Conger v. Wallis

The following opinions were filed June 18, 1923: Eschweiler, J. An examination of the record, in this case convinces us that the trial court reached the proper conclusion upon the facts and as to the law. We deem it unnecessary to discuss more in Retail than appears in the above statement of facts the transactions between the parties, there being ample evidence to support the findings of the trial court as to the facts. [390] At the time of signing the option to defendant Wallis to purchase the plaintiff’s stock in the Tractor Company the' plaintiff here was then plaintiff in an action in the circuit court for Racine county against the defendant Wallis and the two old corporations; he there had, with the aid of able counsel, full opportunity to examine into all of the former transactions between the two companies; to learn of their financial situation and the consequent value of the stock. He knew, from the very language of the option he signed and from the statements then made, that the defendant Wallis was to be interested in the new corporation to be formed and that there was to be such a new corporation. He asked at first more for his stock than defendant was willing to or finally did agree to pay. The price was the subject of controversy and negotiation between the two. Plaintiff already then knew that he remained no longer director or officer of the Tractor Company because of the election of some one else in his place at the meeting of the preceding Mhy by the majority stockholders with whom he was litigating. He had at the time of the signing of this option a substantial control to a large extent over the situation by means of his still pending litigation in the Racine circuit court wherein he had sought relief by injunction against this very thing. With such power and control, and especially over those whom he had elected to treat as adversaries, rather than as trustees, by the Racine litigation, the foundation of which was a declaration and assumption on his part negativing any reliance, so far as the individual stockholder was concerned, that defendant Wallis was any longer his trustee, he nevertheless gave to his adversary this option, deposited and surrendered-his stock, and took the cash payments therein specified. We find nothing in the record here presented upon which could be predicated a finding that there was a fraudulent withholding of information which it was the duty of either [391] the defendant Wallis or Quarles to disclose to plaintiff under the situation as it existed at the time of the giving of the option. We are not unmindful of the rule stated in Timme v. Kopmeier, 162 Wis. 571, 156 N. W. 961, and kindred decisions called to our attention; but under the well recognized doctrine there established there is still in this particular record an absence of showing of any conduct such as would, between the parties here, amount to either actual or constructive fraud, and we are therefore of the opinion that plaintiff established no cause of action and that the trial court correctly so held. By the Court. — Judgment affirmed. Vinje, C. J., and Jones, J., dissent.