Laney v. Pemberton

Wisconsin Supreme Court

Laney v. Pemberton

166 N.W. 13, 166 Wis. 462, 1918 Wisc. LEXIS 17

DecidedJanuary 5, 1918

StatusPublished

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Bluebook

Laney v. Pemberton, 166 N.W. 13, 166 Wis. 462, 1918 Wisc. LEXIS 17 (Wis. 1918).

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Opinion

Wiwslow, C. J.

The appellant claims that the complaint clearly charges that the defendant P ember bon concerted with the other defendants in the breaking of the contract, and hence is liable with them in an action for the breach. Martens v. Reilly, 109 Wis. 464, 84 N. W. 840.

We fail to find any allegation in the complaint charging this fact either directly or by necessary implication; in fact the absence of any such allegation is noticeable. A number of facts are alleged which might perhaps be admissible in evidence as tending to prove that Pemberton had some connection with the breach, but they do not amount to an allegation of active assistance or participation in the breach itself.

It is not stated when the deed to the Belmont Company, dated in September, 1916, was executed. The fact that Pemberton had knowledge of the deed and participated in the circumstances under which it came into the hands of the Belmont Company, standing alone proves nothing. There is no necessary connection between these facts and the breach of contract. The deed may have been given as security for money borrowed and the loan may have been paid and the deed wrongfully retained by the Belmont Company; or the fact may be that there had been no delivery with intent to pass title, but that the Belmont Company had been given physical possession of the deed for some other purpose. This latter situation seems to be suggested by the allegation that Pemberton advised plaintiff that the deed was never legally-delivered to the Belmont Company.

[465]*465The later allegations that the defendants refused to take steps or join in taking steps to set aside the Belmont deed and notified the plaintiff -that they would not carry out the contract, plainly refer to the defendants who own the'property. The final allegation, that Pemberton denied that he had authority to make the contract, clearly does not amount to an allegation that he assisted in the breach which had occurred some time before.

If the plaintiffs have proof that Pemberton concerted with the other defendants in breaching the contract, it is very easy to charge the fact. A man ought hardly to be compelled to defend an expensive lawsuit when no definite claim is made against him.

By the Court. — Order affirmed.

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Wiwslow, C. J.

The appellant claims that the complaint clearly charges that the defendant P ember bon concerted with the other defendants in the breaking of the contract, and hence is liable with them in an action for the breach. Martens v. Reilly, 109 Wis. 464, 84 N. W. 840.

We fail to find any allegation in the complaint charging this fact either directly or by necessary implication; in fact the absence of any such allegation is noticeable. A number of facts are alleged which might perhaps be admissible in evidence as tending to prove that Pemberton had some connection with the breach, but they do not amount to an allegation of active assistance or participation in the breach itself.

It is not stated when the deed to the Belmont Company, dated in September, 1916, was executed. The fact that Pemberton had knowledge of the deed and participated in the circumstances under which it came into the hands of the Belmont Company, standing alone proves nothing. There is no necessary connection between these facts and the breach of contract. The deed may have been given as security for money borrowed and the loan may have been paid and the deed wrongfully retained by the Belmont Company; or the fact may be that there had been no delivery with intent to pass title, but that the Belmont Company had been given physical possession of the deed for some other purpose. This latter situation seems to be suggested by the allegation that Pemberton advised plaintiff that the deed was never legally-delivered to the Belmont Company.

[465]*465The later allegations that the defendants refused to take steps or join in taking steps to set aside the Belmont deed and notified the plaintiff -that they would not carry out the contract, plainly refer to the defendants who own the'property. The final allegation, that Pemberton denied that he had authority to make the contract, clearly does not amount to an allegation that he assisted in the breach which had occurred some time before.

If the plaintiffs have proof that Pemberton concerted with the other defendants in breaching the contract, it is very easy to charge the fact. A man ought hardly to be compelled to defend an expensive lawsuit when no definite claim is made against him.

By the Court. — Order affirmed.

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166 N.W. 13, 166 Wis. 462, 1918 Wisc. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/laney-v-pemberton-wis-1918.

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