Uecke v. Held

129 N.W. 599, 144 Wis. 416, 1911 Wisc. LEXIS 287

• Court: Wisconsin Supreme Court
• Decided: January 10, 1911
• Status: Published

Opinion

Siebeckee, J.

Tbe plaintiff claims that tbe court erred in sustaining tbe demurrer because tbe complaint alleges sufficient facts to constitute a cause of action for relief by way of declaring and enforcing a vendor’s lien, and because no other cause of action is alleged. Tbe trial court field that tbe averments constituted a cause of action at law in addition to such an action in equity. Tbe facts alleged are material and pertinent to a statement of a cause of action to declare and enforce a vendor’s lien and must be so viewed. It is clear from tbe allegations of tbe complaint that tbe pleader’s object was to state tbe facts for relief so as to establish and enforce a vendor’s lien. Tbe trial court evidently viewed tbe facts alleged as stating a cause of action on tbe note, because tbe plaintiff asks that judgment be awarded for tbe unpaid purchase price against Jacob Held, the maker of tbe note. Tbe complaint, however, states no more than tbe material facts showing tbe primary right of a vendor to declare and enforce a vendor’s lien. It is essential to such a cause of action that tbe court ascertain tbe amount of tbe purchase price remaining unpaid and award judgment against tbe debtor therefor. Anri tbe demand for judgment against tbe debtor for such amount does not give the complaint a double aspect of stating two causes of action, for a recovery at law on the note and to enforce a vendor’s lien. If tbe complaint be tested in tbe light of tbe subject of controversy presented, it is plain that but one primary right is sought to be enforced. The allegations are clearly sufficient to constitute a cause of action to enforce plaintiff’s right to a vendor’s lien, and, when so interpreted, all the facts alleged and th© relief prayed harmonize with such a purpose and object.

The question of fact as to whether or not the taking of the note from the vendee was accepted as payment of the balance of the purchase money is sufficiently negatived by the allegations of the complaint, which refute respondents’ claim that the facts alleged show that it was accepted in payment of the balance of the purchase price.

We consider that the complaint states a good cause of action to declare and enforce a vendor’s lien and that there is no misjoinder of causes of action.

By the Gourt. — The order appealed from is reversed, and the cause remanded to the circuit court with directions to enter an order overruling the demurrer and granting the defendants the privilege of answering upon the usual terms and conditions.