Crowley v. Hicks

98 Wis. 566 | Wis. | 1898

BaedbeN, J.

The appeal from the order directing plaintiff to make his complaint more definite and certain should be dismissed. The application in this respect was addressed to the discretionary power of the court, and cannot be reviewed except for abuse. There were ample grounds for the order made in this case. McCarville v. Boyle, 89 Wis. 651; Adamson v. Raymer, 94 Wis. 243.

The complaint, as challenged by the demurrer, raises two questions: (1) Does the complaint state facts sufficient to constitute a cause of action? (2) Is there a misjoinder of causes of action?

There were two demurrers, one interposed by defendants Sargent and Webster as individuals, and the other in their capacity as executors. A mere inspection of the complaint leads at once to the conclusion that it is barren of allegation of any fact to support a suit against Sargent and Webster as individuals. If-they are chargeable at all as individuals, it arises from the allegations of fraud contained in the tenth and eleventh paragraphs of the complaint, which are substantially set forth in the statement of facts. In the tenth paragraph it is said that the defendant Hieles, at the time of said auction sales, conspired and connived, with the knowledge of the other defendants, to cheat and defraud the plaintiff out of said lands, and that the other defendants, by their course and conduct in the matter, permitted Mieles so to do, and thus became liable with the estate by virtue of the fraud aforesaid. In the following paragraph the pleader states substantially that Mieles determined and declared to the other defendants that plaintiff should not be permitted to purchase said lands, and that the other defendants, by their acts in the premises, consented thereto; and that the acts of Mieles, and the consent thereto by the other defendants, were made with intent to defraud and to deceive the plaintiff. The other allegations of the complaint indicate that, in so-far as these defendants were dealing with the land, they acted in the capacity of executors; and if, as plaintiff claims, a contract was made which he is entitled to have enforced, the attempt to charge fraud upon the defendants personally avails him nothing. But, if this fact should be deemed material to the plaintiff’s right of recovery, yet the pleader has violated every canon of correct pleading by omitting to state any fact from which the conclusion of fraud may be inferred, lie contented himself with stating vague and unsatisfactory conclusions, leaving it in uncertainty as to what his real purpose was. “In alleging fraud it will not suffice to say that the party fraudulently procured, or fraudulently induced, or fraudulently did this or that, or that he committed or was guilty of fraud; the facts which constitute the fraud must be stated. Fraud is a conclusion of law. A statement that defendants.in ‘concert did, by connivance, conspiracy, and combination, beat and defraud the plaintiff out of,’ etc., does not state the facts that constituted the cause of action. It does not appear what they did; the legal conclusion — an epithet only — is applied to their acts without knowing what they were.” Bliss, Code PI. § 211; Cohn v. Goldman, 76 N. Y. 284. Tested by this rule, the complaint falls far short of stating a cause of action against the defendants as individuals, even if it be conceded that they may be joined in this action.

As affecting .the defendants in their official capacity as executors, the complaint states that in July, 1886, the plaintiff promised to pay the defendants the sum of $26,500 for this land, and the defendants Sargent and Webster promised' to receive the .same therefor, but that this court held such agreement void; that thereafter defendants notified plaintiff that said lands would be put up at auction and sold to the highest bidder; that thereafter said lands we^e put up at auction, defendant Hicks acting as auctioneer and bidding against the plaintiff; that many bids were made, and that plaintiff’s bid of $34,000 was the highest and best bid; that at said sale “ memoranda of the bids and sale were duly made and kept by the parties aforesaid.” The pleader fails to state that any sale was in fact made; but, if he had stopped here, it is possible that we might have inferred, from the statement that “memoranda of the bids and sale were duly made and kept,” that such memoranda, duly made, might have been a compliance with sec. 2304, R. S. 1878. Gunderson v. Thomas, 87 Wis. 406. This section provides that every contract for the sale of any lands shall be void unless the contract, or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party by whom the sale is made, or his lawfully authorized agent. This court has held that auction sales of real estate come within the statute, and that the memorandum, to make the sale valid, must be made by the auctioneer contemporaneously with the sale. Bamber v. Savage, 52 Wis. 110. Rut the pleader does not stop here. In the eighth and ninth paragraphs of the complaint he states that thereafter — that is, after the alleged sale before mentioned— the defendants at two different- times notified him that said lands would be sold at auction to the highest bidder for cash, and that at each of said two sales the plaintiff attended and bid upon said lands, and at each he was the highest and best bidder therefor, and that he has been ready and willing to carry out any one of his said bids, and to purchase said lands, but the defendants have refused to convey the same. Whatever inference the court might have been at liberty to indulge in to support the alleged sale first mentioned is negatived by these averments as to subsequent sales. Construing the complaint together, it is entirely uncertain upon which sale the plaintiff relies, and we are not assisted in any way by reference to the prayer for relief.

Rut conceding that he relies upon the sale first mentioned, personally, I have grave doubts as to the sufficiency of the allegations of th.e complaint in reference thereto. The alie-gation that Hides,acted as auctioneer and executor and bid at the sale against the plaintiff would seem to indicate that the sale ,was not without reserve. All the authorities agree that, in order to complete a sale at auction, there must be a bidder capable of becoming a purchaser, and an aeeeptomoe thereof bj the auctioneer, either by the knocking down of a hammer, or some other usual mode of declaring the sale complete. Bateman, Auctions (5th ed.), 1G4; Squibbs, Auctioneers, 43; 2 Livermore, Agency, 333. Every bidding is nothing more than an offer on one side, which is not binding on either side till it is assented to. There is no showing that the alleged sale was ever assented to by these demurring defendants. This court has decided that all the executors must join in the execution of the power of sale under the will under which they act. It may be doubtful, also, whether the allegation in regard to the making and keeping of memoranda of bids and sale is sufficient, even under the most liberal construction of the pleading. liad there been a positive allegation of sale at auction, followed by another that “ memoranda were duly made and kept,” we might be compelled to hold it sufficient, under the former decisions of* this court. It is, however, a loose and shiftless style of pleading, that ought not to receive encouragement.

This view of the pleading perhaps renders it unnecessary to decide the other grounds of demurrer. Eor the future guidance of parties interested, it may not be out of place to call attention to the rule regarding the joinder of causes of action in cases like this. The following quotation from Pomeroy’s Code Remedies (§ 502) seems to state the rule with sufficient clearness to leave nothing else to be said: “Another particular rule, which is but an application of the same doctrine, requires that the several causes of action against or for a given person should all affect him in the same capacity. In other words, a demand for or against a party in his personal character cannot be united with another demand for or against him in a representative character as trustee, executor, administrator, receiver, and the like. The reason usually given for this rule when applied to defendants is that the judgment upon one cause of action would be against the defendant personally, to be made de bom's propriis, while the judgment upon the other cause of action would be against him in his representative or official capacity, and not to be made out of his own property; as, for example, it might be made de bonis testatoris.” See Hoffman v. Wheelock, 62 Wis. 434.

The ground of demurrer assigned that the action was not commenced within the time limited by law will not be considered, because it fails to refer to the statute claimed to limit the right to sue. R. S. 1878, sec. 2651.

By the Court.— The appeal from the order to make the complaint more definite and certain is dismissed, and the order sustaining the demurrer is affirmed.