Divan v. Loomis

Cassodat, J. It is said that the complaint is insufficient because it fails to aver any request of Loomis to comply [152] with the terms of the alleged agreement. An allegation of refusal implies a previous demand, and is equivalent to an allegation of a demand and a refusal. Hammond v. Mason & H. O. Co. 92 U. S. 724; Bogie v. Bogie, 41 Wis. 220. This being so, the breach is sufficiently alleged. Such agreement to furnish Smith a home, and to take care of and assist him to live in a comfortable manner, was personal upon the part of Loomis, and could not be shifted onto Trickle, against the will and-consent of Smith. By the Court.— The order of the circuit court is affirmed.