Horn v. Ludington

| Wis. | Jan 15, 1871

LYON, J.

This is an appeal from an order of the circuit court denying a motion that the plaintiff be required to make his complaint more definite and certain in the several particulars specified in the motion.

The complaint alleges that for a long time before, and until the summer of 1870, the defendant Ludington held in his name the legal title to certain property therein described, for the ben-fit of, and in trust for, the plaintiff and the defendants Cross, Ludington, Scott and Hobart, who, it is alleged, are the owners and tenants in common thereof in equal shares; that Ludington, while he held the title thereto, commenced negotiations with the defendant the Milwaukee and Northern Eailway Company, to sell the same to that corporation for twenty thousand dollars ; that pending such negotiations he executed a conveyance thereof to the defendant Donaher, pretending to have actually sold the same to him for about five thousand dollars; that the conveyance to Donaher was not made in good faith, but was without consideration, and made by Ludington to defraud the other owners of the property, particularly the plaintiff, out of the same, and to prevent them from receiving the proceeds of the sale thereof then being negotiated with said company, and that Donaher knew of the interest of the plaintiff in such property ; that Ludington continued his negotiations with the railway company, and has consummated an agreement with it, by which the company is to pay him twenty thousand dollars for the property, but which sum has not yet been paid, and he is to deliver to the company a conveyance of the property to be executed by Donaher; that Ludington denies that plaintiff is a ■part owner of said property, pretends that he has no interest therein, and declares that be will not divide the proceeds thereof with the plaintiff. The complaint further alleges, in general terms, that the plaintiff rendered services, personal and professional, in the protection and management of such property, of the value of upwards of five thousand dollars, and paid, laid out and expended money in that behalf and for the benefit of the owners to the amount of about fifteen hundred dollars, all which he did after he acquired such interest in the property, and at the request of the owners, and pursuant to an agreement with them at the time he acquired such interest, and as the consideration therefor.

The object and purpose of the action is to enforce the execution of the alleged trust by compelling a conveyance of the property to the owners, and, if that cannot be done, to secure an equitable division among them of the proceeds of the sale thereof.

The particulars specified in the motion relate, first, to the allegations of the existence of such trust, and, secondly, to the statement of the services rendered and the money paid by the plaintiff, as the consideration for his interest in such property.

The Revised Statutes, chap. 125, sec. 2, subdivision 2, provide that the complaint shall contain “a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition.” Here the cause of action is the alleged trust, the same as m a money demand on contract the debt is the cause of action. If there be no debt, there can be no recovery ; and in this action, if there is no trust, the plaintiff cannot recover. The cause of action, to wit, the trust, is stated in the complaint, but the facts constituting such cause of action, to wit, the facts which make Ludington a trustee of the plaintiff and others in respect to the property m controversy, are not therein stated. We think, therefore, that the plaintiff should have been required to make his complaint more definite and certain in this particular, by stating therein facts which will show that Ludington holds the title to the property as such trustee.

As to tbe statement of tbe services rendered and money expended by tbe plaintiff in tbe protection and management of tbe property, if, in tbe progress of tbe action, it should become material to ascertain tbe extent and value of sucb services, and tbe amount of money so paid, and tbe purposes to wbicb it was applied, tbe court may require tbe plaintiff to furnish a bill of items of tbe same, and may, and doubtless would, order a reference for tbe purpose of having tbe account thereof stated. Tbe appellant will thus be furnished with tbe specific information wbicb be desires, if it becomes material that be should have sucb information. We think the complaint sufficiently definite and certain in tbe latter particular.

By the Court. — Tbe order appealed from is reversed, and tbe cause remanded with directions to tbe circuit court to grant tbe motion, requiring tbe complaint to be made more definite and certain to tbe extent indicated in this opinion.