
    E. M. OBERNDORFER, AS LIQUIDATOR OF L. FRANK & SON COMPANY, v. THE UNITED STATES
    [No. A-333.
    Decided April 16, 1928]
    
      On the Proofs
    
    
      Suit by liquidator of dissolved corporation; substitution for corporation; Wisconsin statutes; judgment for use of creditors and stockholders. — A corporation of the State of Wisconsin, within three years before commencing suit in the Court of Claims, was dissolved by resolution of its stockholders and a “ liquidator ” appointed to whom the assets were turned over with directions to pay the corporate debts and taxes and to distribute the balance. The. statutes of Wisconsin continue the existence of a corporation for purposes of liquidation three years after resolution dissolving it. After the three years had expired the liquidator applied for leave and was allowed to continue suit. .Held, that a liquidator, so appointed and acting, is to be regarded as an assignee of the corporation, suing for the use of the creditors and stockholders thereof, and entitled to judgment accordingly.
    
      Purchase of paching-house products; contract -ivith Quartermaster Corps, U. S. Army; formality of execution; failure to fix price; allotment by Pood Administrator; breach by Government; measure of damages.- — See Swift <& Co. case, 59 C. Cls. 364; 270 U. S. 124.
    
      The Reporter's statement of the case:
    
      Mr. William, Cogger for the plaintiff. Mr. John E. Hughes was on the brief.
    
      Mr. J. Robert Anderson, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant. Mr. Charles F. Jones was on the brief.
    The court made special findings of fact, as follows:
    I. In the years 1918 and 1919 L. Frank & Son Company, Inc., was a corporation of Wisconsin, having its plant and doing business at Milwaukee, Wisconsin. On December 31, 1919, the following resolutions were duly passed by the stockholders of the corporation:
    “ Resolved, That this corporation be and the same hereby is dissolved, and that the president and secretary be and they are hereby authorized to send certified duplicate copies of this resolution sealed with the corporate seal as provided by section 1789 of the statutes of Wisconsin for 1917, and acts amendatory thereof and supplementary thereto, to the secretary of state, and to perform all other acts necessary to effectually dissolve this corporation. Upon motion duly made and seconded, the following resolution was duly adopted, 1,455 shares voting in favor of said resolution, and no shares contrary thereto: Resolved, That the assets of the corporation be turned over to E. M. Oberndorfer, liquidator, with directions to pay the debts and liabilities of the corporation, and after payment or reserving for payment such sums as in his judgment may be necessary for taxes and other liabilities, if any, to distribute the balance of the assets remaining to the stockholders pro rata according to their stock holdings at the close of business December 31, 1919, in the following order: First, by the returning to them their capital invested up to the amount of the par value of their shares; and, second, by distributing to them the balance of the surplus, if any, as and by the way of liquidation dividend. No further business coming before the meeting, the same is adjourned sine die?
    
    Section 181.02 of the statutes of Wisconsin continues the corporate existence of a corporation for the purpose of liquidating for three years after resolution dissolving it. Said' E. M. Oberndorfer is still acting as liquidator of L. Frank & Son Company.
    II. On April 6, 1917, the Congress of the United States declared war against Germany, and on April 12, 1917, the following general order was promulgated by the Secretary of War:
    General Orders, No. 49.
    War DEPARTMENT,
    Washington, April £8,1917.
    
    I — The following War Department orders are published to the Army for the information and guidance of all concerned :
    War Department,
    Washington, D. O., April 1#, 1917.
    
    Orders:
    1. It is hereby declared that an emergency exists within the meaning of section 3709, R. S-, and other statutes which except cases of emergency from the requirement that contracts for and on behalf of the Government shall only be made after advertising as to all contracts under the War Department for the supply of the War Department and the supply and equipment of the Army and for fortifications and other works of defense; and until further orders such contracts will be made without resort to advertising for bids in the letting of the same.
    2. Where time will permit, information will be given to the munitions board constituted by the National Council of Defense, through the supply bureaus’ representative, of orders to be made for supplies, with a view of assistance from the board in placing the orders and in. order that the supplies of the War Department may be coordinated with those of the Navy and other executive departments and secured at prices not in excess of those paid by other departments.
    
      3. It is to be understood, however, that the responsibility of the several supply bureaus for promptly supplying the needs of the Army must be recognized, and where time will not admit of the delay involved in consulting the munitions board the supply bureaus will retain their present initiative in contracting without reference to the board.
    Newton D. Baker,
    
      Secretary of War.
    
    By order of the Secretary of War:
    H. L. Scott,
    
      Major General, Chief of Staff.
    
    Official:
    H. P. McCaiN,
    
      The Adjutant General.
    
    III. By Special Orders No. 94, War Department, dated April 24, 1917, it was directed that Col. Albert D. Kniskern, relieved from duty as quartermaster, Central Department, “ assume charge of the general depot of the Quartermaster Corps at Chicago, Ill.,” and by Special Orders No. 193, War Department, dated August 20, 1917, it was directed that Capt. Otto F. Skiles, Quartermaster Officers’ Eeserve Corps, be assigned to active duty and proceed to Chicago, Illinois, “ and report in person to the depot quartermaster for assignment to duty as his assistant.”
    Colonel (afterwards Brigadier General) Kniskern remained on duty as depot quartermaster at Chicago until his retirement on September 1, 1919.
    IV. On July 3, 1918, by Office Order No. 491, Quartermaster General’s Office, there was established in Chicago a packing-house products branch of the subsistence division of the Quartermaster General’s Office to be located in the general supply depot of the Quartermaster Corps at Chicago, to be under the immediate direction and control of the depot quartermaster, and to be responsible for all matters pertaining to the procurement, production, and inspection of packing-house products, subject to the control of the Quartermaster General.
    V. There were numerous other orders, circulars, bulletins, and notices, aside from those herein specifically referred to, which were issued from time to time, many of them by General Goethals as director of purchase, storage, and traffic, a division of the office of the chief of staff which came finally to act in an executive rather than an advisory capacity, and many divisions, bureaus, and boards were created with assigned duties and authority, and reorganizations were had for the purpose of remedying defects in former organizations.
    The furnishing of adequate meat supplies for the Army was within the authority and duty of the acting quartermaster general and afterwards within his authority and duty as director of purchase and storage. General Kniskern, as depot quartermaster at Chicago, was the authorized representative of the acting quartermaster general in the purchase of meat supplies and, while subject to any specific instructions which the acting quartermaster general might see fit to give him, his duty was to supply the needs, and specific authority as to each purchase was not required. There was in the office of the quartermaster general a subsistence division, but the chief duty it exercised in the matter of the purchase of meats was to supply General Kniskern with such information as might be available as to future needs, leaving it to him to supply them.
    VI. In supplying the needs of the Army for packinghouse products during the early stages of the war, the regular method of advertising for and receiving bids and letting-contracts to lowest bidders, if otherwise satisfactory, was adhered to, but later on, in 1917 and during 1918, the needs had so grown and were so rapidly approaching the capacity of the packing plants that this method became impracticable, and the necessity for a constant and ever-increasing flow of supplies of this character made necessary the resort to other purchase and procurement methods.
    The office of the depot quartermaster, afterward the zone supply officer, at Chicago, was informed from time to time by the proper authorities at Washington as to the number of men which would be in the service within stated times, and the duty devolved on the depot quartermaster of procuring supplies of the kind in question sufficient for the indicated number of men without the issuance of specific authorization to him in each instance to purchase or specific instructions as to quantities to be purchased.
    
      VII. Since there were many elements entering into cost of production as to which there were frequent fluctuations, it was not practicable to undertake to determine prices so far in advance, and accordingly, instead of fixing prices at the time the proposals were submitted, or notice of allotments issued, it was agreed that prices would be determined at or near the first of each month for the product to be furnished during that month.
    At about this time the usual form of circular proposals was sent to the packers, not for use in submitting b,ids as under the peace-time competitive system, but as a convenient method for formal submission by the packers of their proposals as to price for the product which they had theretofore been directed to furnish during the month in question.
    Upon submission of these proposals as to price, if the same were satisfactory to .the depot quartermaster or, otherwise, upon adjustment to a satisfactory basis, purchase orders were issued, which furnished the basis of payment.
    VIII. The needs for meat products rapidly grew as the number of men to be provided for increased, and early in 1918 it became apparent that capacity production on the part of the plaintiff and the other large packers would be required.
    IX. On the 10th day of August, 1917, after the passage of the food control act, approved that- day (40 Stat. 276), the President, by Executive order, created the United States Food Administration and conferred upon it the powers and authority given him by said act, and authorized it to carry into effect the provisions thereof and directed all departments and established agencies of the Government to cooperate with it in the performance of its duties. By proclamation of October 8, 1917, he required all packers whose annual sales exceeded $100,000 to obtajn a license of the Food Administration as a condition of carrying on business after jSiovember 1st, and such a license was issued to the plaintiff.
    Effective November 1, 1917, the Food Administration issued regulations applicable to all licensed packers directing, among other thjngs, that their books shouJLd be kept as theretofore unless otherwise ordered, and that they should be subject to examination by the Food Administration.
    The food purchase board was organized, with the approval of the Secretary of War and the Secretary of the Navy, on December 11, 1917, consisting of the officials suggested, or their authorized representatives, and on May 8, 1918, the President formally authorized the organization of the food purchase board to consist of a representative of the Secretary of War, the Secretary of the Navy, the Federal Trade Commission, and the United States Food Administration.
    X. At a meeting of the food purchase board held on July 16, 1918, it was concluded that on account of the shortage which had developed in canned meats and bacon these products should be placed on an allotment basis. On August 12, 1918, the depot quartermaster at Chicago was notified from the office of the quartermaster general by the officer in charge of the subsistence division that it was understood that tinned meats, including tinned bacon and smoked bacon, would be allocated by the Food Administration, and he was requested to cancel orders which had been placed with the packers and ask allotments of the same from the Food Administration.
    XI. On November 23, 1918, L. Frank & Son Company sent to the depot quartermaster the following letter:
    Nov. 23rd, 1918. '
    WAR DEPARTMENT,
    
      General Depot of the Q. M. G., Chicago, III.
    
    (Attention Capt. J. C. Shugert.)
    Gentlemen : We are pleased to inform you that we agree to furnish during the month of January, 1919, 345,000 cans corned-beef hash.
    During the month of February, 1919, we agree to furnish 330,000 cans corned-beef hash.
    During the month of March, 1919, we agree to furnish 405,000 cans corned-beef hash.
    Each can to contain 32 ounces corned-beef hash, quality to be the same as we are now furnishing, and to be in accordance with Government specifications, the output to be inspected and accepted at factory daily.
    All deliveries to be on a f. o. b. Milwaukee basis, at such price as the Food Administration may deem proper to fix.
    The above deliveries are based on a five-day holding of cans.
    
      Should the B. A. I. insist on holding cans ten days, the quantities above-mentioned would be changed as follows:
    .Tannnrv 9QÍ1 nno/420, 000 1 lbs. January--¿au> uuu\ 50,000 2 lbs.
    February_ 330, 000
    March_ 375,000
    For your information, we want to say that we have placed orders with the Continental Can Co. to supply us with cans, to cover the above deliveries.
    We trust to receive allotments for the above at an early date, and would thank you for an acknowledgment of this letter.
    Very truly yours,
    L. FeaNk & Son.Company.
    On November 26, 1918, the following communication was sent to the Chicago office of the Food Administration for the attention of Major Boy:
    War Department, Office of the Quartermaster General, packing-house products branch, subsistence division, 1819 West 39th Street, Chicago, Ill.
    Subsistence.
    431 P. & S-PC.
    November 26, 1918.
    From: Officer in charge, packing-house products branch, subsistence division, Office Director of Purchase and Storage.
    To: United States Food Administration, 757 Conway Bldg., Chicago, Ill. Attention Major E. L. Boy.
    Subject: Allotments — Bacon and canned meats.
    1. In connection with the requirements of this office— canned meats and bacon — for the months of January, February, and March, 1919, you are requested please to make allotments to the various packers of the. items in the quantities and for delivery as is indicated below:
    L. Frank & Son Company, corned-beef hash, January, 580,000 lbs.
    L. Frank & Son Company, corned-beef hash, February, 660,000 lbs.
    L. Frank & Son Company, corned-beef hash, March, 750,-000 lbs.
    (There follow names of seventeen other packers followed by stated amounts of different products for each of the three months.)
    2. It is requested that packers be informed at the earliest practical date allotments made to them, in order (sic) that they can make necessary arrangements for the procurement of tins, boxes, and other equipment, as well as to know the quantities of green product it will be necessary for them to put in cure during December to apply on later deliveries.
    3. Please send copy of the official allotments to this office for our records.
    By authority of the Director of Purchase and Storage:
    A. D. KNISICERN,
    
      Brigadier General, Q. M. Corps, in Ohcvrge.
    
    By O. W. Menge,
    
      £nd Lieut., Q. M. Corps.
    
    OWM: JDW.
    On December 3, 1918, the Food Administration, by Major Boy, assistant to the chief of meat division, and with his approval, issued the following:
    United States Food Administration, Meat Division, 111
    West Washington Street, Chicago, Illinois
    Deo. 3rd, 1918.
    D. C. P. #2199
    From: U. S. Food Administration, meat division.
    To: L. Frank & Son, Milwaukee, Wis.
    Subject:
    1.On requisition of the packing-house products branch, subsistence division, Office of Quartermaster General, 1918 W. 39th St., Chicago, Ill., you have been allotted for delivery during the month of—
    
      
    
    2. The above to be in accordance with Q. M. C. Form 120 and amendments thereto.
    3. For any further information regarding this allotment, apply to the packing-house products branch, subsistence division, Office of the Quartermaster General, 1918 W. 39th St., Chicago, Ill.
    ÜNIted States Food Administration,
    Meat Division,
    By E. L. Box.
    Accepted:
    L. Frank & Son Co.
    B. F. Oberndoreer,
    
      Asst. Secretary L. Frank da Son Co.
    
    
      The placing of said orders and the making of said allotment was by officers and agents of the United States duly authorized thereunto.
    On December 5, 1918, L. Frank & Son Company, by its assistant secretary and general manager, signed the above communication “Accepted” and returned it to the Food Administration with the following letter:
    Dec. 5th, 1918.
    ÜNited States Food Administration,
    Meat Division,
    Chicago, Illinois.
    
    Gentlemen: We are pleased to acknowledge receipt of yours of the 3rd inst., filed DCP-2199, covering allotments of corned-beef hash during the months of January, February, and March, 1919.
    In accordance with your request, we enclose herewith duplicate, properly signed and accepted, for which kindly accept our thanks, and oblige.
    Yours very truly,
    L. Frank & Son Company.
    The quantities of corned-beef hash called for in the allotment for January and February were delivered to and paid for by the United States, but the United States refused to accept the March allotment.
    On January 24, 1919, the following communication was sent to L. Frank & Son Company by the agent of the United States duly authorized thereunto, and was received by the company on January 27, 1919:
    War Department, General Supply Depot, U. S. Army, Zone Seven, Packing House Products Branch, Subsistence Division, Office Director Purchase and Storage, 1819 W. 39th St., P. O. Lock Box 00, Chicago, Illinois
    January 24, 1919.
    From: Zone supply officer, Zone Seven, packing-house products branch, subsistence division, office Director Purchase and Storage.
    To: L. Frank & Son Company, Milwaukee, Wisconsin.
    Subject: Packing-house products.
    1. Due to the large quantities of bacon, corned beef, roast-beef, and corned-beef hash now on hand, and in view of the fact that the Army is rapidly being demobilized, and the demand constantly decreasing, yon are informed that this office will not be in the market for any of the above-mentioned products for delivery during the month of March, 1919, except as hereinafter stated.
    2. Such quantity of bacon as is not in process of cure, over and above the quantity necessary to take care of February awards, and which has been passed by inspectors of this office will be accepted.
    3. This information is furnished you for the purpose of giving as much advance notice as possible of the intentions of this office, in order that you may take such steps as you may deem necessary toward the reconstruction of your commercial trade.
    4. There is at present no likelihood of any further purchase of the products mentioned for several months.
    5. Please accept the sincere thanks of this office for the hearty and loyal cooperation your firm has so generously given in the past, without which the difficulties of securing sufficient meat foods for the Army would have, been well-nigh unsurmountable.
    By authority of the Director Purchase and Storage:
    A. D. KNISKERN,
    
      Brigadier General, Quartermaster Corps,
    
    
      Zone Supply Ojfveer.
    
    O. F. Skiles,
    
      Major Quartermaster Corps.
    
    XII. Soon after the armistice the Food Administration began to “ taper off ” .its activities in various directions, adopting a program of discontinuance of its activities as early as possible. It made no further allotments of meat products, and fixed no price for bacon or for canned roast beef, canned corned beef, or canned corned-beef hash after that for December delivery.
    On December 16, 1918, General Kniskern was instructed by telegraph as follows:
    Brig. Gen. A. D. Kniskern,
    Chicago, III.:
    
    Effective with January requirements, the Army will purchase packing-house products independently of Food Administration.
    
      This office is notifying Food Administration accordingly. You are authorized to proceed on this basis. Please wire acknowledgment.
    Wood.
    Baker.
    
      Subsistence.
    
    Thereafter prices for January and February deliveries were determined as they had been during the earlier months of 1918 before that function came to be exercised by the Food Administration.
    XIII. The loss sustained by L. Frank & Son Company by reason of purchasing material for the performance of the contract for the month of March, 1919, was as follows:
    Total tonnage on hand after complete January and February, 1919, deliveries were made to the U. S. Government _pounds_ 119, 948
    Value of tonnage based upon average price paid for meats used in manufacture of corned-beef hash December, 1918, January, February, 1919_$24, 951.14
    Add 2%% remuneration in lieu of administrative and overhead expense_ 628.77
    Actual storage paid to outside cold-storage warehouses April 1st to July 1_ 1, 372. 52
    Insurance paid after April 1st, 1919. to July 1st, 1919_ 84.44
    Total cost_ 27,031. 87
    Less:
    Amount realized from sales: Baker Food
    Company, 10,546 lbs. @ 10c_$1, 054. 60
    Frank & Company, 109402 lbs. @ 10%c_ 11, 760. 72
    Total amount realized_ 12, 815. 32
    Net amount of loss sustained_ 14,216. 55
    XIY. By reason of the Government’s refusal to accept the corned-beef hash for March delivery, in accordance with the agreement above set forth,, the L. Frank & Son Company suffered damages in the sum of $13,592.78.
    Plaintiff made reasonable effort to dispose of said material and did dispose of same in a reasonable time and at reasonable market prices.
    E. M. Oberndorfer, liquidator designated by the stockholders of L. Frank & Son Company, has applied for leave and been allowed to prosecute this suit, which was originally instituted in the name of L. Frank & Son Company on the 16th day of December, 1921.
    The court decided that plaintiff, as liquidator and assignee of L. Frank & Son Co., suing for the use and benefit of the creditors and stockholders thereof, was entitled to recover. $13,592.78.
   Campbell, Chief Justice,

delivered the opinion of the court:

■ This case in its general aspects is like that of Swift de Co., 59 C. Cls. 364, 270 U. S. 124. That is to say, the legal principles governing the cases are the same. The facts are not materially in dispute. A corporation known as L. Frank & Son Company was called upon to furnish large quantities of “ corned-beef hash ” during the months of January, February, and March, 1919, for Army uses. The officer in charge of the packing-house products branch, subsistence division, Quartermaster General’s office, being the director of purchase and storage, Brigadier General Kniskem on November 26,1918, issued a requisition upon the United States Food Administration to make allotments for delivery by L. Frank & Son Company of 580,000 pounds of corned-beef hash in January; 660,000 pounds in February; and 750,000 pounds in March. As part of the same requisition there were included the names of seventeen other packers, with stated amounts of different products for each of the three months. Upon receipt of this requisition the United States Food Administration, meat division, addressed to L. Frank & Son Co. on December. 3, 1918, its notice that on requisition of the packing-house products branch that company had been allotted for delivery during the three months above mentioned the quantity of corned-beef hash already stated, with the statement “Price to be determined later.” This allotment was made by duly constituted agents of the Government and was accepted in writing by the company. In compliance with the allotment and its acceptance, the company actually delivered ,the quantities called for. January and February deliveries. It was making preparations' to carry out the bal-anee of the contract by making deliveries in March when, on January 27, it received a communication from the office of Brigadier General Kniskern to the effect that the Government would not accept the products mentioned for March delivery, the reason assigned for this action being the demobilization of the Army then in process and the constantly decreasing demand for the meat products. The L. Frank & Son Company had made purchases of meat which it had on hand for use in supplying the March allotment, and on account of the falling prices occasioned by the Government’s refusal to accept meat products the market value of these purchases was greatly lessened. It did all it could reasonably be expected to do to reduce its damages and finally sold at considerable loss the meat it had on hand. Its books were examined by Government accountants and its losses ascertained. One small item allowed by the accountant is rejected but the balance shown in the findings as the net amount of loss accords with the conclusions of these accountants. Under the principles stated in the Swift & Co. case, supra, there can be no question of the Government’s liability for the damages resulting from its breach of the contract.

On behalf of the Government it is insisted, however, that the L. Frank & Son Company, a Wisconsin corporation, was dissolved by resolution of its stockholders, set forth in the findings of fact, that the Wisconsin statutes authorize a voluntary dissolution, and provide that when lawfully dissolved the' corporation shall nevertheless continue for a period of three years to be a body corporate “ for the purpose of prosecuting or defending actions and of enabling them to settle and close up their business, dispose of and convey their property and divide their capital stock,” and that after the expiration of the three-year period the corporation becomes defunct, or, to use the language of defendant’s brief, “ it has no capacity to prosecute an action.” For this reason the Government insists the petition should be dismissed, and to sustain this view there is cited State, ex rel. Pabst, v. Circuit Court, 184 Wis. 301. This case quotes the sections of the statutes relied upon and decides that the writ of prohibition should issue, restraining the further prosecution of an action against the Pabst Company because of tbe dissolution of the latter by action of its stockholders in conformity with the provisions of the statutes. The period of three years having expired it was said: “ The corporation being defunct and without legal existence, all actions against it abated ” (p. 307).

It is to be noted that the action pending against the Pabst Company was an action ex delicto which would not have survived, at common law, the dissolution of the corporation, but whether the rule stated is the same or is different where the suit is by the corporation brought within the three years allowed by the statute, it is plainly necessary in order to invoke the statute that it be proved that a legal dissolution has taken place. Under the terms of the statute it is not only essential to show that the stockholders have taken appropriate action, but it is also essential that the formal proceedings required by the statute be complied with. There is no proof in the instant case that the resolution properly attested, as required by section 181.03 Stats. (Pabst case, p. 305), was filed with the Secretary of State or was accepted by him, or was recorded by the register of deeds. But the resolution alone is not sufficient proof. (Pabst case, p. 306.) But if it be assumed that the corporation was dissolved legally, it does not follow that the present action may not be maintained, because of the intervention of the person designated by the resolution of the stockholders. The action in this court was instituted within three years of the date of the resolutions looking to the .corporation’s dissolution. It was brought in the corporation’s name. The statute authorizes a suit within three years. A contention was made in Lmde-rnann v. Rush, 125 Wis. 210, 229, that the power extended by the statute for three years was to enable the corporation to wind up its affairs, was exclusive of any other right or remedy for that purpose, and that debts due it or owing by it were extinguished at the end of that period. The court said (p. 230) “ If these propositions are well founded, the legal consequences are certainly weighty and far-reaching, and there should be no uncertainty in their application for the ascertainment of private property rights and of those of the state within their operation.” It brushed aside the idea that all rights of action ended at the end of the three-year period and held that the assets of the dissolved corporation are a trust fund which a court of equity would lay hold of and administer for the benefit of those entitled to it. This is in keeping with the generally accepted doctrine on the subject. See Pabst case, supra; Lake Shore Railroad Co. v. Smith, 173 U. S. 684, 698; Meriwether v. Garrett, 102 U. S. 472, 512; Pewabic Min. Co. v. Mason, 145 U. S. 349. It appears that in Lindemann v. Rusk, supra, the action was commenced within three years immediately following the date of dissolution of the corporation, “ but was not prosecuted to final judgment until after this three-year period,” and replying to a contention that the action abated at the expiration of the three-year period, the court says (p. 232) : “No reason is advanced for this result except the suggestion above mentioned, that the corporation then became extinct and all. interest in the claim to its property was forfeited, and that creditors and owners of the capital stock were remediless in the matter; but, as we have pointed out, such is not the result; nor is there anything in the nature of the suit to prevent its continuance and an adjudication and enforcement of these rights. The action is founded in equity.” It would indeed be a strange doctrine that would enable the Government to defeat a meritorious claim by the mere postponement of trial of a suit legally brought within the three-year period. The appropriate method of asserting the right of those entitled to the fund would usually be through a receiver appointed by the court, and the question is whether there are proper parties before the court. If there are such there is no doubt that the suit may be properly prosecuted to judgment. The Wisconsin statute authorizes the directors to act for three years, with full power to settle the corporation’s affairs but “subject to the power of any court of competent jurisdiction to make in any case a different provision.” See Lindemann v. Rusk, supra, p. 231. Clearly, the right of action did not abate if there was a proper plaintiff before this court within the period prescribed by the statute of limitations applicable to this court. The resolution of the stockholders was not confined to a dissolution of the corporation but went further and declared “that the assets of the corporation be turned over*to E. M. Oberndorfer, liquidator, with directions to pay the debts and liabilities” and distribute the balance to those entitled to share therein. This action superseded the authority of the directors in that the stockholders themselves directed that the assets be turned over to the liquidator. That the claim against the Government was a part of the assets is unquestionable. The resolution is broad enough to constitute the liquidator an assignee for the benefit of creditors. It gave him, whether called liquidator, trustee, or assignee, the power and right to collect the claim of the corporation against the Government, and to that end he could maintain a suit. See Hubbard, v. Tod, 171 U. S. 474, 498. If the corporation were dissolved it could sue or its name be used in the suit brought within the three-year period, and while the suit was still undisposed of the liquidator sought permission to continue the suit. He was accorded that right, but without prejudice to legal objections the defendant might present. The objections now urged are as heretofore stated. While this court can not appoint a receiver, it is quite clear that a court of equity would not allow the trust to fail for want of a trustee. See Curran v. Arkansas, 15 How. 304, 311. It seems unnecessary to remand the case for that purpose where it appears that the stockholders have designated a liquidator (whom we regard as an assignee) and thus allowing the case to proceed in his name no reason appears why this court may not so mould its judgment as to show that he sues for the use of the creditors and stockholders of the corporation. Judgment will be awarded accordingly. And it is so ordered.

Moss, Judge; Graham, Judge; and Booth, Judge, concur.

This case was originally decided January 9,1928, and concluded with Finding XIY. On defendant’s motion for new trial Finding XV was, by order of April 16, 1928, added as follows, with memorandum by Chief Justice Campbell:

XY. (a) The original petition in this case was filed December 16, 1921, in the name of L. Frank & Son Company, alleging a contract made in November, 1918. It was No. A-333 on the docket, and is made a part of this finding by reference.

(b) An amended petition was filed on February 6, 1922, in the name of L. Frank & Son Company, a corporation, which is made a part of thjs finding by reference. The defendant’s motion filed March 30, 1922, to require that the petition be made more definite was overruled. The defendant’s demurrer filed May 29,1922, was overruled June 5,1922.

(c) A second amended petition was filed October 18,1922, in the name of L. Frank & Son Company, a corporation, which is made a part of this finding by reference. The defendant’s demurrer to the same was overruled February 19, 1923.

(d) A third amended petition was filed in the name of L. Frank & Son Company, a corporation, on May 8,1926, which ,is made a part of this finding by reference. After proof had been taken and filed defendant’s motion for leave to file special plea in abatement was overruled.

(e) On December 18, 1926, a motion was filed asking the substitution of E. M. Oberndorfer as party plaintiff, which was objected to by defendant, and subsequently allowed. On March 5, 1927, a fourth amended petition was filed in the caption of which E. M. Oberndorfer appeared as party plaintiff. This petition is made a part of this finding by reference. The defendant’s demurrer to this petition was overruled.

(f) On July 6, 1927, a fifth amended petition was filed, in the caption of which the plaintiff is styled “ E. M. Obern- • dorfer as liquidator of L. Frank & Son Company.” This petition is made a part of this 'finding by reference. The defendant’s demurrer to this petition was overruled. The defendant’s several demurrers to the amended petitions are made parts of these additional findings by reference.

memorándum BT CHIEF JUSTICE CAMPBELL

The defendant did not request in its original requests the special findings involved in its last motion. The making of them now ,is perhaps in the discretion of the court. See Winton case, 255 U. S. 373, 395. They involve findings as to matters in the record. The claim asserted by the corporation originally was well within the time allowed by the statute of limitations of six years. The amendment allowed the suit to be prosecuted by the liquidator of the dissolved corporation. The dissolution of the corporation gave a right to this liquidator or trustee to intervene and continue the suit in the interest of those entitled to the assets. See Thomas' case, 15 C. Cls. 335. It was there said, after a review of the cases (p. 346) : “All recognize the propriety of granting such an amendment as is now sought for, when it is necessary to the furtherance of justice.” “ There was, therefore, enough in the original petition to give the court jurisdiction of the parties and of the subject matter, and there is enough by which to amend.” Thomas’ case, supra, page 348. In Little's case, 19 C. Cls. 323, 330, the court refused to hold “ that the dead contractor’s representative shall be turned out of this court, * * * if any way can be found to avoid it without illegality.” See Buck's case, 25 C. Cls. 120, 122; American, Tobacco Company case, 166 U. S. 468. The material facts of this case are undisputed. The Government seeks to interpose a defense of a very technical nature that, as applied to the facts, is utterly unsound.

Moss, Judge; Grai-iam, Judge; and Booth, Judge, concur.

Green, Judge, took no part in the decision of this case.  