South Side Lumber Co. v. John Eller Lumber Co., 161 Wis. 399

South Side Lumber Co. v. John Eller Lumber Co.

161 Wis. 399 | Wis. | 1915

Kerwin, J.

That the complaint states a cause of action is clear and is not seriously denied by the appellants, therefore no time need be spent in discussing the demurrer on that, ground. It is insisted by counsel for appellants that several-causes of action are improperly united in the complaint. It-is argued that there is a separate cause of action stated against the defendant Stephen H. Flier united with a cause-of action against the other defendants except the defendant Knauer, which two causes of action are united with a third against the defendants except the defendant Eller Lumber-Company. It is contended that the issues-in these alleged separate causes of action are in no way related to each other- and do not affect all the parties to the action, therefore cannot be joined.

We think the intention of the plaintiff in drafting the complaint was to state but one cause of action and that the complaint is capable of that construction. There are specific allegations that all of the defendants except the defendant Knauer-fraudulently colluded together'to defraud the plaintiff out of' its property; that Stephen H. Eller as vice-president, treasurer, sole manager, and pretended president of plaintiff' *403fraudulently and unlawfully transferred, converted, and delivered unto tbe defendant John Eller Lumber Company and the defendant George F. Eller large quantities of goods, wares, merchandise, and money of the plaintiff without accounting and paying therefor. It is further alleged “that the defendants jointly and severally unlawfully held said goods, merchandise, and money and have converted the same into cash for their own use, to the damage of the plaintiff in the sum of $30,000.” The other allegations of the complaint respecting the unlawful and corrupt conversions by the defendant John Eller Lumber Company, Stephen H. Eller, and George F. Eller and the taking of title to real estate purchased with the money of plaintiff manifestly relate to the collusive agreement made and entered into by the defendants. At least such construction may fairly be inferred from the whole complaint. Laun v. Kipp, 155 Wis. 347, 145 N. W. 183, and cases there cited; Sullivan v. Ashland L., P. & St. R. Co. 156 Wis. 445, 146 N. W. 506. Looking at the whole complaint, it may fairly be inferred that the intention of the pleader was to charge collusion or conspiracy between all of the defendants except Knauer to defraud the plaintiff, and that they carried out such collusive agreement by the conversions set up in the complaint.

The complaint charges “collusion” between the defendants, and this court has held that under certain circumstances collusion is synonymous with conspiracy. Miller v. Bayer, 94 Wis. 123, 68 N. W. 869. To constitute conspiracy no express agreement is necessary. An understanding or tacit concurrence in mental intent to effect the common purpose is sufficient. Patnode v. Westenhaver, 114 Wis. 460, 90 N. W. 467.

The fact that the title to some of the property alleged to have been unlawfully converted was placed in defendant Knauer made her a proper party defendant. Sec. 2603, *404Stats.; Draper v. Brown, 115 Wis. 361, 91 N. W. 1001; Grady v. Maloso, 92 Wis. 666, 66 N. W. 808; Sullivan v. Ashland L., P. & St. R. Co. 156 Wis. 445, 146 N. W. 506.

The complaint is based upon one primary right — accounting and recovery of property fraudulently converted under a collusive agreement between all of the defendants except the-defendant Knauer, and she is a proper party under the statute and repeated decisions of this court.

By the Court. — The orders appealed from are affirmed.