29 Wis. 65 | Wis. | 1871
Tbe question arising in this case is really whether tbe complaint states a cause of action. Tbe complaint contains what, under tbe former system of pleading, would be called a count for money bad and received. On tbe trial, tbe attorney of tbe plaintiff made a statement of facts to tbe court and jury out of which tbe action arose, and then proceeded to support tbe issue on tbe part of tbe plaintiff by calling and having sworn a witness. Whereupon tbe defendant objected to any evidence being given under tbe complaint, on tbe ground that it did not state facts sufficient to constitute a cause of action. This objection was sustained. Tbe case therefore stands in tbe same attitude that it would on a general demurrer to tbe complaint.
We are inclined to bold tbe complaint sufficient on demurrer. According to tbe statement made in bis opening by tbe plain- . tiff’s counsel, tbe defendant procured tbe money sued for by means of fraud in an oil land speculation. It is claimed by tbe defendant that all tbe facts in respect to tbe alleged fraud should nave been distinctly stated in tbe complaint, otherwise
The case of Lienan v. Lincoln, 2 Duer, 670, is cited by the defendant’s counsel in support of the position that a general allegation in a complaint that the defendant has received money to the use of the plaintiff is bad on demurrer. But' a just criti
By the Court — The judgment of the circuit court is reversed, and a new trial ordered.