Hoberg v. John Hoberg Co.

The following opinions were filed June 25, 1919:

Rosenberry, J.

Plaintiff contends that the judgment should be sustained on three grounds: (1) that the transaction by which the stock of the Crivitz Company was distributed to the stockholders of the defendant company was the result of the mistake of all parties concerned; (2) that the corporation had no power to declare a dividend payable in anything but money or its own stock; (3) that plaintiff is not .estopped to bring this action and has not ratified the transaction which resulted in the distribution of the Crivitz Company stock.

While the trial court did not specifically find that the distribution of the stock of the Crivitz Company was the result of a mutual mistake, it did find that such distribution was inimical to the interests of the defendant company and counter to and destructive, of the purpose for which the stock was acquired by the defendant company. The meeting had under consideration how the'stock of the Crivitz Company should be handled to carry out the object of the defendant company in purchasing it. It appears without dispute that but two alternatives were presented to the stockholders of the defendant company with reference to the stock of the Crivitz Company: first, that the assets of the Crivitz Company should be conveyed to the defendant company and the Crivitz Company should cease to do business; and second, that the stock should be distributed pro rata to the stockholders of the defendant company so that the defendant company would in effect remain in control of the Crivitz Company. That the defendant company as a corporation has lost control of the Crivitz Pulp & Paper Company is perfectly plain.

The provisions of sec. 1776a, Stats., wherein it is provided that when one corporation holds stock in another the president of the holding corporation may be authorised to vote the stock of the corporation which it owns and that its directors may qualify as directors of such owned corporation, were not called to the attention of the plaintiff or other stockholders of the defendant company. The proceedings by the stockholders of the defendant company which resulted in the distribution of the stock of the Crivitz Company were consented to upon the mistaken supposition that the transaction when completed would leave the defendant company in control of the Crivitz Company.

It is said that equity, in the absence of fraud, cannot grant relief for a mistake of law. A mistake of law, however, does not always bar equitable relief. The rule has been stated thus:

“Where there is a mutual mistake, either of fact in the making of. a contract, or of law or fact in the reduction of the contract to writing, the person injured thereby may have it reformed in equity in accordance with the truth, in the absence of facts or circumstances constituting a waiver of the remedy or an estoppel to the assertion of it.” Wis. M. & F. Ins. Co. Bank v. Mann, 100 Wis. 596, 617, 618, 76 N. W. 777. See 10 Ruling Case Law, pp. 304-316, §§ 48-59.

In this case the stockholders had a common declared purpose; that was that the defendant company should acquire the Crivitz Company so as to control its supply of raw material. The stock of the Crivitz Company was purchased for that purpose. The arrangement entered into was made to effectuate that purpose. Through mistake the proceedings did not accomplish that purpose. There is no reason, under such circumstances, why equity should not grant relief to a stockholder of a corporation as well as in a like case in the making of a contract.

Sec. 1765, Stats., provides:

“Any corporation which has invested or may invest its net earnings or income or any part thereof in permanent additions to its property or whose property shall have increased in value, may lawfully declare a dividend payable to stockholders upon its capital either in money or in stock to the extent of the net earnings or income so invested or of the said increase in the value of its property.”

No dividend was declared in this case. No attempt was made to meet a dividend obligation by the transfer of the stock of the Crivitz Company. What actually took place was a distribution of the assets of the defendant company. There was no special meeting called for the purpose of making such distribution, but all of the stockholders of the company were present, participated in the proceeding, and assented thereto. No questions were raised involving the right of the state, creditors, or third parties to object. Under such circumstances we think it is within the power of the stockholders of a corporation to make such distribution of its assets as was made in this case. At least no stockholder consenting thereto and participating therein and receiving his pro rata share of the distributed assets can object thereto on the ground that the act is ultra vires.

The finding of the trial court to the effect that the plaintiff had not ratified the distribution and is not estopped from maintaining this action is in accord with the clear preponderance of the evidence. Almost immediately upon discovering the true character of the transaction in which she was a participant the plaintiff tendered back the stock which she had received and demanded of the officers of the defendant company that they bring an action to restore the distributed stock to the treasury of the defendant company. In the meantime the situation remained unchanged. She did nothing after discovering the mistake to ratify or confirm the transaction.

By the Court. — Judgment affirmed.