Weinstein v. McCabe

• Decision Date: 03 June 1969
• Docket Number: No. 277,277
• Citation: 43 Wis.2d 76,168 N.W.2d 210
• Parties: Maurice WEINSTEIN, Respondent, v. Morgan L. McCABE et al., Appellants.
• Court: Wisconsin Supreme Court

Page 210

168 N.W.2d 210

43 Wis.2d 76

Maurice WEINSTEIN, Respondent, v. Morgan L. McCABE et al., Appellants.

No. 277.

Supreme Court of Wisconsin.

June 3, 1969.

The order appealed from overruled the defendants' demurrer to the complaint.

The plaintiff, Maurice Weinstein, a licensed attorney and certified public accountant, brought this action to recover for legal and accounting services rendered to the defendants, plus disbursements, which services were to be paid for at an agreed rate.

The plaintiff further alleges that the services were rendered at the request of all of the defendants and that a part-payment has been made, and he makes demand for the balance.

All of the defendants by their attorney demurred to the complaint upon the grounds:

(1) That several causes of action have been improperly united.

(2) That the complaint does not state facts sufficient to constitute a cause of action.

The trial court overruled the demurrer with leave to file an answer in 15 days.

The defendants appeal.

Sidney Spector, Milwaukee, for appellants.

Thomas C. Wilkoski, Milwaukee, for respondent.

BEILFUSS, Justice.

The two pertinent allegations of the complaint are as follows:

'2. The defendants, Morgan L. McCabe, and Jean McCabe, (also known as Jean Kaufman and Jean Starr), are husband and wife, and are engaged in the business f operating and managing the Westgate Hotel, located at 1722 W. Wells Street, in the City of Milwaukee, County of Milwaukee, State of Wisconsin, as well as other properties in the City of Milwaukee, and both defendants reside in Milwaukee, Wisconsin. Westgate Motor Hotel, Inc., is a Wisconsin corporation, with offices at 1722 W. Wells Street, and is the owner and operates the hotel at said address.

'3. That at the special instance and request of the defendants the plaintiff rendered legal and accounting services, which the defendants promised and agreed to pay plaintiff at the rate of $35 per hour for legal services, and $12.50 per hour for accounting services, and to reimburse said plaintiff for all necessary disbursements incurred on their half.'

The complaint then alleges the dates and hours of services performed and the charge therefor; that part of the total amount was paid and that demand has been made for the balance due.

We conclude the complaint does state a cause of action for services rendered at the 'special instance and request of the defendants,' and that but one cause of action is stated.

The appellants' principal argument is that the defendants consist of two individuals and one corporate defendant; that the corporation can act only through its authorized officers and agents; and that there is no allegation as to such corporate authority. The McCabes are identified as the managers of the corporation and the allegation is sufficient to stand the challenge by demurrer.

'It is ordinarily sufficient to allege in general terms the acts or contracts of a corporation by or through its officers or agents, or the authority of such officers or agents, especially where it is further alleged that the corporation ratified the acts of its representative. It is commonly held that the acts constituting the cause of action should be alleged as the acts of the corporation, and that it is not necessary to aver that they were done by and through the authorized agents of the corporation, particularly where the acts are ultra vires; that an allegation that an act was done by the corporation is a sufficient allegation of authority on the part of the person who performed the act in question; and that it is not necessary to allege the name of the officer or agent who committed an alleged wrongful act, or with whom the contract in suit was made, at least where such information is more available to the adverse party than to the pleader. * * *' 19 C.J.S. Corporations § 1334, pp. 1033, 1034.

The contention that the contract is void and unenforceable as to the corporation because it is a promise, not in writing, 'to answer for the debt, default or miscarriage of another person' is of no avail to the appellants under the allegations of the complaint. ¹ The complaint does not allege the corporation agreed to pay for the McCabes--it alleges, in substance, that all three defendants, including the corporation, requested the services be performed.

The following citation reveals the liberality that is afforded pleadings when challenged by demurrer:

'On the subject of sufficiency it matters not what kind of a cause of action, by name, within the broad meaning of 'a civil action' the pleader attempted to state, or whether he attempted to state more than one cause of action. It was not essential that he should do more than to state concisely the facts constituting his claim for redress; that is the...