(dissenting). It having been determined by the trial court that the stockholders of the John Hoberg Company did direct the distribution of the Crivitz *56Company stock and. by this court that such action was lawful, I can see no foundation in fact or law for the judgment herein. In what particular manner the holding of the Cri-vitz Company stock by the stockholders of the Hoberg Company rather than by the corporation itself is inimical to the best interests of the Hoberg Company is not pointed out. In either event the property of the Crivitz' Company is subject to lawful control, disposition, or sale by the holders of the majority of the stock represented by the directors. It is immaterial whether such be directors and stockholders of the Crivitz Company or of the Hoberg Company. They are the same individuals.
The intention, impliedly at least, suggested by the judgment as having been present and controlling at the time of the purchase of the Crivitz Company stock with the funds of the Hoberg Company, that the Crivitz Company property should be held continually as a source of supply for the Ho-berg Company, could not be perpetuated by any form of judgment either in a suit in the present form or by a stockholder of the Hoberg Company if there had been no such distribution. Being part of the assets of the Hoberg Company it could be lawfully disposed of «in. the lawful discretion of the directors, and the court would be powerless to interfere. Sec. 1775, Stats.; Werle v. Northwestern F. & S. Co. 125 Wis. 534, 540, 104 N. W. 743; J. H. Lane & Co. v. Maple C. Mills, 226 Fed. 692, 697.
There is no suggestion of a showing that anything is threatened to be done or intended to be done by the holders of the distributed stock of the Crivitz Company that would be harmful to the interests of the individuals concerned as stockholders in either company, and much less anything intended or threatened to be done by the holders of the Crivitz Company stock as it was distributed that could not lawfully be done by the same individuals holding the same proportionate interest in the Hoberg Company.
*57That the plaintiff herself might have been mistaken as to the effect of what was done would not of course be sufficient to grant her any relief. Grant M. Co. v. Abbot, 142 Wis. 279, 288, 124 N. W. 264. The- court below did not find that there was any mutual mistake. It could not have been a mutual mistake of fact because the plaintiff and several others testified that there was no such action at all, others that there was, and the court found that there was such action taken at the meeting. It could hardly be a mutual mis*-take as to the law, for some at least of those interested understood that the effect of these proceedings would be to lawfully distribute the stock of the Crivitz Company among the stockholders of the Hoberg Company, and this court now holds that, such action could be lawfully done, so they at least 'were not mistaken as to the legality of the transaction.
Finally, I think the plaintiff was completely estopped from getting the relief that has been granted to her. ' She participated in the meeting in which it was done, she signed a consent, with the others, as stockholders of the Crivitz Company recognizing their proportionate interest in the same and providing for the election of directors, and she participated in the election of directors, and by such directors her husband was elected manager of the Crivitz Company.
I think the judgment should be reversed and the action dismissed.
Owen, J., dissents.The following opinion was filed November 4, 1919:
Per Curiam. The appellants move for a rehearing upon four grounds: 1. There was no finding of the trial court of any mistake of law on the part of the parties to this action. 2. The assumption by this court of the existence *58of a mistake of law was contrary to a fair preponderance of the evidence. 3. The alleged mistake of law was not such as should be the basis for equitable relief. 4. The court erroneously assumed that the plaintiff at once brought action to compel a retransfer of this stock.
Upon a re-study of this case on the motion for a rehearing the court is of the opinion that the mandate should be modified to read as follows: The judgment appealed from is reversed and the case remanded, and if the plaintiff so elects there shall be a new trial upon the question of whether or not there was such a mutual mistake on the part of the parties to this action as would entitle the plaintiff to have the transfer of the stock of the Crivitz Pulp & Paper Company set aside or the stock retransferred to the John Hoberg Company. If the plaintiff shall not, within sixty days from the filing of the remittitur in the trial court, elect to have a new trial, the complaint shall be dismissed.
Esghweiler, J., dissents.