McIntyre v. Carroll

• Decision Date: 20 June 1927
• Citation: 214 N.W. 366,193 Wis. 382
• Parties: MCINTYRE v. CARROLL.
• Court: Wisconsin Supreme Court

193 Wis. 382

214 N.W. 366

MCINTYRE

v.CARROLL.

Supreme Court of Wisconsin.

June 20, 1927.

Appeal from Circuit Court, Juneau County; August C. Hoppmann, Judge.

Action by Julia G. McIntyre against Jerry E. Carroll. From an order overruling a demurrer to the complaint, defendant appeals. Affirmed.--[By Editorial Staff.]

This presents defendant's demurrer to the complaint. The complaint in brief alleged the ownership for a long time by plaintiff of 50 shares of stock, par value $100, in the Mauston Electric Service Company, and of 5 shares each by her two daughters; a strong bond of friendship of 60 years between the families of the two parties, and confidence and reliance by plaintiff in defendant's honesty and integrity; that defendant was stockholder, director, secretary, and general manager of said corporation and transacted most of its business; that in December, 1924, the defendant as such officer and manager learned of the desire of another company to purchase the property and stock of the Mauston Electric Service Company and of a willingness to pay $145 per share; that in February, 1925, the defendant, with the other members of the board of directors, gave a 30-day option to the said proposed purchaser for the sale of their stock at said price, it being understood that the said purchaser would, if it exercised said option, purchase at the same price all of the rest of such stock; that in February, 1925, defendant fraudulently represented and pretended to plaintiff, in order to have her execute an option to him for the sale of the said 60 shares, that the value of the stock was then below par; that he was desirous of purchasing, so that he might obtain a controlling interest and carry out his plans for future development; failed to disclose the fact that there had been such other negotiations for the purchase of said stock and the option aforesaid, and the possible purchase of all of the stock at the price of $145; that, relying upon such situation, and confiding in the honesty of the defendant, and desiring to assist him in his declared purpose of further development, the plaintiff, on her own behalf and on behalf of her two daughters, gave defendant an option to purchase the said 60 shares of stock at $125 per share, which option defendant accepted, and purchased in March, 1925, said 60 shares for $125 per share; that thereafter, also, in March, 1925, the defendant sold the 60 shares so purchased to the other company at $143 per share; that, after learning the facts and in May, 1925, the plaintiff, on her own behalf and as agent for her two daughters, demanded that defendant pay over and account for the difference between the price of $125 and $143 per share, to wit, $1,080; that defendant refused so to do; that in October, 1925, the two daughters, for valuable consideration, sold and transferred to the plaintiff all their respective rights of action; that there is due from defendant to the plaintiff by reason of such facts $1,080, with interest from March 17, 1925.

The plaintiff prayed for judgment requiring the defendant to account for the difference between the amounts he paid and he received, to wit, $1,080, with interest, and that said sum, constituting the profits resulting from the resale of said stock, be adjudged to be held by defendant in trust for the plaintiff to be accounted for and delivered to her; that, in case such relief be for any reason denied, then that defendant be held liable to the plaintiff on account of the fraud, misrepresentation, and concealment, and be required to pay the plaintiff the sum of $1,080 damages, together with interest, together with other and further judgment as may be just and equitable.

To this complaint defendant demurred on the grounds that it appears upon the face thereof: (1) That the court has no jurisdiction of the subject of the action, because plaintiff has an adequate and complete remedy at law. (2) That the said complaint does not state facts sufficient to constitute a cause of action. (3) That several causes of action have been improperly united. Upon hearing the court overruled the demurrer and allowed defendant to plead over. Defendant excepted to the several parts of such order and appeals.Grady, Farnsworth & Walker, of Portage, for appellant.

McFarlane & Loomis, of Mauston, for respondent.

ESCHWEILER, J.

The defendant contends that his demurrer to the complaint presents for determination whether, if attempting to state a cause for equitable relief,the complaint must be held bad because showing on its face there is adequate remedy at law; further, that a defendant is entitled to have distinctly ascertained by the ruling upon such a demurrer whether the action be one in equity or one at law. This, so that, if held to be the latter, the constitutional right to a trial by jury may be properly preserved, and, in case of a ruling that the cause be in equity, and such ruling is deemed error, the question may be determined on an appeal here from such ruling and before trial.

[1] We now hold that the complaint states sufficient facts upon which can be predicated an action in tort for deceit. In so holding, we disregard, as we may and must, the facts or elements therein contained, showing or tending to show, as it is claimed by defendant, the pleader's intention to bring him within the field of equitable remedies, and this, even though the latter position is one which the respondent in his brief and on argument here is somewhat loath to relinquish.

We must hold this complaint good, if we can discover from the facts alleged that plaintiff is entitled to some measure of judicial redress, whether legal or equitable, and whether in harmony with the prayer for relief or not, by the express direction of section 263.07, Stats. We are also so...