LaRson v. Ela
| Decision Date | 10 October 1933 |
| Parties | LARSON v. ELA ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Dane County; August C. Hoppmann, Circuit Judge.
Action by Bernt Larson against Emerson Ela and others. From an order overruling a demurrer, defendants appeal.--[By Editorial Staff.]
Reversed and remanded, with directions.
Action to recover money deposited by plaintiff with defendant Union Trust Company. Defendants demurred to the complaint. The court overruled the demurrer, and defendants appealed from that order.Gilbert, Ela, Heilman & Raeder and G. Burgess Ela, all of Madison, for appellants.
Cyril E. Marks, of Madison, for respondent.
[1] In this action plaintiff seeks to recover from the defendant Union Trust Company and the defendants Ela and Steensland, as managing directors of that corporation, $1,300 which were deposited by plaintiff with that corporation for investment by it as trustee for plaintiff. It is difficult to ascertain from the complaint the nature of the cause of action, or the theory upon which plaintiff seeks to recover, but in his brief he contends that the complaint states a cause of action “in equity for breach of trust.” There is, however, no allegation in the complaint that any of plaintiff's money was ever deposited with, or received by, Ela or Steensland, or that either of them was a party to the written “Trust Agreement,” which plaintiff alleges was entered into between the plaintiff and the defendant corporation, and which is made part of the complaint. As no facts are alleged because of which any trust or fiduciary relationship appears to have existed between plaintiff and either Ela or Steensland, there is as to them no basis for an action for breach of trust. Consequently, they were entitled to have their demurrer to the complaint sustained in so far as the statement of a cause of action on that theory is concerned.
[2] As to the defendant corporation, plaintiff's allegations are insufficient to state a cause of action, because no facts are stated which constitute a breach of the trust agreement under which plaintiff entrusted his money to that corporation. That agreement provided in substance that the trustee was (1) to invest and reinvest the principal fund in lawful trust fund securities and to collect the income from such investments; (2) to pay from said income to plaintiff semiannually on the principal invested $39 until the termination of the trust; and that either party could terminate the trust at any time after one year from date, and upon such termination the securities and uninvested and unpaid trust moneys should be turned over to plaintiff, unless the trustee then elected to purchase such securities on payment of the cost price and the accrued and unpaid interest thereon. But there is no allegation in the complaint that the trustee ever failed to invest plaintiff's deposit in lawful trust fund securities, or to collect the income therefrom and pay $39 thereof semiannually to plaintiff; or that the trust was terminated, and that thereupon the trustee failed to turn over the securities and unpaid trust money to plaintiff, or to pay to him the cost price and interest thereon in accordance with the trust agreement.
There is an allegation, “That the plaintiff is informed and believes that the property that said defendants have attempted to place as security for said Trust Agreement has no value and is not worth the taxes assessed against said property.”
However, such an allegation, made in October, 1932, that the property which constitutes the security “has” no value and “is” not worth the taxes assessed against it, does not amount to an allegation that such property was without value, or was not of sufficient value, as security at the time the trustee invested the funds, which plaintiff deposited with it in January, 1923. Neither does that allegation admit of the inference that, when the trustee invested plainti...
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