Hagenah v. Geffert

Cassodat, J. It is claimed that no mistake of fact is alleged in the complaint, but only a misunderstanding as to the meaning of the words employed. Had the question [641] arisen upon regular demurrer, we might possibly have reached that conclusion. Rut no such demurrer was interposed. The defendant answered upon the merits. The cause was regularly noticed for trial, and the plaintiffs appeared with the expectation of trying it. They were met by a demurrer ore tenus. It has long been settled in this court that, where the sufficiency of the complaint is thus raised for the first time, more latitude of presumption will be indulged to sustain it than where the objection is taken by regular demurrer. Teetshorn v. Hull, 30 Wis. 162; Hazleton v. Union Bank, 32 Wis. 34. Without further citing cases, it is sufficient to saj^ that this rule has since been frequently sanctioned by this court. By indulging in such liberal presumption in favor of the complaint, the court is inclined to hold that it alleges, in effect, that by mistake the bond was so written as to make the plaintiffs assume “ all the debts ” of the firm, instead of limiting such liability to such debts of the firm as had been incurred in the “hardware and agricultural implement business,” as was intended by the parties. Especially is this so in view of the liberal rule for the reformation of contracts on the ground of mistake, adopted by this court in Green Bay & M. Canal Co. v. Hewitt, 62 Wis. 329 et seq. The discussion of the question by Mr. Justice Oetou in that case is too recent and too exhaustive to be here renewed. See, also, Silbar v. Ryder, 63 Wis. 109. The case comes clearly within the ruling of that decision. It is true the allegations are vague and indefinite, and might have been made more certain on motion; but such defect cannot be reached on demurrer ore tenus. Not wishing to embarrass a trial upon the merits, we refrain from any further discussion. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.