Brief Fact Summary. Plaintiffs hired Defendant, an attorney, to secure a franchise for them. Defendant billed Plaintiffs $1,250 for his services, which he took out of a deposit returned to Defendant for Plaintiffs. Plaintiffs sued to recover $1,000, alleging Defendant did not perform the services alleged and that Plaintiffs did not owe Defendant more than $250.
Synopsis of Rule of Law. A cause of action must be identified in a complaint as tort or contract and as sounding in either law or equity to create certainty of the plaintiff’s claim to the defendant and the court. If the complaint is not pled as specified, a demurrer by the defendant must be sustained.
Issue. Does a complaint have to allege facts sufficient to identify a particular cause of action in order to withstand a demurrer?
Held. Yes. The trial court’s overruling the demurrer is reversed. It is not clear whether the complaint alleges a breach of contract or an action for conversion. There is language suggesting both causes of action. A complaint cannot vaguely allege two different causes of action or an action in law and an action in equity. This is not fair to the defendant because the defendant does not have an opportunity to respond to the allegations until the actual evidence is introduced at trial. To hold that the language suggesting conversion is “surplusage,” and should be disregarded by the court would create uncertainty. There is a risk that the Defendant and the Court will be misled by the pleadings. In Supervisors of Kewanee County v. Decker, 30 Wis. 624, the court required that the cause of action be identified as tort or contract and as sounding in either law or equity in order for the demurrer to be overruled.
In an action for conversion, the complaint must allege ownership or possession in the plaintiff of the property at the time it is alleged to have been converted.View Full Point of Law