Riley v. Riley

34 Wis. 372 | Wis. | 1874

Dixon, C. J.

This is a case of a kind which rarely finds its way into this court, and is a proper one for the application of the rule that where the complaint states no facts constituting a cause of action, and the defendant objected to the receiving of any evidence under it on that ground, the judgment, if for the plaintiff, will on appeal be reversed by this court. Such is the rule recognized in Bowman v. Van Kuren, 29 Wis., 209, 215, and settled by the decisions of this court in Smith v. Whitney, 22 Wis., 438, and Smith v. Weage, 21 id., 440. See alsenote in 5 Wis., new edition, Appendix, p. 629, and cases there cited. Such is the complaint in this case, and such the objection which was taken in the court below.

The complaint, and all the allegations of fact in it, are substantially set forth in the printed case, as follows : “ The complaint shows that on the 31st of March, 1870, the plaintiffs were owners of the northeast quarter of the northeast quarter of section 32, and the southwest quarter of the southeast quarter of section 29, in the town of Sherman, Sheboygan county ; that the plaintiffs being then old and infirm, and therefore incapacitated from attending properly to business, the defendant Maühew Riley, on that day, fraudulently taking advantage of plaintiffs’ incapacity, procured them to sign a certain writing, without any consideration, falsely and fraudulently representing said writing to be a mere matter of form, or will and testament ; that the plaintiffs, on the 3d of November, 1870, applied to the defendants for the writing, or information of its contents; that the defendants refused to allow them to see the writing, or give them information of its contents ; that the plaintiffs are informed and believe that said writing is a warranty deed of said premises, or some interest therein, to the defendant Matthew Riley, and that he intends to use the same for his own benefit to the prejudice of the plaintiffs.”

“ It asks judgment that the same is void, and that it be can-celled, or for a reconveyance.”

It is impossible that a complaint of this kind should escape the severest condemnation and censure. The gravamen of the action is tbe fraud wbicb was practiced by tbe defendant upon the plaintiffs, in the procurement of the conveyance; and yet the complaint contains almost no statements of fact at all going to show in what the fraud consisted, or how or by what means it was perpetrated. It is true, it indirectly alleges that the plaint-tiffs were old and infirm, and therefore incapacitated from attending properly to business ; but why “ therefore incapacitated from attending properly to business?” It is not every old person, or every person who is feeble or infirm on account of age or otherwise, that is thereby incapacitated from attending to business, or from properly entering into or conducting transactions of the kind mentioned in the complaint. The infirmities and feebleness of age are frequently such as not seriously to interfere with such negotiations, or to render the parties incapable of entering into them. To say, therefore, of a person that he is old, infirm or feeble, is not to say that he is incapacitated from properly attending to business; for he may be all these and yet be quite capable of doing business. To allege age and infirmity is not, therefore, to allege incapacity, and the conclusion of incapacity does not necessarily or logically follow. Besides, the pleading does not inform us whether it is bodily or mental infirmity which was intended. These may coexist, or one may exist without the other. It is mental infirmity, or weakness and incapacity of mind, which will avoid the conveyance ; and if that was the kind intended, the pleader should have so distinctly alleged. And there should have been alleged, in addition, the facts showing the mental condition of the plaintiffs, and not a mere general allegation of mental weakness and imbecility. Their ages should have been given, and the infirmities under which they labored pointed out by appropriate aver-ments. The facts of age and feebleness of mind, or of both mind and body, together with any other circumstances illustrating the condition of the plaintiff, as illiteracy, want of bus-siness experience, or the like, should have been stated, so that, upon a demurrer admitting the facts alleged, the court could have pronounced the incapacity.

And it is also true that the complaint charges, in a most vague 'and indefinite way, that the defendant, “ fraudulently taking advantage of the plaintiffs’ incapacity, procured them to sign a certain writing without any consideration, falsely and fraudulently representing said writing to be a mere matter of form, or will and testament.” It requires no comment to show the lack of precision and point in this averment — none to show the absence of all the facts and circumstances by means of which the fraud was accomplished or the false representation made successful. • It is not averred how the representation was made, whether by a. false reading of the document or other concealment of its contents, or the not reading it all, or whether it was in some other way or by some other means that the deception was effected. The pleader might almost as well charge no false representation, and then attempt to come in with evidence to prove it, as to charge it in this way and seek to introduce his proofs. The difficulties and embarrassments of the defendant in endeavoring to prepare for and to resist the charge, must be about the same in either case. As observed at the commencement of this opinion, it is seldom that a pleading so defective and wanting in the proper and necessary aver-, ments of fact, reaches this court. The statements are too bald and meagre to be supported under any circumstances or by the most liberal rule of construction, even that which prevails on objection to any evidence being received at the trial, where the greatest latitude of-indulgence in favor of the pleading is allowed.

And the allegation of the falsity of the representation, or that it was “ falsely and fraudulently ” represented, and that the defendant “fraudulently” took advantage of the plaintiffs’ incapacity, are of themselves of no effect as averments of fact going to show a cause of action. They are statements or words which may be properly enough used to adorn the pleadings and to give direction and emphasis to the intention of the pleader in actions of this nature, when the facts constituting the fraud or showing the manner of its perpetration are also distinctly averred. In Supervisors of Kewaunee County v. Decker, 80 Wis., 634, this court, following the lead of an earlier decision, and announcing what it has always understood to be the law, said: “ A general charge that a party acted fraudulently, falsely or wrongfully, or that he made fraudulent representations or statements, amounts to nothing; there must be a specification of facts to justify it. It is at most but a mere inferential statement, too vague and uncertain to apprise the opposite party of what is meant to be proved, in order to give him an opportunity to answer or traverse it, or to inform the court whose duty it is to declare the law arising upon the facts.”

We are satisfied, therefore, that such inattention and laxity in pleading as are exhibited in this case ought not under any circumstances to be tolerated where objection is in any manner seasonably taken, and that the court below should have sustained the objection to the admission of any evidence under the complaint, until, by leave of the court or otherwise, the same was put in shape to make the evidence receivable according to the rules of pleading governing in such cases.

For this error the judgment of the court below must be reversed, and the cause remanded for further proceedings according to law.

By the Court. — So ordered.