Somervaill v. McDermott

116 Wis. 504 | Wis. | 1903

Dodge, J.

In meeting the grounds of the demurrer, the natural sequence of inquiries is: First, whether any cause of action cognizable in equity is stated; and, secondly, if any is stated, whether more than one appears not properly join-able with the other. In answering these inquiries, the complaint is entitled to liberal construction, to effectuate the apparent purpose of the pleader, and enable the doing of justice in the situation laid before the court. Sec. 2668, Stats. 1898; Pfister v. Sentinel Co. 108 Wis. 572, 581, 84 N. W. 887. Thus proceeding, one finds, as the general ground of' complaint, sufficient allegation that through many years the defendant, as a fiduciary, and in a position of special trust and confidence, acquired control of many and divers amounts-of his principal’s money, some known, some partly known, and some unknown, some from her, and some from others for her, all of which his duty required him to apply to her benefit; that he has made no accounting of his dealings with these moneys, and that the facts in relation thereto are all within his knowledge, and many of them not within the knowledge of the plaintiff, nor, indeed, of the deceased principal. The court, in the exercise of its equity powers, is prayed to require of the defendant an accounting of his stewardship, and the payment to the administrator of such sums as the accounting shall disclose remaining in the hands of the fiduciary. In such situation, the ability and duty of equity courts to act has always been recognized. No sufficient remedy exists in the common-law right of plaintiff to •sue for the money due, burdened with the necessity of alleging and proving in the first instance both the fact and the amount of snch indebtedness. Under such circumstances, the burden of disclosure should rest upon him who has enjoyed ■the trust and has the knowledge. Lessel v. Zillmer, 105 Wis. 334, 339, 81 N. W. 403. One of the weapons of a court of equity, namely, a command that he account, is appropriate and necessary to cast this burden upon the defendant. The judgment for payment of money, although also in the power of a law court, is, of course, appropriate to equity, in carrying out the policy of doing complete justice, when once its .jurisdiction has attached. Schwickerath v. Lohen, 48 Wis. 599, 4 N. W. 805; Merrill v. Merrill, 53 Wis. 522, 10 N. W. 684; Rippe v. Stogdill, 61 Wis. 38, 20 N. W. 645. No sufficient answer to this right of a principal to compel an accounting by an agent is presented by appellant’s argument that as to some of the items, properly a part of such account, the plaintiff might maintain action at law. This is true in all such cases, for each misapplication or misappropriation of liis principal’s money arouses a constructive contract to repay it, upon which an action at law in assumpsit may be predicated, but only with the burden of specific allegation and proof, from which the fiduciary relation entitles plaintiff to be exempt, as above stated. Such remedy is not so fully adequate as to deprive plaintiff of his right to bring the agent to an accounting of all his transactions with the fiduciary property or money in one action; thus relieving the former from the original necessity of specifying and proving in detail the various breaches of trust, as well as from a multiplicity of suits. In this respect the situation at bar differs entirely from that presented in Allen v. Frawley, 106 Wis. 638, 82 N. W. 593. There, there was no charge of improper dealing with property held in fiduciary capacity, and no multiplicity of transactions, — merely the single .act of obtaining from plaintiff specific property by deceit; and we held that action, at law to recover the proceeds of that property was-adequate remedy.

The contention that the canse of action above described, does not survive is so completely refuted by the authorities as to hardly require discussion. Allen v. Frawley, supra, p. 642; Killen v. Barnes, 106 Wis. 546, 82 N. W. 536;, Cheney v. Gleason, 125 Mass. 166; Houghton v. Butler, 166 Mass. 547, 44 N. E. 624. Whether it be viewed as an action to enforce a trust or to recover on implied contract, the cause' of action survived at common law, and no support for such result is needed from sec. 4253, Stats. 1898. The cause of' action arising from deceit and fraud, which did not survive-at common law, and which we have held not to be given survival by that section, is the recovery in tort for the damages suffered by the plaintiff. Farwell Co. v. Wolf, 96 Wis. 10, 70 N. W. 289, 71 N. W. 109; Lane v. Frawley, 102 Wis. 373, 78 N. W. 593; Allen v. Frawley, supra; Killen v. Barnes, supra. The complaint at bar discloses no attempt to recover, in tort, plaintiff’s damages, but only defendant’s: gains, upon implied contract or resulting trust.

2. Is there misjoinder of causes of action? Erom what has been said, it is apparent that we construe the complaint as stating a cause of action in equity to obtain an accounting, and payment of the amount of money such accounting shall' disclose to be due to the estate of Margaret Somervaill,. deceased. Such right of action is, of course, in the administrator only. It is none the less single because it involves numerous items of property for which defendant is sought to be charged, nor because different items of property or money came into his fiduciary control in different ways,— some from the plaintiff by fraud, and some, from others for-her, innocently. His disposal of all these is sought to be investigated, and his net responsibility therefor ascertained and enforced. True, the complaint seeks rescission of certain conveyances of land, and return of the ostensible title to defendant, but seeks it only as a necessary adjunct to tbe main purpose of compelling bim to account for tbat wbicb be wrongfully detains, ancillary and germane thereto. Sucb a complaint presents no misjoinder of causes of action. Bassett v. Warner, 23 Wis. 673; Gager v. Marsden, 101 Wis. 598, 77 N. W. 922; Zinc Carbonate Co. v. First Nat. Bank, 103 Wis. 125, 139, 79 N. W. 229; Level L. Co. v. Sivyer, 112 Wis. 442, 451, 88 N. W. 317. Much of appellant’s argument on this branch of the case seems to flow from the presence of the heirs at law as plaintiffs. The relevancy of that circumstance to a demurrer on the ground of misjoinder of •causes of action is not very apparent. Misjoinder of parties plaintiff is not raised thereby, unless, indeed, there be several •causes of action in favor of different plaintiffs. Of that, as already stated, we find nothing. The one cause of action stated is in favor of the administrator. The presence of the heirs at law as parties to the action is rendered necessary merely because, to render possible the complete relief sought, the decree'must divest them of the formal legal title to certain real estate. To this end, they, as well, — perhaps more properly,’- — might have been made defendants; but in equity the arrangement of parties is of little importance, and can be regulated by the court at any time, in its discretion. Gager .v. Marsden, supra.

By the Court. — Order appealed from is affirmed.