Emerson v. Nash

• Decision Date: 14 March 1905
• Citation: 102 N.W. 921,124 Wis. 369
• Parties: EMERSON ET AL. v. NASH ET AL.
• Court: Wisconsin Supreme Court

124 Wis. 369

102 N.W. 921

EMERSON ET AL.

v.NASH ET AL.

Supreme Court of Wisconsin.

March 14, 1905.

Syllabus by the Judge.

1. “In the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed, with a view to substantial justice between the parties.” Section 2668, Rev. St. 1898.

2. “The court shall, in every stage of action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party.” Section 2829, Rev. St. 1898.

3. Applying the foregoing to a pleading on demurrer thereto every reasonable intendment and presumption is to be made in favor thereof for the purpose of supporting it. All unfavorable constructions are to be deemed subordinate to those which are reasonably otherwise, and all essentials are to be regarded as sufficiently stated which can by reasonable construction and inference be discovered in the language used.

4. A pleading is never to be condemned on demurrer for mere indefiniteness or uncertainty. The proper remedy therefor is a motion to make it more definite and certain.

5. The terms of section 2647, Rev. St. 1898, “The plaintiff may unite in the same complaint several causes of action, whether they be such as were formerly denominated legal or equitable, or both, where they arise out of the same transaction or transactions connected with the same subject of action,” should be liberally construed according to the rule as to remedial laws.

6. To constitute a cause of action there must be a right possessed by one or more persons and a violation thereof by another or others. The basic element is commonly called a “primary right.”

7. The “primary right” spoken of is not the transaction of the statute. That is distinct from the immediate elements of the cause of action, since the latter arise out of the former.

8. A circumstance in which two or more persons are concerned, involving two or more remediable rights, constitutes the point of unity at which several possible causes of action may unite. Two or more causes of action may arise therefrom by violations of two or more of such rights, each right being primary in the sense that when violated the two essential elements of a cause of action constituting a wrong to be remedied exist.

9. When several such violated primary rights have such proximate relation to a major circumstance that it may reasonably be said that in the regular course of events the latter is the source of the former, then several causes of action arise out of such circumstance, within the meaning of the statute, and such circumstance is the transaction of the statute.

10. Any event in which two or more persons are actors, involving a right which may presently or by what may proximately occur in respect thereto, be violated, creating an actionable wrong, is a transaction within the meaning of the statute. All such wrongs, which in the regular course of events through the rights violated have such proximate relation to that transaction that it may be legitimately said they arise out of it, are redressible in one action regardless of the form of the remedy requisite as to each, providing they affect all the parties and do not require different places of trial.

11. The term “transactions connected with the same subject of action” refers to a different situation than “causes of action arising out of the same transaction.” The former applies generally, if not exclusively, to matters which might constitute a source of independent causes of action, yet is so germane to the primary matter, the suit being in equity, as to be regarded really a part thereof.

12. The term “primary right” used as a designation of that, which when violated will constitute a ground for judicial redress, may in an equitable action include other rights which are also primary in the sense that they might constitute separate grounds of complaint, but which by reason of their relation to the dominant purpose of the suit are deemed to be embodied therein.

13. When a contract between two or more persons on one side and two or more persons on the other creates a situation involving presently or proximately separate rights upon one side, each of which, with a violation thereof by the other side, would constitute a complete ground of complaint for judicial redress, the initial circumstance,--the making of the contract,--is a “transaction,” within the meaning of the statute, and such grounds of complaint, should they arise, would be separate “causes of action arising out of the same transaction,” within the meaning of the statute.

14. If a person contracts with another to obtain options for that other to purchase real estate in case he shall upon examination thereof elect to do so, and such person pursuant to his obligation negotiates with a third person to obtain such an option and thereby brings to such other's attention the subject of the transaction in aid of enabling him to obtain the land if he desires to do so, and before a formal option shall have been obtained such other concludes to make the purchase and does so, he thereby becomes liable to such person as upon a full performance of his agreement.

Appeal from Circuit Court, Ashland County; John K. Parrish, Judge.

Action by John W. Emerson and David W. Emerson against Thomas E. Nash and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

The following is the substance of those parts of the complaint necessary to be examined in deciding the questions raised by the appeal:

(1) February 5, 1901, plaintiffs, by an agreement in writing with defendants Thomas E. Nash and Guy Nash, which will be denominated hereafter the original contract, bound themselves to convey to said defendants, at their option, on or before April 15, 1901, certain specified lands in Ashland county, Wisconsin, at $5 per acre cash, the seller to furnish complete abstracts of title before sale.

(2) Plaintiffs therein also agreed to use their best ability to obtain for such defendants all lands in townships 40 and 41, ranges 3 and 4, and the west one-half of range 2 west, in Ashland, Sawyer and Price counties, on which the former had options, which the latter should elect to buy at the net option price, or such better terms as could be secured of the owners, plus 5 per cent. to be paid said plaintiffs for their services and expenses. And further agreed to use their best endeavors to obtain the necessary extensions of such options to enable said defendants to inspect the lands, and to procure abstracts of such lands without expense to the defendants; copies of which options were attached to the contract and marked “A,” “B,” “D,” and “E.”

(3) And further therein agreed to serve the said defendants to the best of their ability for two years, if necessary, in procuring options in their names, for the benefit of and on the best terms obtainable for said defendants, on all other lands in towns 41 and 42, in ranges 3 and 4, and the west half of range 2 west in Ashland county; the north two-thirds of town 40, ranges 3 and 4 west in Sawyer county; the north two-thirds of town 40 of the west half of range 2 west in Price county; said defendants to pay 5 per cent. commission on the purchase price of all lands which they should elect to accept. Such price to include cost of procuring original and tax titles when both were required, the cost of legal services and court and officers' fees to be borne by said defendants where the plaintiffs should be unable to get the vendors to bear the same.

(4) June 15, 1901, the time for said defendants to elect under the options was extended to September 1, 1901.

(5) Before September 1, 1901, the price for the lands mentioned in paragraph 1, was reduced to $4.50 per acre.

(6) About September 1, 1901, said defendants elected to take said lands mentioned and a binding contract in respect thereto was made.

(7) Thereafter and before September 26, 1901, said defendants assigned to defendants James B. Nash and William F. Vilas a one-half interest in the completed contract aforesaid,so that it subsisted between plaintiffs on one side and all of the defendants herein on the other.

(8) About September 26, 1901, to correct errors in the original contract and enlarge its scope, plaintiffs and defendants made articles of agreement which thereafter with said contract as corrected constituted and was treated as one entire agreement.

(9) By the first of said articles it was provided that the completed contract of purchase should embrace certain specified lands in town 41, ranges 2 and 3 west and town 42, range 2 west.

(10) Therein by the second article it was agreed by the plaintiffs to sell and convey by deed with full covenants to said defendants, if the latter should so elect within 90 days at $3.50 per acre, the seller to furnish abstracts of title, certain specified lands in Ashland county, Wis.

(11) Therein by the third article plaintiffs agreed for $2.50 per acre, to sell and convey to said defendants, by deed with full covenants, and to furnish abstracts of title, if the latter should so elect within 90 days, certain specified lands in Ashland county, Wis.

(12) Therein by the fourth article plaintiffs agreed to likewise sell and convey to defendants, if they should elect within 90 days, certain lands in township 41, range 4 in Ashland county, Wis., at $90 per 40, subject to taxes of 1898, 1899, and 1900, and to furnish abstracts of title at the expense of said defendants.

(13) Therein by the fifth article it was stipulated that the second, third and fourth articles should be deemed independent agreements, and so far as defendants should elect to buy lands mentioned in any of such articles, they should pay in addition to the price per acre agreed upon and at the time of the payment thereof, 5 per cent. as additional consideration.

(15) Said articles of agreement acknowledged payment of $7,500 on lands in article 1, and...