Gormely v. Gymnastic Ass'n of S. Side of Milwaukee

• Decision Date: 09 September 1882
• Citation: 13 N.W. 242,55 Wis. 350
• Parties: GORMELY v. GYMNASTIC ASSOCIATION OF SOUTH SIDE OF MILWAUKEE.
• Court: Wisconsin Supreme Court

55 Wis. 350

13 N.W. 242

GORMELY

v.GYMNASTIC ASSOCIATION OF SOUTH SIDE OF MILWAUKEE.

Supreme Court of Wisconsin.

Filed September 9, 1882.

Appeal from circuit court, Milwaukee county.

T. O'Meara and R. K. Adams, for appellant.

Jenkins, Elliott & Winkler, for respondent.

TAYLOR, J.

This is an appeal from an order sustaining a demurrer to the appellant's complaint. The demurrer was sustained on the ground that the complaint did not state facts sufficient to constitute a cause of action. The substance of the complaint is that the respondent was the owner of a hall in the city of Milwaukee known as the “South Side Turner Hall;” that such hall contained a bar room and fixtures suitable for carrying on a retail traffic in liquors, cigars, and tobacco, and was suitable for and often rented to divers persons by the respondent for the purpose of parties and balls; that in or about the month of November, 1881, the respondent was desirous of leasing said hall to the appellant and for the purpose of inducing the appellant to lease from the respondent said hall, bar, and fixtures, the said respondent wrongfully, willfully, and injuriously contriving and intending to deceive, defraud, and injure the said appellant in that behalf, falsely, fraudulently, and deceitfully represented and asserted to the appellant that such respondent had the right and privilege to sell liquors, tobacco, and cigars, and to carry on the business of a retail liquor dealer and of a dealer in cigars at its said hall, and the right to permit and allow the appellant under its said right lawfully to carry on the business of a retail liquor dealer and dealer in cigars during his occupancy of its hall and bar, and at the same time offered and agreed to lease to the appellant the said hall, bar, and license and privilege of a retail liquor dealer and dealer in cigars and tobacco, for one night at and for the sum of $40 as rent therefor, and do all things necessary and required by law to be done and performed in order that the appellant might carry on said business at said hall and bar during his occupancy thereof.

The complaint further alleges that the appellant, relying upon such representations, offer, and agreement, did accept said offer and agreement, and hire and lease said hall and bar, and the right and privilege to sell and vend liquors and cigars therein for one night, for the purpose of a ball, and did occupy the same one night for that purpose, and paid the respondent $40 for the use and occupancy of said hall, bar, and fixtures, and the privilege and license of a retail liquor dealer, etc. It then alleges that the respondent had in fact no license from the United States as a dealer in liquor and cigars, and no right to sell either liquor or cigars, or to give any right to the appellant so to do, and had no license from the city of Milwaukee for the sale of liquors or beer, as required by law, and that this fact was well known to the respondent at the time of making the representations mentioned, and knew the representations were false; and further alleges that by reason of respondent having no license and no right to permit appellant to sell liquor at respondent's bar, and by reason of respondent's failure,...