43 Wis. 314 | Wis. | 1877
On the trial, an objection was taken to the admission of evidence under the complaint, on the ground that it did not state a cause of action. The objection was sustained, and the complaint was dismissed. See 42 Wis., 434. The
It is said by the counsel for the plaintiff, that the court below held the complaint insufficient because it did not show that the agreement was in writing. If that was the view of the learned circuit court, it was unsound. The complaint states the agreement to convey in general terms, and it must be presumed that it was a valid agreement. Certainly the contrary presumption cannot be made because the complaint states generally the agreement. It was not necessary to allege that it was in writing. The law upon this point is well settled. It is true, the answer alleges that the agreement to convey was not in writing, but we do not see that that can affect the question as to the sufficiency of the complaint. For the objection taken to the admission of evidence under the complaint, because it did not state a cause of action, was equivalent to a demurrer on that ground. Grannis v. Hooker, 29 Wis., 65.
The law of trusts under our statute is quite fully discussed by counsel on both sides in their briefs; but, in the present attitude of the case, that question is not before us for consideration. The only question presented is as to the sufficiency of the complaint.
