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Townsend v. La Crosse Trailer Corp.

Supreme Court of Wisconsin
Apr 5, 1950
42 N.W.2d 164 (Wis. 1950)


March 7, 1950 —

April 5, 1950.

APPEAL from a judgment of the circuit court for La Crosse county: R. S. COWIE, Circuit Judge. Affirmed.

The cause was submitted for the appellant on the briefs of William J. Sauer of La Crosse, and for the respondent on the brief of Lees Bunge of La Crosse.

This action was commenced by Roy C. Townsend, plaintiff, against La Crosse Trailer Corporation, a Wisconsin corporation, defendant, to recover damages alleged to be due for common stock of the defendant company purchased by it from the plaintiff under a stock contract or option. Plaintiff appeals from a summary judgment entered October 3, 1949, dismissing his complaint.

The defendant is a Wisconsin corporation having its principal place of business at La Crosse, Wisconsin, and is engaged in the business of manufacturing industrial trailers and other related products. The plaintiff worked for the defendant for many years as an engineer. On September 15, 1942, plaintiff and defendant executed an employment contract whereby plaintiff was to be employed by defendant as chief engineer for a period of five years from January 1, 1942. On December 22, 1942, the defendant sold to plaintiff one hundred twenty shares of its common stock at $100 per share. After a cash payment of $1,800 his note for the balance of the purchase price, payable in instalments over a five-year period, was accepted in payment for the stock. On the same date the plaintiff indorsed the stock certificates representing said stock and deposited them in escrow with the La Crosse Trust Company, pursuant to the terms of the stock contract or option that is in issue in this case. This contract was executed by the plaintiff, by the defendant, and by the trust company. The agreement contained the following paragraph:

"2. That in the event the said individual shall at any time cease to be employed by or work for said company, the said company shall have the absolute right and option within one hundred twenty days after the occurrence of said event, to wit: the termination of the individual's employment by said company, to purchase from the trustee the shares of common stock hereinbefore referred to or any portion thereof, and the said trustee upon tender to it of a sum equal to one half of the book value of said common stock of said company, according to the books of said company on said date, within one hundred twenty days after occurrence of said event as hereinbefore set out, shall deliver said stock to the said company and deliver said sums to the said individual, his heirs, executors, administrators, or assigns."

The agreement contained other provisions whereby the defendant could repurchase the stock in case of the death of the plaintiff and in the event of default in the payment of the note by the plaintiff. It further contained a provision ratifying all acts of the trust company as trustee under the agreement.

After acquisition of the stock, plaintiff served as director and as vice-president of the company.

On December 21, 1945, the defendant corporation gave plaintiff written notice that his employment by the defendant was terminated forthwith. On December 27, 1945, the defendant exercised its option to repurchase said stock and deposited with the trust company payment therefor at the rate of $205.50 per share, being one half of the book value of the common stock of said company according to the books of said company. Plaintiff was notified by the trust company defendant had exercised its option to repurchase the stock, and accepted the amount of the deposit. Following a conference, at which plaintiff was represented by counsel, the parties executed a mutual release. The first paragraph of said release reads as follows:

"In consideration of the sum of ten thousand ($10,000) dollars and other good and valuable consideration to me in hand paid by the La Crosse Trailer Equipment Company, the receipt of which is hereby acknowledged, and of a further sum in hand paid to me by the La Crosse Trust Company, I, the undersigned, R. C. Townsend, for myself, my executors, administrators, heirs, and assigns, do hereby forever release and discharge the said La Crosse Trailer Equipment Company, a corporation, the La Crosse Trust Company, a banking corporation, William F. Funk, individually, and any and all officers or agent of either of said corporations hereinbefore named, and the respective executors, administrators, heirs, and assigns of any said persons or corporations from any and all rights, claims, choses in action, or liabilities, present or contingent, of any kind or nature whatsoever that I may now have or hereafter have by reason of or arising out of any act, transaction, agreement, covenant, promise, contract, matter, or thing to the date hereof, expressly including, but not being confined to, any right, claim, action, or liability arising out of or by reason of any employment of the undersigned or any services, work, or duties performed by the undersigned. It is the intention of this release, in addition to the matters herein set forth, to release and discharge any and all contracts or agreements between the undersigned and any of the parties herein named, particularly including, but not being confined to, a certain contract between the La Crosse Trailer Equipment Company and said R. C. Townsend effective on January 1, 1942, and a certain agreement between said La Crosse Trailer Equipment Company, the undersigned R. C. Townsend, and the La Crosse Trust Company, dated December 22, 1942, as well as supplemental agreement dated April 24, 1944, and any and all other agreements, written or oral, that the undersigned may have had with any of said parties hereinbefore named."

The employment contract and the release each contained an agreement by plaintiff to assign to defendant patents or applications for patents for any ideas developed by plaintiff while employed by defendant. Plaintiff made such assignment on May 7, 1947.

The trial court entered a summary judgment on motion of the defendant for the reason that no issue of fact admissible under the law of the case was presented by the pleadings, affidavits, and the adverse examination of the plaintiff. The court held that neither fraud, incapacity, nor mutual mistake was alleged in the pleadings or offered by way of affidavit or adverse examination. The appellant contends that the record presents several substantial triable issues of fact and that the summary judgment should not have been entered.

It is unnecessary to discuss any or all of these claimed issues of fact. The release was a general release of all claims to the date thereof, and in addition referred specifically to the stock contract or option agreement. Unless the release itself was procured by fraud it effectively disposed of all controversies between the parties.

The amended complaint does not allege that $205.50 was not one half of the book value of the common stock of the defendant on December 27, 1945, the date the option was exercised. The complaint does allege that the net worth of the company, if based upon the market value of all of its assets, was much in excess of the book value of the stock according to the books of said company. The latter figure was the proper one to be used under the terms of the option. The plaintiff in his adverse examination states that the letter from the La Crosse Trust Company, in which he was informed that the defendant had exercised its option to purchase his stock at $205.50 per share, was the only representation he had as to what the book value of the stock was. He stated that he had no conversations with officers of the defendant respecting book value. He further stated that he had no reason to believe that the book value of the stock was computed in any special way for the purpose of fixing the amount paid him for the stock, and that so far as he knew it was computed from the regular financial statement of the company at that time. There are no allegations of actionable fraud or misrepresentation in the record.

The appellant finally contends that the affidavits of the defendant for summary judgment are fatally defective in that none of them contained the wording of the statute "that there is no defense to the action or that the action has no merit" as required by sec. 270.635 (2). Stats. The record discloses that this contention was not raised in the trial court. Questions not presented in the trial court cannot ordinarily be considered on appeal in this court. Monroe County Finance Co. v. Thomas, 243 Wis. 568, 11 N.W.2d 190. The contention, therefore, will not be considered here. No harm is done to the appellant thereby. Had the question been raised in the trial court, upon the undisputed facts in the record leave could and should have been granted to renew the motion upon affidavits containing the statutory language. Fuller v. General A. F. L. Assur. Corp. 224 Wis. 603, 272 N.W. 839.

By the Court. — Judgment affirmed.

Summaries of

Townsend v. La Crosse Trailer Corp.

Supreme Court of Wisconsin
Apr 5, 1950
42 N.W.2d 164 (Wis. 1950)
Case details for

Townsend v. La Crosse Trailer Corp.

Case Details

Full title:TOWNSEND, Appellant, v. La CROSSE TRAILER CORPORATION, Respondent

Court:Supreme Court of Wisconsin

Date published: Apr 5, 1950


42 N.W.2d 164 (Wis. 1950)
42 N.W.2d 164

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