Divan v. Loomis

68 Wis. 150 | Wis. | 1887

Cassodat, J.

It is said that the complaint is insufficient because it fails to aver any request of Loomis to comply with the terms of the alleged agreement. An allegation of refusal implies a previous demand, and is equivalent to an allegation of a demand and a refusal. Hammond v. Mason & H. O. Co. 92 U. S. 724; Bogie v. Bogie, 41 Wis. 220. This being so, the breach is sufficiently alleged. Such agreement to furnish Smith a home, and to take care of and assist him to live in a comfortable manner, was personal upon the part of Loomis, and could not be shifted onto Trickle, against the will and-consent of Smith.

By the Court.— The order of the circuit court is affirmed.