South Bend Chilled Plow Co. v. George C. Cribb Co.

105 Wis. 443 | Wis. | 1900

Marshall, J.

The complaint, in all essential parts, is the .same as that considered on the first appeal in this case, reported in 97 Wis. 230. While the question here raised was not presented for consideration there, it was necessarily involved and was decided in reaching the conclusion upon which the decision was grounded; and the result is therefore res adgudioata of the same question, presented, as it no\v*is, as the primary subject for adjudication. Case v. Hoffman, 100 Wis. 334; Quackenbush v. W. & M. R. Co. 71 Wis. 472; Wells, Res Adjudicata, § 217. It is said that, “ Every proposition assumed or decided by the court, leading up to the final conclusion, and upon which such conclusion was based, was as effectually passed upon as the ultimate question which was finally solved.” Trustees Sch. Dist. v. Stocker, 42 N. J. Law, 115. That rule applies to a second presentation of a question in this court on demurrer to the same complaint. Noonan v. Orton, 27 Wis. 300; Fire Department of Oshkosh v. Tuttle, 50 Wis. 552; Ellis v. N. P. R. Co. 80 Wis. 459; Schoenleber v. Burkhardt, 94 Wis. 575. On the first appeal the ground of demurrer was insufficiency of facts to constitute a cause of action. In reaching a conclusion as to that, the character of the complaint and the cause of action stated therein, if any, were necessarily considered, and the result was that the complaint stated a cause of action against the officers of the George C. Cribb Company for misuse of the property of the corporation to the injury of its creditors, and for which such creditors were entitled to relief under the statutes, secs. 3237, 3239, Stats. 1898. It was held that, though there were many historical matters stated in the complaint in connection with facts essential to the purpose of the pleader, the purpose appeared with reasonable certainty to be to redress a wrong to the corporation in which the creditors were interested, and for which they were entitled to a remedy in the manner sought.

Notwithstanding the foregoing, some observations on the merits of the question presented will not be out of place, and may be helpful in other cases.

As has often been said by this court, the test of whether there is more than one cause of action stated in a complaint. is not whether there are different kinds of relief prayed for or objects sought, but whether there is more than one primary right sought to be enforced or one subject of controversy presented for adjudication. Gager v. Marsden, 101 Wis. 598. In every cause of action there must exist a primary right, a corresponding primary duty, and a failure to perform that duty. The result may be, and often is, that the wronged party is entitled to several kinds of relief. The fact that, in such circumstances, in his action to enforce the right denied, the plaintiff prays for full relief, combining several elements or objects, does not render the complaint open to demurrer on the ground of multifariousness. In testing a complaint to determine whether it is single or double as regards primary rights, the different objects in view by the pleader, as indicated by the prayer for relief, are not controlling. They are of no significance whatever, except to aid in construing the allegations of the pleader and in clearing up obscurities that may exist, as to whether he intended to state facts showing a violation- of distinct primary rights, or not. "When' there is no obscurity in that regard, the statement of facts upon which the prayer for relief is based alone speaks, and if the language shows presentation for adjudication of a single controversy, it cannot be enlarged by what follows in the prayer for relief even though it be appropriate to several distinct causes of action.

Applying what has been said to the pleading in this case, but one cause of action can be discovered which the pleader-is seeking to enforce, and that is to compel the officers of the George C. Cribb Company to account, for their official conduct in the management and disposition of the funds and property of the corporation, for the benefit of its creditors. That involves, necessarily, an adjudication as to the amount of the claims of the respective creditors, whether plaintiffs or defendants, and the rights of parties who are the guilty participants with the officers of the corporation in fraudulently disposing of or wasting its property. The facts pleaded show a single cause of action, as indicated, with such clearness that the scope of the prayer for relief cannot, by any rule of construction, change it to a statement of two primary rights violated and the presentation of two primary controversies for adjudication. The- result is that the orders appealed from must be affirmed.

By the Court.— Orders affirmed.