Starkey v. Murphy

176 N.W. 72, 170 Wis. 614, 1920 Wisc. LEXIS 42

Opinion

Owen, J.

As a general rule, proper pleading requires that the plea of usury specifically set forth the terms and nature of the usurious agreement and transaction, and all the facts and circumstances in relation thereto. 22 Ency. PI. & Pr. 431 and cases there cited; Hull v. Augustine, 23 Wis. 383. However, this is an action for an accounting, and the complaint alleges that plaintiff is not in possession of all the facts necessary to set up the plea of usury with thaf definiteness and certainty ordinarily required. That is the reason he desires an accounting. If he were in possession of the facts which would enable him to comply with the rule, an accounting would be unnecessary. He alleges, however, that these facts are within the knowledge of the defendant, and brings this action so that an account may be stated between them. It would seem that he is entitled to an accounting, and that as the complaint is as definite and certain as he can make it, under the circumstances, the demurrer should be overruled.

By the Court. — The order appealed from is affirmed.