Benolkin v. Guthrie

• Decision Date: 15 October 1901
• Citation: 87 N.W. 466,111 Wis. 554
• Parties: BENOLKIN v. GUTHRIE.
• Court: Wisconsin Supreme Court

111 Wis. 554

87 N.W. 466

BENOLKIN

v.GUTHRIE.

Supreme Court of Wisconsin.

Oct. 15, 1901.

Appeal from superior court, Douglas county; C. Smith, Judge.

Action by Claire Benolkin against C. Guthrie. From orders refusing to dismiss the action and overruling a demurrer, defendant appeals. Affirmed.

Action for deceit. The substance of the complaint is as follows: August 20, 1900, defendant, for the purpose of inducing plaintiff to take space for a millinery department in a store to be established by him in the city of Superior, Wis., and to incur the necessary expense for a first-class stock of millinery goods and the establishment and operation of such a department, falsely represented to her that he had purchased for said store a stock of goods of the finest quality,--better than was kept in any store then existing in Superior; that such stock included the various articles of the best quality for ladies' wear. Defendant knew such representations were false, but plaintiff supposed them to be true and had no means of knowing to the contrary. She relied upon such false representations, and, so relying, purchased a first-class stock of goods for a millinery department in defendant's store in accordance with his wish and at a cost of $1,121.72, and incurred other expenses in and about establishing and operating such department to the extent of $650.90, none of which expenditures would have been made except for such false representations. The stock of goods in fact purchased by defendant was of a very inferior quality and not suitable to invite such customers as would desire goods of the quality purchased and carried by plaintiff. The trade acquired by defendant would not and did not take plaintiff's goods. She sold $158.43 worth of her goods, leaving a balance on hand of the value, at cost price, of $963.29, but which, by reason of being secondhand and out of style, were not worth to exceed $321.10. Plaintiff made a lease of space in defendant's store for her millinery department in September, 1900. By reason of the premises plaintiff sustained damage in the sum of $1,298.09. Judgment was demanded for that sum with costs.

Defendant demurred to the complaint for insufficiency and upon the ground that several causes of action were improperly united. A motion was made for a change of venue on the ground of prejudice of the presiding judge, and an order was accordingly made. Thereafter, upon the ground that such order had ceased to be operative because defendant had failed to seasonably procure the transmission of the record as the statute requires, the court entertained the cause for the purpose of hearing the demurrer. In the meantime a second motion for a change of venue and two other motions were made and denied, one of such motions being to dismiss the action for failure to pay the state tax and file the complaint as required by statute. The demurrer was overruled and an order was entered accordingly. Written exceptions were filed to the following orders: (1) Order refusing to extend the time for defendant to comply with the order changing the place of trial; (2) order refusing to dismiss the action for noncompliance by plaintiff with section 2632, Rev. St. 1898, and staying proceedings on the part of defendant; (3) order denying the second motion for a change of venue; (4) order overruling the demurrer. This appeal is from the second and fourth of such orders.

Arnold & Arnold, for appellant.

J. De La Motte, for respondent.

MARSHALL, J. (after stating the facts).

It is too clear for argument that the order refusing to dismiss the action is not appealable. It did not prevent a judgment from which an appeal could be taken, therefore does not satisfy the requirements of subdivision 1, § 3069, Rev. St. 1898; and it is not claimed, and could not be, reasonably, that it satisfies any other provision of the law on the subject of appealable orders.

We have before us for consideration only the question of whether the complaint states a cause of action against defendant, though counsel have favored us with a lengthy argument to show, not only that the order which is not appealable, as indicated, is erroneous, but that two other orders, from which no appeal is taken, are also erroneous. Manifestly, we need not take further notice of that part of counsel's brief. In the argument challenging the decision of the demurrer, we find that the claim that two causes of action were improperly united in the complaint has been abandoned.

The first defect pointed out in support of the general demurrer is that the complaint shows that plaintiff did not do anything different from what she intended to do independent of the alleged wrongful conduct of defendant. That is predicated on an introductory allegation in the complaint to the effect that when respondent negotiated with appellant in respect to opening a millinery department in his store, she was “seeking a desirable location for the purpose of conducting such an establishment to cater to the best trade in the city of Superior, wherein would be kept nothing but goods of the best grade and quality of everything in the millinery line.” It can hardly be argued from that, reasonably, that plaintiff would have selected defendant's store as a desirable location for her business had he not made the false representations charged against him, or that she would, had she not relied upon such false representations, have incurred the expense alleged. It seems that the complaint fairly shows that respondent established a millinery department in appellant's store, choosing that as a...