Gilbert v. Loberg

53 N.W. 500, 83 Wis. 189, 1892 Wisc. LEXIS 221

• Court: Wisconsin Supreme Court
• Decided: October 25, 1892
• Status: Published

Opinion

Cassoday, J.

The statutes applicable to, the case at bar are to the effect that “ the plaintiff may unite in the same complaint several causes of action, whether they be such as were formerly denominated legal or equitable, or both, where they arise out of . . . (3) injuries, with or without force, to person or property, or either.” Sec. 2647, R. S. This section also includes six other classes of actions, and expressly provides that the several “ causes of actions so united must all belong to one of these classes, and must affect all the parties to the action, and not require different places of trial, and must be stated separately.” Each of the two causes of action • here alleged affects all the parties to the action, and is stated separately, and they 'do not require, different places of trial.

The only remaining question is whether the two causes of action thus alleged both “ belong to one” of the seven different classes of actions mentioned in the section of the statute cited. The prayer of the complaint is simply for a money judgment for the aggregate damages sustained and costs. The damages claimed for waste to the real estate are certainly for an injury to property with force.

The question, then, is whether the claim for damages for deceit in the sale of the horse is for an injury to property without force, for, if it is, then it belongs to the same class of actions, and the two .are properly united. Under similar statutes, it has been frequently held that the words “-injuries, with or without force, to . . . property,” include all injuries which a person sustains in his rights of property. Cleveland v. Barrows, 59 Barb. 374; De Silver v. Holden, 50 N. Y. Super. Ct. 240, 6 Civil Proc. R. 124; Clark's Adm'x v. H. & St. J. R. Co. 36 Mo. 214; More v. Massini, 32 Cal. 590. This being so, it necessarily includes a cause of action for fraud or deceit, whereby the plaintiff has suffered injury or damage by reason of having parted with his property or put himself under obligations to do so. Ibid. See, also, Pom. Rem. & Rem. Rights, § 495; Maxw. Code Pl. 351. Thus, in Cleveland v. Barrows, 59 Barb. 374, it is said: “Fraud is a wrong, and if-a party thereby obtains from another property, it is an injury to the property of such other, in the same sense, precisely, as though the wrongdoer had taken the property tortiously and converted it. The law affords the injured party the same remedy in either case. In both cases it is property wrongfully obtained. . . . Fraud belongs to the class of injuries denominated ‘ injuries .to property.’” It may be added that unless fraud'and deceit be regarded as injuries to property,— that is to say, to'the rights of property,— they do not come within any of the seven classes of cases mentioned in the statute cited.

By the Court.— The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.