139 Wis. 145 | Wis. | 1909
The disposition of this appeal necessitates the consideration of the following questions: (1) Was the contract sued on assignable? (2) Was the question of its nonassignability raised by the pleadings? (3) Was the defendant precluded from insisting upon thé defense of nonassignability ?
1. It is established that the Industrial Construction Com
2. It is urged that the question of assignment is not before the court because it is not put in issue by the pleadings. The •complaint alleged the assignment of the contract sued upon. This was a necessary allegation because the plaintiffs depended on such assignment for their right to recover. The .answer put this allegation in issue by a general denial. Since the plaintiffs relied upon the fact of assignment to prove any •cause of action at all, the general denial put the averment of assignment in issue.
“The general rule under the Code is that any matter of fact alleged in the complaint which the plaintiff must establish to make out his cause of action may be disproved under a general denial.” Hilliard v. Wis. L. Ins. Co. 137 Wis. 208, 117 N. W. 999, 1000, and cases cited.
It was incumbent upon the plaintiffs to prove a valid assignment in order to show that they had a cause of action, unless the assignment was admitted, which it was not. Their proof failed to show that they had a cause of action, because no valid assignment was shown. If it be claimed that the •complaint itself failed to show a valid assignment and therefore did not state a cause of action, such defect is not waived by failure to demur. Sec. 2654, Stats. (1898).
3. No facts were shown which would establish a ratification of the assignment by the defendant- or an estoppel which would preclude him from denying liability. The defendant •did not know that the contract had been assigned until after the plaintiffs claimed that the work had been completed and had secured a certificate from the executive committee to that effect. Neither did the other subscribers generally know of •such assignment, and what evidence there is on the subject lends to show that even the executive committee did not know
It is unnecessary to consider other errors discussed.
By the Court. — Tbe judgment of tbe circuit court is reversed, and tbe cause is remanded with directions to set aside tbe order directing a verdict in plaintiffs’ favor, and to grant tbe defendant’s motion for a directed verdict in bis favor, and for judgment dismissing tbe complaint.