Val-Lo-Will Farms, Inc. v. Irv Azoff & Associates, Inc., VAL-LO-WILL

• Decision Date: 02 March 1976
• Docket Number: VAL-LO-WILL,No. 631,631
• Citation: 71 Wis.2d 642,238 N.W.2d 738
• Court: Wisconsin Supreme Court
• Parties: FARMS, INC., a Foreign Corporation, Respondent, v. IRV AZOFF & ASSOCIATES, INC., a Foreign Corporation, and Belkin Productions, Inc., a Foreign Corporation, Appellants. (1974).

Page 738

238 N.W.2d 738

71 Wis.2d 642

VAL-LO-WILL FARMS, INC., a Foreign Corporation, Respondent, v. IRV AZOFF & ASSOCIATES, INC., a Foreign Corporation, and Belkin Productions, Inc., a Foreign Corporation, Appellants.

No. 631 (1974).

Supreme Court of Wisconsin.

Submitted Jan. 7, 1976.

Decided March 2, 1976.

Godfrey, Neshek, Worth & Howarth, S.C., Elkhorn, on brief, for appellants.

Richard P. Brugger, Lake Geneva, on brief, for respondent.

HEFFERNAN, Justice.

This is an appeal from an order overruling a demurrer to the complaint. Irv Azoff & Associates, Inc., and Belkin Productions, Inc., the defendants, demurred on the ground that the complaint of Val-Lo-Will failed to state a cause of action. We conclude that the complaint is sufficient and affirm the trial court.

The appeal arises out of a lease of dancehall property owned by Val-Lo-Will, a foreign corporation, to Irv Azoff and others. Val-Lo-Will alleges that the terms of the lease required compliance with local regulations and conditions and that one such condition on which the town granted a license was that William C. Grunow was to be 'involved' in the operation of the premises. It is further alleged that the lesses, contrary to the lease agreement and the town's conditions for operation, refused to allow Grunow to be 'involved' and to carry out the town's directives as required. It is alleged that, as a consequence of the lessees' breach of the town's condition, the dance hall was enjoined from further operation, to the damage of the lessor in respect to past and future profits.

These allegations unquestionably state a cause of action. The duty of this court on an appeal from an order on demurrer is clearly defined. It has recently been stated in De Bauche v. Knott (1975), 69 Wis.2d 119, 121, 230 N.W.2d 158, 160:

"On demurrer it is the duty of this court to accept the allegations of the complaint as true. A demurrer to a complaint admits all facts well pleaded, but denies that those facts have the legal consequences asserted by the plaintiff. When this court reviews a trial court's order on demurrer, it is obliged to construe the complaint liberally and to uphold it if it expressly or by reasonable inference states any cause of action. Sec. 263.07, Stats., sec. 263.27; Estate of Mayer (1965), 26 Wis.2d 671, 677, 133 N.W.2d 322."

See, also, Weiss v. Holman (1973), 58 Wis.2d 608, 614, 207 N.W.2d 660.

Much of the dispute on this appeal arises over a question irrelevant at this stage of the proceedings--is the complaint for tort or for breach of contract? The plaintiff contends that it has stated a cause of action in tort. The defendants contend, correctly we believe, that the cause of action is not one for tort but for breach of contract.

On demurrer, however, the question which must be answered by the court is whether any cause of action has been stated upon which relief can be granted. The theory of the plaintiff's case is not controlling. A plaintiff is bound by the facts he alleges, not by his theory of recovery.

'The point is not whether the complaint states the cause of action the plaintiff believes he has pleaded. The demurrer must fail if there is any cause of action made out.' Knott, supra, 69 Wis.2d p. 121, 230 N.W.2d p. 160.

A cause of action is defined 'as an aggregate of operative facts giving rise to a right or rights termed 'right' or 'rights of action' which will be enforced by the courts.' Clark, Code Pleading (hornbook series, 2d ed., 1947), page 127, sec. 19.

Clark, in general, takes the position that the term, cause of action, should be interpreted as referring to facts upon which one or more rights of action are based, rather than the rights themselves. Hence, a change in legal theory only should not be considered the statement of a new cause.

Clark states these general principles in still another way:

'. . . he (the complainant) should not be forced to fulfill any requirement of having and maintaining a single legal theory of his pleadings; he should be held only to the ideal of reasonably fair notice of the facts of his case.' Clark, supra, p. 261, sec. 43.

Nevertheless, the plaintiff, contrary to its own contention, alleges the breach of a contractual duty. The defendant lessees failed to comply with the promises of the lease to the damage of the plaintiff. This is a simple cause of...