Hoffmann v. Wausau Concrete Co.

58 Wis. 2d 472, 207 N.W.2d 80 (1973)



Four elements must be demonstrated to prove a gift: (1) Intention to give on the part of the donor. (2) Delivery, actual or constructive, to the donee. (3) Termination of the donor's dominion over the subject of the gift. (4) Dominion in the donee. 


The stock claimants made their claim to the company's stock on the theory that the assignment the president executed was a gift in trust by the company to the trustee for the stock claimants' benefit. A case was filed against the company to claim these stocks. The court noted that the jury's answers went to the legal effect of the substantially undisputed testimony. However, the complaint was dismissed holding that the burden of proof was on the stock claimants and they had not sufficiently stated their claim. The case was appealed to the Supreme Court of Wisconsin.


Was the trial court's dismissal proper?




The court held that, as a matter of law, the stock claimants did not prima facie prove a cause of action that would properly permit a jury resolution. The court found overwhelming evidence demonstrating that the president had no intention to transfer the stock in trust for the benefit of the stock claimants. The court noted that the company filed consolidated tax returns based on the company continuing to own the stock and dividends were paid to the company. The court opined that the trustee was only given a power of attorney to transfer the stock on the company books. The court concluded that the stock claimants did not present a triable issue on the creation of a trust and did not make a minimal showing of an absolute gift inter vivos. The court opined that the action was for replevin, but the facts failed to show any likelihood that the stock claimants could prove a contract.

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