53 Wis. 522 | Wis. | 1881
A demurrer to the complaint on the grounds, first, that several causes of action were improperly joined, and second, that no cause of action is stated, was overruled, and the defendants appealed. The facts are substantially stated in the complaint as follows:
The defendants signed with the plaintiff a note for $300, to one Downer, for the purchase by the plaintiff of him of standing timber on a certain tract of land, and the plaintiff gave to the defendants a mortgage upon such timber, to secure them against the payment of the note, and in such mortgage it was agreed that the timber, when cut, should be carried to the mill of the defendants to be manufactured into lumber, and that such lumber should be sold, and the proceeds applied to the payment of the note. Afterwards, the plaintiff became indebted to the defendants in the sum of $é50, more or less (the real amount not then ascertained), on book account, and it was agreed between the parties that such timber should be transferred by the plaintiff to the defendants; that it should be manufactured into lumber at their-mill; and that they should sell a sufficient quantity thereof to p'ay the Downer note and satisfy and discharge their account against the plaintiff, and to reimburse them for the cost of manufacturing, and should return to the plaintiff the balance of the proceeds, if any, and the remaining logs or lumber unsold.
Accordingly the plaintiff executed a bill of sale of the timber to the defendants for the purpose-of carrying out such arrangement, and for no other purpose, and the defendants
The complaint is long, rambling and somewhat incoherent, and contains here and there allegations of conversion and money demands, which appear, on casual reading, to state several and inconsistent causes of action, but which are really unnecessary to the general scope and purpose of the complaint; and they are stated as facts in the general history of the case, rather than as legal conclusions indicating the form of the action; and by a liberal construction of the complaint the}r should be so considered. The complaint clearly shows a necessity for an accounting by the defendants of the logs and lumber, and the proceeds thereof which came into their hands, as well as a discovery of their claims against the same; and, besides, it states a trust in the defendants of the property con
The objection that the complaint states facts outside of the written agreements of the parties, which, if proved by parol, will vary or add to such written agreements, and that therefore such facts, if necessary to the statement of a cause of action, cannot be considered, is not well taken; for the whole contract may be sufficiently ascertained from the mortgage and agreement therein, the bill of sale, and the written agreement to reconvey the property after the payment of the claims upon it, with such proof of the situation of the property and the circumstances under which the written agreements were made, as the law allows in all such, cases. Sigerson v. Cushing, 14 Wis., 527.
The view we have taken of this complaint seems to be different from that of the learned counsel of the respondent in his brief, for it is claimed by him that .it states a clear cause of action in trover, and, at the same time, asks for both equitable and legal relief, and that it is not a case for an accounting,
The complaint states that an accounting has been demanded and refused, and certainly the general prayer is broad enough to entitle the plaintiff to such relief, if the facts warrant it; and, in order to give the plaintiff the relief which he specifically prays for, an accounting is necessary. Here the defendants, under the contracts, had a right to the possession of the logs and lumber, and the right to sell the same and apply the proceeds to certain specific purposes. They have sold the property, but have not applied the proceeds to such purposes. They still have the right to so apply the proceeds, because by the contract they are to be applied to the payment of their own claims against the plaintiff and of the note for which they stand security; and indeed the complaint asks that such application of the proceeds be made. The defendants have by sales converted the property into money to an amount greater than necessary to liquidate such claims, and retain in their hands such indefinite overplus of moneys, and an indefinite portion of the’ logs and lumber unsold, to ascertain which an accounting had been demanded, and when ascertained the plaintiff asks that the residue of such money and property be returned to him. It is impossible to find any action at law in which this full relief can be obtained.
In cases of trusts in relation to particular chattels, a bill in equity will lie to enforce the trusts and compel a retransfer of the property. 2 Story’s Eq. Jur., §§ 724, 1032; Upham v. Brooks, 2 Story C. C., 623; Clark v. Flint, 22 Pick., 231; Wilkins v. Sears, 4 Mon., 344; Field v. Beeler, 3 Bibb, 19; Reed v. Lansdale, Hardin, 6; Shannon v. Speers, 2 Marsh., 311; Geisse v. Beall, 3 Wis., 367; Barr v. Lapsley, 1 Wheat., 151; Mech. Bank of A. v. Seton, 1 Pet., 305.
We dislike to be compelled to define and classify the action in such a case, where the complaint is so indefinite and con- .
By the Court. — The order of the circuit court is affirmed, and the cause remanded for further proceedings according to law.