Bliss v. Rosenkrans, 125 Wis. 532. WINSLOW, DODGE, and SIEBECKER, are in favor of an affirmance of the judgment, while the Chief Justice, Justice KERWIN, and the writer are of the opinion that fatal error was committed in deciding the question of whether the facts found by the jury satisfy the rule in Hadley v. Baxendale, 9 Exch. 341, as adopted by this court in Guetzkow Bros. Co. v. A. H. Andrews & Co. 92 Wis. 214, 66 N. W. 119, and that the judgment should be reversed and one be rendered for the defendant. That situation, under the rule governing such matters, requires an affirmance of the judgment ex necessitate without writing more than this brief statement of the situation. By the Court.-So ordered. A motion for a rehearing was denied October 3, 1905. BLISS, Respondent, vs. ROSENKRANS, Appellant. September 12-October 3, 1905. Appeal and error: Failure to file record: Imposition of terms: Undertaking: Insufficient justification of sureties: Dismissal of appeal. 1. A motion to dismiss an appeal because the record has not been filed in time can be met by the imposition of terms where the record is filed when the motion is heard. 2. Under sec. 3065, Stats. 1898 (providing that an undertaking on an appeal shall be of no effect unless it shall be accompanied by the affidavit of the sureties, in which each surety shall state that he is worth a certain sum mentioned, which sum so sworn to shall, in the aggregate, be double the amount specified in said undertaking), an undertaking that the appellant will pay costs and damages awarded against him on appeal not exceeding $250, and that he would pay a judgment of $394 if affirmed, to which was annexed justification of sureties worth $788 in the aggregate according to their affidavits, does not comply with the statutory requirements, and the appeal will be dismissed. Bliss v. Rosenkrans, 125 Wis. 532. APPEAL from a judgment of the circuit court for Milwaukee county: ORREN T. WILLIAMS, Circuit Judge. Dismissed. Defendant appealed from a judgment against him in the sum of $394. The only undertaking served was to the effect that the appellant would pay costs and damages awarded against him on appeal, not exceeding $250, and that he would pay the judgment if affirmed. It was signed by two sureties, each of whom made affidavit that he was worth the sum of $394. Respondent moves to dismiss the appeal, first, because the record was not filed in time, and, secondly, because no undertaking satisfying the statute was served. S. F. Wetzler, for the motion. A. H. Blatchley, contra. DODGE, J. The first ground urged for dismissal could be met by imposition of terms, since the record has now been. filed; but the second ground of motion seems to us insuperable. Sec. 3065, Stats. 1898, provides: "An undertaking upon an appeal shall be of no effect unless it shall be accompanied by the affidavit of the sureties, in which each surety shall state that he is worth a certain sum mentioned, . . . and which sums so sworn to shall, in the aggregate, be double the amount specified in said undertaking." The amount specified in the undertaking is the aggregate of $250 limitation on costs and damages upon appeal and the face of the $394 judgment in the court below, or $644. The aggregate worth of the two sureties, according to their affidavits, is $788, which falls far short of double the amount specified in the undertaking. For this reason the appeal must be dismissed. By the Court.-So ordered. Werle v. Northwestern F. & S. Co. 125 Wis. 534. WERLE, Appellant, vs. NORTHWESTERN FLINT & SANDPAPER COMPANY and others, Respondents. September 12-October 3, 1965. Corporations: Minority stockholder: Conveyance of corporate property to stockholder: Amendment of articles of incorporation: Effect of failure to record. 1. In an action by a minority stockholder to set aside a sale of the entire corporate property to a stockholder, under the evidence, stated in the opinion, the sale is held to have been free from fraud, deceit, circumvention, or undue influence, and made in good faith and with the purpose of safeguarding the rights and interests of all stockholders. 2. When authorized in conformity to sec. 1775, Stats. 1898 (declaring that every corporation shall have the powers of a corporation conferred by statute necessary or proper to conduct the business or accomplish the purposes prescribed by its articles, and may, by a vote of a majority of the stock given at any regular meeting or at a special meeting called for the purpose, sell and convey or authorize to be conveyed all or any portion of the property owned by it, whether real, personal or mixed), a corporation may sell and convey all of its corporate property to a stockholder. 3. The mere fact that such stockholder afterwards sold and conveyed the property so purchased to a new corporation, organized by himself and other stockholders of the vendor corporation, does not render the sale void. 4. A sale and conveyance of all the corporate property to a stockholder cannot be set aside merely because of a delay of ten months in recording an amendment to its articles of incorporation, authorizing an increase of its capital stock and changing the number of its directors, where it appears that the corporation was originally legally incorporated and organized, and continued as such corporation during all the time in question, and the sale was made by de facto directors acting under due authority of a lawful stockholders' meeting. APPEAL from a judgment of the circuit court for Marathon county: W. C. SILVERTHORN, Circuit Judge. Affirmed. This is an appeal from an interlocutory judgment refusing to set aside the conveyance, bill of sale, and transfer of the Werle v. Northwestern F. & S. Co. 125 Wis. 534. property of the defendant company to the defendant Kuckuk, and adjudging that the same "were made in good faith, pursuant to law, without any fraud or undue haste, and were lawful acts" of the company, and were thereby "sustained and confirmed as valid transfers and conveyances." The facts upon which such judgment was based were found by the court, or are undisputed, and to the effect: That the defendant company was incorporated and organized under the laws of this state, February 16, 1900, with a capital stock of $35,000, divided into 350 shares of $100 each, and nonassessable. That at its first meeting of stockholders, February 20, 1900, there was elected a board of three directors, one of whom, Eichert, was chosen president and treasurer, and to whom $20,000 of such stock, consisting of 200 shares, was issued; another, Werle, the plaintiff herein, as secretary, to whom $10,000 of such stock, consisting of 100 shares, was issued; and the other was one Genrich, to whom $1,000 of such stock was issued. That April 9, 1900, the articles of incorporation were amended so as to increase such capital stock to $50,000. That January 21, 1901, such articles were again amended by increasing the capital stock to $100,000, and also increasing the number of directors to five, and thereupon Eichert, Werle, Curtis, Johnson, and Albers were regularly elected as such directors, and the board then chose Eichert as president, Johnson as vice-president, and Albers as secretary and treasurer. That such amendment was regularly made in all respects, except the same was not recorded in the register's office until December 3, 1901. That the stock so issued to Eichert and Werle, respectively, was paid for by their conveying and transferring to the company property belonging to them. That February 13, 1901, the company was embarrassed for want of working cash capital and ready funds. That, claims being made that the property which Eichert and Werle put into the corporation was not worth as much as the stock issued to them, respectively, they each on February Werle v. Northwestern F. & S. Co. 125 Wis. 534. 13, 1901, reduced the amount of their stock one half, and surrendered the same to the company, under agreements to the effect that, if for the ensuing three years the net profits. of the company should be twenty per cent. each year, then the company would reissue to them, respectively, one half of the stock so surrendered, or pay to them its nominal value in cash. That the whole amount of stock outstanding on that day was 432 shares of $100 each, of which Eichert owned 100 shares and Werle fifty shares. That September 21, 1901, the company was indebted to the amount of $31,587.96 and pressed for payment, and so called a meeting of its stockholders for October 2, 1901, to consider ways and means of continuing business, and it was then decided to raise money by bonding the property, and, if that should be impossible, then to offer the property for sale at not less than the amount of such indebtedness, and thereupon adjourned to October 7, 1901. That, it having been found at such adjourned meeting that not more than two thirds of the amount requisite could be raised on bonds of the stockholders and indorsers, it was determined by a vote of 305 to 55 to sell the property, and thereupon a special stockholders' meeting was called for October 21, 1901, to vote on the resolution for sale, which resolution was, at such special meeting on the day and year last mentioned, adopted by a vote of 315 to 50, the plaintiff being the only person voting in the negative. That the resolution authorized, empowered, and directed the directors to sell the property of the company, or so much thereof as might be necessary, at the highest price obtainable, within twenty days, but not for less than the amount of such indebtedness, and that in making such sale each and all of the then present stockholders should first have the opportunity of purchasing the same after ten days' notice of such proposed sale had been given to them. That pursuant to such resolution, and more than ten days after such notice, and on November 11, 1901, the directors accepted the bid of the de |