73 Wis. 339 | Wis. | 1889
This is an appeal from an order of the circuit court of Milwaukee county, striking out a demurrer of the defendant to the complaint of the plaintiff as frivolous, on motion of the plaintiff. The order striking out the demurrer allows the defendant to answer the complaint within twenty days from the date of the order on the payment of $10 costs.
Upon an appeal from such order this court has repeatedly held that the order of the circuit court will not be reversed unless it appears that the demurrer was well taken. The question whether it was frivolous or not will not be considered by this court. See Hoffman v. Wheelock, 62 Wis. 434, and cases cited in the opinion in that case.
Was the demurrer well taken? We think this question was decided rightly by the court below. The complaint substantially alleges that on the 10th day of January, 1888, the plaintiff and one Thayer were in possession of and the owners of a lot of live hogs at Oresco, in the state of Iowa; that about that time the plaintiff, with the assent and knowledge of his co-owner, delivered the hogs to the Chicago, Milwaukee & St. Paul Eailway Company at Cresco, and with the assent of said Thayer the said hogs were consigned in the name of the plaintiff alone, tó be transported and delivered by said railway company to the defendant, si commission merchant at Milwaukee, Wisconsin, to be sold by said defendant for the plaintiff, and to account to the plaintiff for the net proceeds or value thereof. The complaint then states that after the property had been shipped and consigned as above stated, but before the same started on its way to Milwaukee, the plaintiff made a verbal agreement with one Harris, whereby plaintiff was to sell to said Harris said hogs, on the payment to him of the cost thereof,
The complaint then alleges that after the making of the agreement with Harris, he (Harris), without the knowledge and consent of the plaintiff or Thayer, induced the clerk of said railway company to change the shipment thereof, so that the same would go forward in the name of said Harris as consignor, and the shipment was so changed, and the hogs were forwarded to said defendant in the name of Harris'as consignor; that the defendant received the hogs on or about the 10th of January, 1888, and sold the same, and received upon such sale the sum of $824.15, above all expenses of sale and transportation. The complaint further alleges that before the receipt of said hogs by the defendant, and before the sale thereof by him, the defendant had full notice of plaintiff’s ownership of and rights in and to the proceeds or value thereof, and plaintiff duly demanded of him such value before the receiptor sale thereof by the defendant, but, notwithstanding this, said defendant unlawfully, and without the plaintiff’s, or plaintiff’s and said Thayer’s, consent, converted to his own use the value of said hogs, viz., the sum of $824.15, and refused, and still refuses, to pay or account to plaintiff, or to plaintiff and Thayer, therefor, though due demand has been made on him by plaintiff so to do.
The complaint then sets out that the defendant refuses
The complaint then alleges an assignment from Thayer to the plaintiff of all his interest in the hogs, and all his interest in or claim against said defendant for the value of said property or damages for its conversiones aforesaid.
It seems to us very clear that, upon the facts stated in the complaint, the plaintiff is entitled to recover from the defendant in some form of action the amount received by him on the sale of the hogs in question, less the expenses of transportation and sale. Thé facts stated being admitted, they clearly show that Harris had no claim to the possession of the hogs, or to the proceeds of their sale, unless they brought more than $925, and the facts alleged show they did not bring that amount. The facts stated also show that the defendant knew before he received the hogs on the consignment of them to him by Harris, that Harris did not own the hogs and was not entitled to the proceeds of the sale, and that the plaintiff was entitled to such proceeds. The facts stated also show that the defendant has denied the right of the plaintiff to such proceeds, and has on demand refused to pay them to the plaintiff, or to plaintiff and Thayer. These facts clearly show an indebtedness of the defendant to the plaintiff, which the
But it is insisted by the learned counsel for the appellant that the complaint must be construed as stating an action in tort to recover for the conversion of the money received by the defendant on the sale of the hogs made by him as the agent of the plaintiff, and that, giving that construction to the complaint, it fails to state facts showing a tortious conversion of the proceeds of the sale by the defendant, and that the demurrer was therefore well taken. The only allegation in the complaint which can be construed as tending to show that the plaintiff may have intended to charge the defendant with a tort, and to proceed against him for the' recovery of damages for such tort, is the following: After stating the facts showing that the plaintiff was entitled to the proceeds of the sale made by the defendant and that the defendant had notice of such fact, it is alleged that “the plaintiff demanded of him sueh value before the receipt or sale thereof by the defendant; but, notwithstanding this, said defendant has unlawfully, and without plaintiff’s, or plaintiff’s and said Thayer’s, consent, converted to his own use the aforesaid value of said hogs, to wit, the sum of $824.15, and refused, and still refuses, to pay or account to plaintiff, or to plaintiff and said Thayer, therefor, though due demand has been made on him by the plaintiff so to do.” The prayer for judgment is not for damages for the tortious conversion of the hogs or-the proceeds thereof,but for the said sum of $824.15, with interest from January 10, 1888, and costs.
These allegations, we think, must be construed to mean that the defendant had the right to sell the hogs as he did,
"We think this complaint should be construed as a complaint to recover from the defendant the value of the hogs
By the Gourt.— The order of the circuit court is affirmed, and the cause is remanded for further proceedings.