Brossard v. Williams

BabdebN, J. 1. Tbe defendant insists tbe complaint is insufficient, because it fails to allege a demand upon defendant before tbe commencement of suit. It is alleged tbat “tbe defendant refuses, and bas ever refused, to account for or pay over” tbe indebtedness sued for. Defendant’s contention is completely answered by tbe case of Divan v. Loomis, 68 Wis. 150, 31 N. W. 760, in wbicb it is said: “An allegation of refusal implies a previous demand, and is equivalent to an allegation of a demand and a refusal.” 2. Tbe second point urged by defendant is tbat tbe plaintiff bas no legal capacity to sue, for tbe reason tbat be bas no power or authority as administrator to purchase tbe claim upon wbicb this action is based. Tbe general proposition is admitted tbat an administrator will not be permitted to speculate with tbe funds of bis decedent’s estate. But tbat proposition is not here for consideration. Tbe allegation is tbat tbe claim against defendant was sold and assigned to plaintiff for a valuable consideration. If tbe plaintiff bad a valid transfer of tbe claim as against bis assignor, the defendant bad no interest to inquire further. Chase v. Dodge, 111 Wis. 70, 86 N. W. 548; Sheridan v. New York, 68 N. Y. 30. So 91 far as the pleading discloses, the defendant bad no interest in the estate represented by plaintiff. A payment to plaintiff would be a complete shield against any further prosecution of the claim. If plaintiff was mismanaging the estate intrusted to his care, or speculating with its funds, he was responsible to the parties interested in the estate. The defendant had no interest in any controversy that might arise in this respect, so long as he was protected against any claim that could be made by plaintiff’s assignor. By the Court. — The order sustaining the demurrer is reversed, and the cause is remanded with directions to enter' an order overruling the demurrer, and for further proceedings according to law.