Whereatt v. Ellis
| Decision Date | 20 November 1883 |
| Citation | 17 N.W. 301,58 Wis. 625 |
| Parties | WHEREATT v. ELLIS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Eau Claire county.
L. M. Vilas, for respondent, George W. Whereatt.
Alexander Meggett, for appellant, Joseph F. Ellis.
Whether there is an improper joinder of causes of action in the complaint depends entirely on the question whether the first cause of action is one in tort or on contract. If it is of the latter character it is conceded there is no misjoinder. The statement of the first cause of action, in substance, is that some time in the fall of 1881 the defendant was possessed of, and had the control and management of, a number of farms, which he desired to let to tenants to farm on shares the next year; that he then made an oral agreement with the plaintiff if the latter would find tenants, and attend to the letting of such farms, would overlook and superintend the working and management of them, and take charge of the business relating thereto until the crops of 1882 were gathered and threshed, he would pay plaintiff one-tenth part of the crops raised as compensation for his services. It is further alleged that the plaintiff entered upon this employment, procured tenants, and leased the farms to them, and performed the services which he had undertaken to render, until the defendant discharged him, in the month of July, 1882, without just cause, and against his consent. It is also averred that the plaintiff has at all times been willing to perform the agreement on his part, and has offered to do so, but that the defendant has ever refused to let him perform it; that since the plaintiff's discharge the defendant has taken the crops raised and threshed on the several farms, including the plaintiff's share or portion, “and has converted the same to his own use.” It is alleged that the defendant has refused to deliver to the plaintiff his share, although requested so to do. It then states the value of the share which the plaintiff was to receive under the agreement, and alleges that he has sustained damages equal to such value by reason of the breach of the contract.
It seems to us that this states a cause of action on contract. Probably, if the allegation that the defendant had “converted” the crops to his use had been omitted, there would be no question as to the nature of the action set forth. But these words cannot control the facts stated, which show that the action is for a breach of contract....
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...22 N. W. Rep. 416;Assurance Co. v. Towle, 65 Wis. 247, 26 N. W. Rep. 104;Potter v. Van Norman, 73 Wis. 339, 41 N. W. Rep. 524;Whereatt v. Ellis, 58 Wis. 625, 17 N. W. Rep. 301. In some of these cases, the actions were held to be on the contract, although the complaint in each contained aver......
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...the two alleged causes of action are properly united. This sufficiently appears from numerous adjudications of this court. Whereatt v. Ellis, 58 Wis. 625, 17 N. W. 301;Gilbert v. Loberg, 83 Wis. 189, 53 N. W. 500;Van Oss v. Synon, 85 Wis. 661, 56 N. W. 190;Gilbert v. Loberg, 86 Wis. 661, 57......
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...indebtedness sued on is due upon contract, express or implied, or upon judgment. See, also, Assurance Co. v. Towle, supra. In Whereatt v. Ellis, 58 Wis. 625, 17 N. W. Rep. 301, the complaint alleged that the defendant had converted a portion of the crops to his own use but it was held that ......
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