Chudnow Const. Corp. v. Commercial Discount Corp., 221
| Decision Date | 06 November 1970 |
| Docket Number | No. 221,221 |
| Parties | CHUDNOW CONSTRUCTION CORP., Appellant, v. COMMERCIAL DISCOUNT CORP., Defendant, Rod G. Brunton, Sr., et al., Intervening Defendants-Respondents. |
| Court | Wisconsin Supreme Court |
This is an appeal from an order overruling a demurrer. The demurrer, for failure to state a cause of action, is by the plaintiff to the complaint of intervening defendants.
The underlying action is by Chudnow Construction Corporation, hereinafter referred to as Chudnow, against Commercial Discount Corporation, hereinafter referred to as Commercial. Chudnow alleges that Commercial is the assignee of Great Lakes Homes, Inc.; and that, as such assignee, it became obligated to Chudnow on a contract previously made between Great Lakes and Chudnow. Commercial answered the complaint, but affirmatively alleged an agreement between Great Lakes and Chudnow which set forth the basis for settling the accounts. The defendants, Rod G. Brunton, Sr., and Rod G. Brunton, Jr., on their own motion have intervened, claiming that the agreement settling the accounts between Great Lakes and Chudnow provided that they paid a previously earned sum of $7,238.26. They rely upon Exhibit 'A,' which is appended to the answer of Commercial, and which is incorporated by reference in the Brunton complaint.
Exhibit 'A' provides that certain balances, listed on the writing, form the basis for settlement of accounts among plaintiff Chudnow, Great Lakes, Commercial, Rod G. Brunton, Sr., and Rod G. Brunton, Jr. It then recites that Great Lakes agrees to deliver six loads of materials to certain job sites and to honor legitimate and reasonable charges for errors of the manufacturer, damaged materials and defective materials. It then reads as follows:
'Great Lakes Homes further agrees to the following method of payment of the account.
The document, Exhibit 'A,' is unsigned.
Chudnow demurred to the complaint of the Bruntons, Jr. and Sr., on several grounds, including its alleged failure to state a cause of action. The demurrer was overruled without opinion. On appeal the only ground asserted is the failure to state a cause of action.
Clyde E. Sheets, Frank & Hiller, Milwaukee, for appellant.
E. H. Snyder, Allan Polacheck, Milwaukee, for respondents.
A demurrer admits the truth of all the allegations of fact in the complaint. Interstate Fire & Cas. Co. v. Milwaukee (1970), 45 Wis.2d 331, 333, 173 N.W.2d 187. A complaint should be liberally construed upon demurrer, and sustained when it expressly or by inference states any cause of action. Rogers v. Oconomowoc (1962), 16 Wis.2d 621, 632, 115 N.W.2d 635; sec. 263.27, Stats.
Demurrant contends that the writing, Exhibit 'A,' is not a legally binding agreement because no signatures appear upon it and there is no allegation that it was signed. Demurrant does not raise the statute of frauds and specifically disclaims that statute as the basis for its attack. It merely asserts that a written agreement cannot be effective unless it is signed by the parties.
The law is to the contrary:
'So far as the common law is concerned, the making of a valid contract requires * * * no signature unless the parties have made them necessary at the time they express their assent and as a condition modifying that assent.' 1 Corbin, Contracts, sec. 31, p. 114.
In Albright v. Stegeman Motor Car Co. (1919), 168 Wis. 557, 560, 170 N.W. 951, 952, this court followed the general rule holding:
'It is quite fundamental that parties may become bound by the terms of a contract even though they do not sign it, where their intention to do so is otherwise indicated.'
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