48 Wis. 617 | Wis. | 1880
This action was commenced before a j ustice of the peace. The complaint was oral, and as entered in the docket of the justice was as follows: “ Plaintiff complains that defendant is indebted to him in manner following: for a stove lent to defendants some time in 1870 or .1871, which stove was of the value of about $45, and which defendants have never returned to plaintiff, and refused to return it when demanded; and demands judgment, with costs.”
The answer of the defendants was a general denial, and that one S. J. Plummer was a copartner with the defendants, and should be joined as a defendant in the action; also the statute of limitations. Judgment was rendered by the justice in favor of the plaintiff, and the defendants appealed the cause. At the close of the testimony in the circuit court, the defendants moved for a nonsuit, which was denied and an exception taken. The learned circuit court, among other things, charged that the action was what in law was termed an action of trover, and this charge was excepted to. There was a verdict for the plaintiff. The real question arising on the record is, whether the court below was right in treating this as an action of tort, thereby rendering the joinder of Plummer unnecessary. Upon looking at the complaint, as we must do to determine this question, it seems to us it states a cause of action ex contractu.
The plaintiff alleges, or states, that the defendants are indebted to him for the value of the stove which he lent them, and which they have never returned. The word “ indebted ” is significant, for it is a legal term, having a legal meaning, and implies a debt presently payable. It was so defined by this court in Trowbridge v. Sickler, 42 Wis., 417. It seems to us
By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for farther proceedings in accordance with this opinion.