interlocutory decree, affirmed by this court, that the sale was not void as to creditors of the Art Company. The fraud practiced by Alfred von Cotzhausen was upon the Lithographing Company, and lay reason of the excessive price paid the assets of the Art Company were increased while those of the Lithographing Company were diminished to the detriment of its stockholders and creditors. In a finding by the referee it was determined: “That the status quo ante as to the transactions between the American Fine Art Company and the Milwaukee Lithographing Company cannot be restored; that the latter company should keep what it obtained from the former company. That the loss and damage to be allowed to this latter company should be as in these findings otherwise provided.” This finding was sustained by the trial court. The effect was an adjudication that the transaction between the Art Company and the Lithographing Company should stand according to its terms. Although Mrs. Bode was made a party defendant and had the right to litigate any demand she might have against the Lithographing Company aris — 286 — ing out of the transactions between the two companies, she did not attempt to do so, but finally appeared and appealed from the interlocutory decree to this court. The decree was affirmed as modified on appeal, and we deem it conclusive against her claim as a creditor of the Lithographing Company. On account of the views already expressed, we do not deem it necessary to' discuss the question whether the purchase of the assets of the Art Company by the Lithographing Company constituted a merger of the two companies as claimed by appellant’s counsel. Another claim was made by Mrs. Bode growing out of the sale of the assets of the Art Company to the Lithographing Company in 1910. It is claimed that there were then two groups of creditors of the Art Company, namely, Friedericke Bode for; $25,000 and Laura von Cotzhausen and her relatives $35,000. As before stated, part of the consideration undertaken to be paid for the transfer by the Art Company was 600 shares of the stock of the Lithographing Company. These shares were issued in the name of Henry Lockney, trustee, although the names of the ces-tuis que trustent are not given in the certificate. It is claimed by appellant’s counsel that a declaration of trust was executed by Lockney and a document was offered in evidence purporting to- be a declaration of trust stating that the shares were the property of the Art Company and that it was then indebted to persons named in schedule “A,” thereto annexed, and undertaking to sell the shares on certain' conditions and to distribute the balance among the creditors named in the schedule. The document was a formal one providing for exemption of the trustee from liability and for compensation. It purported to be accepted and approved by the Art Company. This document was pinned to the minute book of the Art Company, but was not executed by any of the parties thereto. The shares were not identified, the names of the creditors were not given, and no schedule “A” was ever attached. This certificate seems — 287 — to have been lost for a time, and on the 29th of August, 1913, an affidavit was made by Lockney stating that he had received the 600 shares of stock but was unable to find the certificate, and a request was made that a new certificate be issued. It cannot be said that this vague and un-executed instrument created a trust in favor of Mrs, Bode. If the document h'ad been duly executed it would have been Lockney’s duty to return any shares remaining unsold to the original owner, the Art Company, after the execution of his trust. Neither the Lithographing Company nor the Art Company dealt with the stock or any part of it subsequently as belonging to Mrs. Bode in trust, but the certificate for 600 shares was canceled and a certificate for 250 shares was issued to the Art Company. There was a resolution of the board of directors of the Art Company adopted July 15, 1913, on which counsel for appellant also relies. • In this resolution it was directed that: “A new certificate for 250 shares of stock be issued to the American Fine Art Company, being the balance of 600 shares of stock now held by Henry Lockney, trustee, and to be surrendered by him, said new certificate to be indorsed by its proper officers to Henry Lockney as trustee under the terms of an agreement to be entered into with him, said stock to be held by him as security for a debt by this company to' Mrs. íh Bode. The voting power of this stock is also to be held in the name of Alfred von Cotzhau-sen, president of the American Fine Art Company.” Notwithstanding this resolution, on August 29, 1913, the directors of the Lithographing Company adopted a resolution directing the cancellation of the old certificate and the issuing of new stock to the Art Company in two certificates for 350 shares and 250 shares, respectively. It was found by the trial court that the 250 shares thus issued to the Art Company were held by the Art Company at the time of the commencement of the action and had never been transferred. — 288 — There is no claim that the 250 shares were ever delivered to Mrs. Bode or to any one in her behalf. The Art Company never parted with its control of these shares. According to the terms of the resolution, the certificate was to be indorsed to Henry Lockney “under the terms of an agreement to be entered into with him.” The terms of the proposed agreement are not specified. At most it was a 'mere informal preliminary resolution looking to a contract to be made in the future. The present claim is based upon the theory that there was a pledge of this stock, and the court is asked to give its aid to enforce the contract of pledge by way of specific performance. In discussing this subject the trial court said: “The resolution upon its face appears to be a mere preliminary declaration of intention to do something under the terms of an agreement to be entered into. The terms of that agreement are not specified, and there is nothing in the resolution from which they may be inferred. Such a declaration will not be enforced as a contract. Furthermore, the amount of the debt is not specified. Neither is it made clear whether it is an existing debt or one to be created by future advances to be made by Mrs. Bode. It is very significant in this connection that as to the 350 shares to be pledged to Laura von Cotzhausen, Louis von Cotzhausen, and Clara Mueller there is no uncertainty or vagueness as to the amount of the debt, the portion of the same that is to be secured by the pledge, or the time within which it is to be paid. The plain inference is that as to Mrs. Bode some matters remained to be disposed of by future agreement before the stock would be assigned as security. It is impossible to determine from the resolution the amount of the indebtedness that was to be secured by fhe stock or any of the conditions upon which the stock was to be held. The resolution is too indefinite to base an action for specific performance upon it.” The decision of the trial court is sustained by the following cases, among others, cited by respondents’ counsel: Goldstine v. Tolman, 157 Wis. 141, 147 N. W. 7; Francis — 289 — H. Leggett & Co. v. West Salem C. Co. 155 Wis. 462, 144 N. W. 969; Moulton v. Kershaw, 59 Wis. 316, 18 N. W. 172; Lyman v. Robinson, 14 Allen (96 Mass.) 242, 252; Hunter v. Hathaway, 108 Wis. 620, 84 N. W. 996; Berry Brothers Ltd. v. Estate of Hooper, 179 Mich. 67, 146 N. W. 275. While it is to be regretted that Mrs. Bode lost the investment made by her in good faith, it is only one illustration of cases’ constantly recurring where honest people suffer serious financial losses through overconfidence in faithless agents. The reckless conduct of Alfred von Cotzhausen in the management of the business he dominated is all described in the interlocutory decree and the opinion of Mr. Justice Owen in this case, Goodwin v. von Cotzhausen, 171 Wis. 351, 177 N. W. 618. We are convinced that her losses were sustained by reason of his misconduct and that she is not entirely free from responsibility therefor. The evidence shows that while this litigation was going on she evaded service for over three years. This may or may not have been under the guidance of Alfred von Cotzhausen. To what extent her long neglect to file and-litigate her claims may have affected the rights of creditors and stockholders it would be hard to say. The trial court found that the interlocutory decree, as modified and affirmed by this court, was binding upon Mrs. Bode as to her claim as pledgee as well as upon her claim as a creditor, and with this conclusion we agree. The counterclaim prayed for judgment against Mrs. Bode for about $4,000, alleged to have been wrongfully taken from the Lithographing Company by Alfred von Cotzhau-sen and. paid to Mrs. Bode. It was alleged that she had knowledge of such wrongful taking and payments. The trial judge found that she received the payments in good faith believing that the payments were being made to her upon lawful authority by the Lithographing Company, and — 290 — that the counterclaim should be dismissed. We have reached the same conclusion. By the Court. — Orders affirmed. Owen, J., dissents. Esc'hweiler, J., took no part.