Magdeburg v. Uihlein

• Decision Date: 18 October 1881
• Citation: 53 Wis. 165,10 N.W. 363
• Parties: MAGDEBURG v. UIHLEIN.
• Court: Wisconsin Supreme Court

53 Wis. 165

10 N.W. 363

MAGDEBURG

v.UIHLEIN.

Supreme Court of Wisconsin.

Filed October 18, 1881.

Appeal from circuit court, Milwaukee county.

Cotzhauzen, Sylvester & Scheiber, for respondent.

Howard, Wall & Jenkins and Elliott & Winkler, for appellant.

ORTON, J.

This is an appeal from an order striking out a general demurrer to the complaint as frivolous. The action is replevin in the detinet. We hesitate to say that the demurrer in this case is frivolous in the sense of being so groundless as to be “manifestly untenable upon a bare inspection without argument or research,” and as to indicate “bad faith and trifling with the administration of justice,” and that “it was interposed merely for delay,”--the true criterion for so holding, laid down in Farmers' & Millers' Bank v. Sawyer, 7 Wis. 383, and in other cases,--and such hesitation alone is a sufficient reason for not so holding. But, nevertheless, on such a motion the court may consider the demurrer as alleging an error of pleading, and determine the sufficiency of the complaint, as on the argument of the demurrer itself, the proper practice in such cases. Diggle v. Baulden, 48 Wis. 477;Lerdall v. Charter Oak Ins. Co. 51 Wis. 426. The complaint alleges that the plaintiff is the owner of a certain envelope indorsed “Property of F. H. Magdeburg--valuable papers,” the contents thereof being a certain certificate of deposit for the sum of $20,000; that on or about the twenty-second day of August, 1879, said envelope and certificate were left for safe-keeping with the above-named defendant, who well understood and knew the contents thereof, and who then and there receipted for the same as follows, viz.:

“MILWAUKEE, August 22, 1879.

Received of W. H. Jacobs a certain envelope, said to contain valuable papers, indorsed ‘Property of F. H. Magdeburg--valuable papers.’ Said envelope and contents to be safely kept by me, and to be delivered to the owner, F. H. Magdeburg, or his legal heirs, executors, or administrators, without default or defalcation, on September 1, 1880, unless sooner delivery be assented to in writing by the party from whom said envelope was received.

+----------------------------+
                ¦[Signed]¦AUGUSTUS UIHLEIN.” ¦
                +----------------------------+
                

The complaint further alleges a demand for the possession of the envelope and contents by the plaintiff, and a refusal to deliver the same by the defendant, on the first day of September, 188C.

1. It is insisted by the learned counsel of the appellant that the affidavit of the plaintiff for a delivery of the property may be consulted, on demurrer to the complaint, as to any statements therein affecting the cause of action. It is elementary that on a demurrer nothing can be considered but the pleadingdemurred to. Zaegler v. Kuster, 51 Wis. 31;Smith v. City of Janesville, 9 N. W. REP. 789;Dalrymple v. City of Milwaukee, ante, 141.

2. That the contract or undertaking on the part of the defendant, in the receipt, to deliver the package to the plaintiff, was without consideration, and that therefore it cannot be enforced. Admitting what the learned counsel of the appellant claims, that this was a naked bailment of the package, and that the defendant was a bailee without reward, such a conclusion does not by any means follow. The consideration which gives validity to a gratuitous bailment is that the bailor suffers disadvantage on the faith...