Welsh v. Markham , 191 Wis. 310 ( 1926 )

Crownhart, J.

In Pietsch v. Wegwart, 178 Wis. 498, 190 N. W. 616, this court has fully considered the statutes of limitation as applied to actions of this kind. It is unnecessary to repeat what was there said or to do more than say that the law as there laid down has our full approval. The plaintiff attempted to state an equitable cause of action for rescission of contract and recovery of damages. The cause of action is based on fraud, and it is a cause of action over which both courts of law and courts of equity have concurrent jurisdiction. It therefore falls within the six-year statute of limitation. However, if the complaint states facts which show that the plaintiff has a cause of action at law on the contract, the court will disregard the prayer for equitable relief and give the plaintiff her appropriate remedy in law.

“It is unnecessary to cite authorities for the prevailing rule that if a complaint, giving it every reasonable inference, shows that the plaintiffs are entitled to some relief which the court has the power to grant, it is not subject to a general demurrer.” Lipman v. Manger, 185 Wis. 63, 71, 200 N. W. 663.

The subsidiary contract to pay taxes, insurance premiums, collect the interest, and foreclose the mortgage when necessary, was not breached until 1921. Upon the breach of that contract the plaintiff had a cause of action against the defendant corporation for damages, and the six-year statute had not run on that cause of action when this action was begun. But the defendant answers this contention by saying that the plaintiff rescinded the principal contract, which rescission carried with it the rescission of the subsidiary contract, and that she cannot now maintain an action upon this subsidiary contract.-

The respondent claims that there is alleged a fiduciary relation between the parties which prevented the statute of limitation from running on the equitable cause of action. We are of the opinion that the facts stated are not sufficient to establish a fiduciary relation upon which the respondent can rely.

o We think the facts as alleged in the complaint amount to no more than an offer to rescind and a demand for return of the purchase price of the note and mortgage. The offer was not accepted and the demand was refused. The appellants cannot complain on the ground that they refused to comply with the offer and demand of the respondent. Ludington v. Patton, 111 Wis. 208, 245, 86 N. W. 571.

By the Court. — The order of the circuit court is affirmed.