Francisco v. Hatch

| Wis. | Mar 21, 1903

Winslow, J.

We think it clear that the trial judge was mistaken in construing the complaint as stating, or attempting to state, a cause of action upon contract. It is true that the making of a contract for the sale of land is first alleged, but these allegations are plainly inserted for the simple purpose of showing the circumstances ont of which the alleged fraud grew. It was necessary to set forth the contract in order to make clear the bearing and effect of the subsequent fraudulent acts by which the plaintiff was claimed to have been defrauded at the time the parties came together to complete the transaction. The allegations showing the making of the contract were entirely relevant, and in fact necessary, to a cause of action for fraud, while, on the other hand, the allegations of conspiracy, fraud, and concealment were entirely irrelevant and immaterial if the action was simply brought to recover unpaid purchase money.

It hardly seems necessary to consider the complaint in detail. The allegations of conspiracy and fraud resulting in damage are too plain to be overlooked, and too significant to be considered as merely historical or incidental. Again, the fact that Hitchcock was made a party, and all the appropriate allegations made which would render him liable for damages as a joint tort feasor, are very significant, and would suffice to turn the scale even in a case where the construction was really doubtful. He is not a proper party if the action be one upon contract.

The action being one in tort, the conclusion necessarily follows that the court was in error in construing it as an action upon contract. Having brought his action in tort, neither the plaintiff nor the court could change it into an action upon contract upon the trial against the defendants’ objection. ■This principle is well settled in this state.

It follows that the trial was a mistrial from start to finish. The issues between the parties have never been tried. Under this view it is unnecessary and probably improper to review-the other rulings complained of. Such a review could throw no light upon the questions which will arise upon the trial of the tort charged.

By the Oourt. — Judgment reversed, and action remanded for a new trial.