State ex rel. Harvey v. Plankinton Arcade Co., 182 Wis. 20

State ex rel. Harvey v. Plankinton Arcade Co.

182 Wis. 20 | Wis. | 1923

Owen, J.

It is a general rule of pleading that facts which are presumptively within the knowledge of the party pleading should be alleged positively and not upon information and belief. 31 Cyc. 108; Fairbanks v. Isham, 16 Wis. 118; Steinberg v. Saltsman, 130 Wis. 419, 110 N. W. 198, The demurrer interposed herein challenges the sufficiency of the allegation made upon information and belief which is set forth in the statement of facts. It was held in State ex rel. Dempsey v. Werra A. F. Co. 173 Wis. 651, 182 N. W. 354, that where a demand for an inspection of the books and records of a corporation was denied to the stockholder, and the demand was made by the stockholder’s attorney in fact, an allegation on information and belief was sufficient, because such facts were not within the personal knowledge of the relator.

Appellants assail the instant allegation not because the allegation of the demand and refusal was on information and belief, but because, it is claimed, the fact that Reilly, Penner & Benton were relator’s authorized agents is so alleged, while relator should have personal knowledge of that fact. There is no merit in the contention. The gist of the allegation is that a demand was made by the petitioner through his authorized agents for an examination and inspection of the accounts and books of the corporation, which demand was refused. It cannot be construed as an allegation upon information and belief that Reilly, Penner & Benton were relator’s authorized agents. True, the petition nowhere in affirmative language states that Reilly, Penner & Benton were the authorized agents of. the relator, but it is clearly and unequivocally implied from the language of the allegation, the legal effect of which is a demand for, and refusal of, the inspection of the books. The mention of the agents was merely to indicate that the .demand'was not made personally by the petitioner, and authorized the allegation upon information and belief. ■

The appeal is so devoid of merit, and we are so strongly *23impressed that the defense interposed was for the purpose of delay, that, pursuant to the discretion vested in this court by sec. 2951, Stats., the order appealed from will be affirmed with double costs.

By the Court. — So ordered.