Martin v. Atkinson

64 Wis. 493 | Wis. | 1885

Tatloe, J.

In the county court, upon the case being ready for trial, and a witness having been called on the part of the plaintiff, the defendant objected to any evidence being introduced, on the ground that the complaint did not state facts constituting a cause of action. The county court sustained the motion, and, no offer having been made to amend the complaint, the court directed a verdict for the defendant, and judgment was entered thereon in favor of the defendant, and the plaintiff appeals to .this court.

Though this action was commenced in a justice’s court, the plaintiff’s complaint was in writing, and therefore subject to the objection that it did not state facts constituting a cause of action. And although the courts will, in order to sustain the complaint, give its allegations a liberal construction, yet where, after giving it such liberal construction, there is no cause of action stated, the objection must prevail; and, unless the plaintiff asks leave to amend, the objection is fatal to his maintenance of his action.

In the case at bar we think the learned county judge was right in his ruling. There can be no doubt but that the cause of action intended to be set out in the complaint was an action for a breach of contract in not weighing the cattle at the South hay scales, in the city of Fond du Lac, and weighing them at the North scales, a mile or more distant, and that, by so doing, the defendant lessened the weight of the cattle several hundred pounds, and that he deducted the twenty-five pounds agreed to be deducted by the plaintiff from such lessened weight, instead of from the greater weight, had they been weighed at the South scales. The difficulty with the complaint is that it does not allege any contract entered into between the parties that the cattle should be weighed at the South scales in order to fix the weight from which the deduction was to be made, nor is there a statement of facts from which such contract can be inferred.

It seems to us very clear that in an action for a breach of contract there must be an allegation that a contract, stating its substance, was made between the parties, or else there must be a clear statement of facts upon which a contract can be predicated. This complaint fails in both these respects.

By the Court.— The judgment of the county court is affirmed.