The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1918-02-01

Hughes & Ellsworth, and H. l..
and j. w. Schmitt are attorneys for
Williams, Messrs. Ware and Junell of
Minneapolis are attorneys for the de-
PENDANT, and C. H. Strom of Lake
Crystal is attorney for that village.
In re application for dissolution of
Blue Earth County operative Com
pany, A. ]. Whitman Company, appel
liant, VS.. H. c. Mielke, receiver, re-
spondent.
Syllabus.
One. Claimants sold their stock OF
merchandise to cooperative COM
pany, agreeing to look only to the
proceeds of sales of stock for their
pay. Part of the stock was already
subscribed and was later paid for, and
claimants received the proceeds.
Held the contract created no claim
against the corporation unless it was
broken by the corporation
Two. Breach Of contract was not
pleaded. There was some evidence
that it was broken and some that It
was not. The burden of proof was on
claimant. The court made no finding
On this subject and was not asked
to do so. 1t is not the province Of
this court to make findings on con-
flicting evidence, nor on such evil
dence to direct the trial court what
findings to make. The issue of breach
Of NJ &c oh in, tho q G
sented on this appeal.
Order affirmed.
Opinion.
In 1907 claimants, A. ]. Whitman
& Co., were owners of a general mer-
chandise business in the village of
Good Thunder On November 20,
1907, they made written PROPOSE
ton "to the people of Good Thunder
and vicinity" in which they stated
that if twenty or more persons would
subscribe each 500 and become in
corporated as the Blue Earth Coun-
ty Cooperative Co., with bylaws
recommended by the Right Relation
ship League of Minneapolis, claim
ants would turn over to the corpor
alton so formed their entire stock of
merchandise, the value or price to be
determined by appraisement, and to
be paid as follows: There should be
credited on the books of the corpor-
alton a number of shares of capital
stock equal to the agreed purchase
price, said amount to remain so cred
tied until reduced and finally can
celled by the sale of additional shares
of stock, and as such shares were
sold and paid for, the proceeds to be
paid to claimant in reduction of the
credit 1t was stipulated that Meth
er the corporation nor the board of
directors nor members should incur
or assume any liability by authoriz-
ing the credit, but should "sell shares
as rapidly as possible"
The court found that some forty
persons subscribed stock and incor-
porated the Blue Earth County CO.
Operative Co., and that claimants
proposition was accepted by the cor
poration. The evidence sustains these
findings. The stock was appraised
at $6,277.72 and was transferred to
the corporation. Business was COM
menced with claimant Whitman as
OooiilCoO LlOhd6Vl. OtOCh was SOIu W
the amount of $4,255 80, leaving I'M
paid, $2,022. 40. After some years the
corporation became insolvent. A
receiver was appointed and claimants
presented their claim for the above
balance of $2,022. 40. The trial court
disallowed the claim and claimants
appeal
The trial court was right
One. The contract was valid one
At the time it became effective, a
substantial part of the consideration
had been subscribed, and this was
later paid over to claimants No rea-
son is suggested against the validity
OF the agreement of claimants to look
only to the proceeds of sales of stock
for the balance due them, and to
make no personal claim against the
corporation or it's members. The
corporation is not liable unless it, in
some manner broke it's contract.
Two. There is no allegation in the
pleadings of any breach. There was
some evidence to the effect that thu
corporation made no effort to sell
stock and the claim is now made that
there was breach on it's part of its
agreement to "sell shares as RAPIDLY
as possible" The fact is, Whitman
one of the claimants, was manager OF
the corporation. There was evidence
on behalf of the receiver that there
was a bona fide effort by the corpor.
alton to sell stock The court nigh,
have so found. The court made M
findings on this subject and was not
asked to do so. If claimants sought
to predicate their claim on breach
or contract, the burden was on then
to prove the breach If the trial cour1
omitted to make findings on this is
sue, it was incumbent on them t.
ask that findings be made. 1t is mo-
the province of this court to make
findings on conflicting evidence, mol
on such evidence, to direct the tria
court what findings to make. Lawtor
v. Fiske, 129 Mimi, $50. The issu,
or breach of contract is not in thu
case as presented by this appeal
FIenigan v. Pomeroy, IS Mimi, 264. 267
The contract being valid, and M
breach established, claimants have ne
claim.
/ Order affirmed.
! c. j. Lanrisch and s. B. Wilson wer
attorneys for the claimant, and ap
pellant. and j. W. Schmitt and u. G
Argetsinger were attorneys for tn,
receiver and respondent.
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l Affnrnav Mavh.rx nx,;s-