Lyman v. Babcock

36 Wis. 314

• Court: Wisconsin Supreme Court
• Decided: June 15, 1874
• Status: Published

Opinion

LYON, J.

We have not been favored with any argument or brief on behalf of the defendant, and are not advised of the grounds upon which it is claimed (if it be so claimed), that the demurrer was properly sustained. For that reason we shall abstain from an extended discussion of the case.

The portion of the complaint demurred to avers that the plaintiff indorsed $10,000 on the notes and mortgage which he held' against the defendant, in consideration, in part at least, of the defendant’s agreement to pay him that sum in case he (the defendant) should fail to procure for the plaintiff the right of selection mentioned in the agreement (which right is alleged to be worth $10,000); and that not only did he fail to procure for the plaintiff such right of selection, but, oh the contrary, by refusing to convey to Smith, he prevented the plaintiff from obtaining a conveyance of any of the land. Here we find apt and proper averments to the effect that, upon sufficient consideration, the defendant agreed, in a certain contingency, to pay the plaintiff the sum of money for which the action was brought, and that such contingency has happened. It does not occur to us that' there is wanting any averment essential to the statement of a good cause of action.

By the Court — The order sustaining the demurrer is reversed, and the cause remanded for further proceedings according to law.