Jennaro v. Jennaro
| Decision Date | 05 October 1971 |
| Docket Number | No. 212,212 |
| Citation | 190 N.W.2d 164,52 Wis.2d 405 |
| Parties | , 9 UCC Rep.Serv. 1259 Mrs. Anton JENNARO a/k/a Mary Jennaro, Plaintiff, v. Joseph A. JENNARO, et al., Defendants-Third-Party Plaintiffs-Respondents, Arthur J. SCHMID, Jr., Third-Party Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Plaintiff, Mary Jennaro, commenced an action by service of a summons and complaint against defendants, Joseph Jennaro and Anthony Zingale. The complaint alleges that the defendants were associated with a corporation known as Truck Stop, Inc., a/k/a Jennaro Truck Center, Inc., and that they also had an interest in certain lands used by the corporation. It further alleged:
'4. That Joseph Jennaro and Anthony Zingale borrowed on behalf of the aforesaid corporations, on behalf of themselves, certain monies from the plaintiff and her deceased husband for the operation of the corporations in which they were associated and named above.
'5. That through evidence of the said obligation the said defendants executed a note, marked Exhibit 'A' and attached hereto and made a party hereof, at the West Side Bank, now known as the Continenntal (sic) Bank, as Gurantors (sic).
That the said defendants are indebted to the plaintiff in an amount of $17,000.00 and that due demand has been made by the plaintiff herein for reimbursement of the said amount, but that the defendants have failed and refused to pay the same.'
Exhibit 'A' attached to the complaint consists of two pages and appears to be two separate notes, both executed by Mary Jennaro to West Side Bank. Page 1 is a note dated December 9, 1965, in the amount of $6,000, and it states that it is secured by a mortgage. Page 2 is a note in the amount of $21,000, dated May 4, 1965, secured by a mortgage, and containing a guaranty signed by the defendants.
Defendants answered to the complaint, admitting they borrowed monies from plaintiff on behalf of the corporation they were associated with, denying it was for their own use, and further admitting the execution of Exhibit 'A' but denying that they are indebted to plaintiff in the sum of $17,000.
Defendants then served an amended third-party complaint on Arthur J. Schmid, Jr., hereinafter referred to as appellant, restating the pertinent allegations of the complaint and further alleging:
The amended third-party complaint further alleged that the note is in default, due and payable, and that the amount in default has not been paid by any of the parties. The third-party complaint prays that, if plaintiff receives judgment against defendants, the appellant should be required to pay such part of said judgment for which he may be liable.
The appellant demurred to the amended third-party complaint. From the order overruling the demurrer, this appeal is taken.
Gerald J. Bloch, Phillips, Hoffman & Bloch, Milwaukee, for appellant.
Teper & Tepper, Milwaukee, for respondents.
It is the position of the appellant that both the original complaint and the third-party complaint fail to state causes of action. Each challenge to each complaint will be considered separately.
ORIGINAL COMPLAINT.
On this appeal it is argued that the demurrer of the third-party defendant challenges the original complaint in the action, as well as the third-party complaint. Respondents defend the sufficiency of the initial complaint without disputing the right of the interpleaded third-party defendant to attack it. The reasoning of an early Wisconsin case would appear to allow a demurrer to a third-party complaint to question the initial complaint in the action since the liability of such interpleaded party is contingent upon defendants' liability under the original complaint. 1
The litmus paper by which a complaint, attacked by means of demurrer, is to be tested in Wisconsin is that demurrer fails if the complaint, liberally construed, expressly, or by reasonable inference, states any cause of action. 2 However, in applying that test, it is to be kept in mind that '(p) leadings are intended to fairly apprise the opposing party of the matters to be tried. * * * 3 What makes the question close here is that, as appellant points out, the language on the note, attached to the original compaint and made part of it, appears to obligate the defendants only as guarantors of the note. A guarantor is liable to the creditor, not the debtor. However, the plaintiff was not required and in fact did not rely solely on the attached note as an allegation of debt. As the trial court found, paragraph 4 of the original complaint specifically alleges that the defendants borrowed 'on behalf of themselves' certain monies from the plaintiff and her deceased husband. Paragraph 4 alleges that the defendants are indebted to the plaintiff in the amount claimed and that demand has been made for reimbursement and that the defendants have failed and refused to pay the same. Given the liberal construction the Wisconsin rule requires, we hold that the original complaint, by reasonable inference, states a cause of action.
THIRD-PARTY COMPLAINT.
In a demurrer, the party demurring concedes the factual assertions in the complaint, but contests the legal premises or conclusions. 4 Facts stated in the complaint are assumed to be true. 5 However, facts are not to be added in the process of giving the pleading a liberal construction. While the Wisconsin test is a relaxed one it has limits. As this court has said: '* * * While pleadings under the Code must be liberally construed, they cannot be so loosely drafted as to make them a mere hit-or-miss proposition. * * *' 6 So, as to the demurrer to the third-party complaint, the question is: Do the allegations of the third-party complaint, liberally construed but with nothing added to them, state a cause of action?
The heart of the third-party complaint is the allegation in paragraph 6: 'That on or about the month or (sic) August, 1964, the third-party defendant, Arthur J. Schmid, Jr. guaranteed the note attached to the plaintiff's complaint. * * *' The only claim is that the appellant 'guaranteed' the note. The only allegation is that appellant is liable as a guarantor of the note attached to plaintiff's complaint. That is not possible under Wisconsin statutes. Liability on a negotiable instrument is statutorily limited to persons whose signatures...
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