Divan v. Loomis

Wisconsin Supreme Court

Divan v. Loomis

31 N.W. 760, 68 Wis. 150, 1887 Wisc. LEXIS 77

Wisconsin Supreme Court·Decided February 1, 1887·Published·Cited by 7 cases

Opinion

Cassodat, J.

It is said that the complaint is insufficient because it fails to aver any request of Loomis to comply [152]*152with the terms of the alleged agreement. An allegation of refusal implies a previous demand, and is equivalent to an allegation of a demand and a refusal. Hammond v. Mason & H. O. Co. 92 U. S. 724; Bogie v. Bogie, 41 Wis. 220. This being so, the breach is sufficiently alleged. Such agreement to furnish Smith a home, and to take care of and assist him to live in a comfortable manner, was personal upon the part of Loomis, and could not be shifted onto Trickle, against the will and-consent of Smith.

By the Court.— The order of the circuit court is affirmed.

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Cassodat, J.

It is said that the complaint is insufficient because it fails to aver any request of Loomis to comply [152]*152with the terms of the alleged agreement. An allegation of refusal implies a previous demand, and is equivalent to an allegation of a demand and a refusal. Hammond v. Mason & H. O. Co. 92 U. S. 724; Bogie v. Bogie, 41 Wis. 220. This being so, the breach is sufficiently alleged. Such agreement to furnish Smith a home, and to take care of and assist him to live in a comfortable manner, was personal upon the part of Loomis, and could not be shifted onto Trickle, against the will and-consent of Smith.

By the Court.— The order of the circuit court is affirmed.

Divan v. Loomis, 31 N.W. 760, 68 Wis. 150, 1887 Wisc. LEXIS 77 (Wis. 1887).

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