Bannen v. Kindling

Maeshall, J. The first proposition advanced by appellants’ counsel, is that the complaint does not show respondent to have performed his part of the agreement respecting Haekett. It is a sufficient answer thereto that the agreement contemplated association of Haekett with respondent in the management of a corporation organized as stipulated between the parties, appellant Kmdlvng controlling one half the stock and respondent the other half for himself and Haekett, and that, according to the pleading, appellants wrongfully prevented the creation of such condition. The second proposition is that the complaint does not set forth, with sufficient certainty and particularity, the alleged [617] agreement to constitute a contract at law, warranting a decree of specific performance in equity. We are unable to discover any indefiniteness of statement. Tlie agreement seems to be plain. It is suggested that the complaint is silent as to the amount of money necessary to carry on the business and the amount of stock that should be sold and the price per share. The two first suggestions are matters for proof. The agreement, itself, is definite enough. Just what may be required to execute it, in the respects mentioned, is susceptible of being made certain by proof. The theory suggested does not appear to be of consequence. Necessarily the stock should be sold at par, so far as anything appears in the complaint, and if not, that is a matter of proof. Many other suggestions are made by counsel as to the agreement being uncertain. It does not seem profitable to treat them in detail. All, in any event, can be made certain by proof. Moreover, they are quite as certain as such details could well be. Further, all of counsel’s strictures of this character are upon the theory that the complaint must stand or fall on a test of its sufficiency for specific performance. That is ■wrong. If the facts stated, expressly and inferentially, upon any reasonable view, entitle respondent to any judicial relief in equity, against all or any of the defendants, all having joined in the demurrer, though it be not for the relief specifically prayed for, or if the cause of action be not the one the pleader supposed he had and intended to state, and regardless of mere indefiniteness of statement, it is sufficient on. the challenge for insufficiency. Morse v. Gilman, 16 Wis. 504; Manning v. School Dist. 124 Wis. 84, 102 N. W. 356; Emerson v. Nash, 124 Wis. 369, 102 N. W. 921; Bieri v. Fonger, 139 Wis. 150, 120 N. W. 862. If this plain and valuable rule of the Code were alwaysi kept in mind by members of the profession much useless expenditure of time of courts and counsel, to the detriment of public and private interest, would be avoided. [618] .The point that plaintiff has an adequate remedy at law is clearly untenable. Respondent bas a legal right to have the partnership agreement carried out, or have it wound up. Having no legal remedy to enforce that right, manifestly, as has often been said, equity will extend such remedy as is within its competency to afford. The last proposition is that the complaint shows that plaintiff rescinded the agreement for the formation of a corporation, which is the foundation of his cause of action, and, as-he elected to rescind, he cannot proceed for specific performance. .This last proposition seems to have sprung from a variety of misconceptions: (a) Plaintiff attempted to state a cause of action for specific performance of the agreement to form a corporation, and to participate therein in equal proportions, and that no other cause of action is, therefore, available on the pleading. Plaintiff evidently did not attempt to state any particular cause of action by name. He intended to state, and seems to have succeeded well in stating, a history, in detail, of the making of a contract with appellant Kindling, the acts done under it by both parties, the breach of it by Kindling, and participation in his wrongdoing of others who thereby became connected with the subject of the action, intending to state plainly all facts and praying, specifically, for such relief as was thought proper, and, generally, for other relief, leaving it to the court upon the case as ultimately established by evidence, to award the proper relief. That was right. Plaintiff’s cause of action is-not, necessarily, for specific performance, as we have indicated. It is for any relief within the field covered by the pleading, which may be established by the evidence, (b) Counsel’s proposition supposes a first agreement for a partnership and a second one for a corporation. There was but one agreement. One of the material parts thereof was to form the corporation to take over and continue the partnership business under a corporate [619] name, (e) We fail to find any evidence of rescission of the partnership feature of the agreement. Respondent seems hi have insisted upon having that feature carried out or upon preserving his interest in the business as a partnership affair. What has been said sufficiently covers the case. The pleading seems to have the merit of being a plain and complete detail statement of transactions of making a business agreement and acts under and breaches of it. That it states grounds for such relief as will remedy the wrongs complained of, hardly admits of serious discussion. By the Court. — Order affirmed.