Tucker v. Lovejoy , 73 Wis. 66 ( 1888 )

Taylor, J.

The demurrer was sustained by the court below because it appears on the face of the complaint that the cause of action stated in the complaint accrued more than six years before the commencement of the action. It is claimed by the learned counsel for the respondent that it appears on the face of the complaint that the cause of action stated in the complaint accrued as early as the 1st day of December, 1873, and it also appears on the face of said complaint that the action was not commenced until after the 8th day of May, 1884, eleven years after the same accrued. We think that, considering the facts alleged in the complaint, the contention of the learned counsel for the respondent is sustained, and the demurrer was well taken. The legal conclusion deduced from the facts stated is that the plaintiff was entitled to pay for his services when they were fully performed, in the absence of any agreement fixing the day of payment at some other time, and no demand was necessary in order to maintain an action for the value of such services. Dill v. Wareham, 7 Met. 438, 448; Earle v. Bickford, 6 Allen, 549, 551; Sturgis v. Preston, 134 Mass. 372.

But it is alleged by the learned counsel that the last allegation above quoted, viz., “that said services were reasonably worth the sum of $4,000, which sum became due some time in September, 1884, but on what particular day in said month this plaintiff is unable to say,” is a sufficient allegation to rebut the legal conclusion which follows the previous allegations of fact. We think the contention of the counsel for the respondent, that this is simply an allegation of a conclusion of law, and not of fact; must be sustained. It is the statement of facts in a complaint which constitutes the cause of action, and when those statements fail to show a cause of action they cannot be helped out by alleging a conclusion of law. The complaint having stated facts which show that his demand was due in December, Í873, these facts cannot be neutralized simply by an allegation that his demand was not due until several years thereafter. Suppose the plaintiff’s action had been upon a promissory note which was alleged to have been made December 1, 1873, and became due by its terms on the 1st day of January, 1874, and the action had been commenced January 1, 1884, could the plaintiff have avoided a demurrer to the complaint that the statute of limitations had barred his claim, by inserting a general allegation that the money on the note became due on January 1, 1880? We think it very clear he could not. To avoid the statute he would have to allege facts showing that some other contract had been made which had postponed the payment of the nóte to some other time than that stated in the note itself.

Upon demurrer, the general allegation of a conclusion of law must be wholly disregarded. This is the rule as established by this court in the following cases, cited by the counsel for respondent: Babb v. Mackey, 10 Wis. 371, 376; Howell v. Howell, 15 Wis. 55, 61; Franklin v. Kirby, 25 Wis. 501; Teetshorn v. Hull, 30 Wis. 162, 167; Hazleton v. Union Bank, 32 Wis. 34, 43; Lutheran Evangelical Church v. Gristgau, 34 Wis. 328, 334; Butler v. Kirby, 53 Wis. 188, 192; Forcy v. Leonard, 63 Wis. 353, 360; Pratt v. Lincoln Co. 61 Wis. 62, 66; State v. Egerer, 55 Wis. 527, 529; Feiten v. Milwaukee, 47 Wis. 494, 497; Lawrence v. Janesville, 46 Wis. 364—371; Eaton v. Gillet, 17 Wis. 435; Baxter v. State, 17 Wis. 588, 589.

The demurrer was properly sustained.

By the Court.- — The order of the circuit court is affirmed, and the cause is remanded for further proceedings.