McCartney v. Boyd

Vinje, J. Tbe objection to tbe complaint on tbe ground tbat it fails to state facts constituting fraud on tbe part of tbe defendant Boyd is not tenable. Tbe allegations tbat be concealed partnership property from tbe plaintiff and from tbe guardian of ber minor son; tbat be falsely claimed tbe estate of ber deceased busband owed tbe partnership $500; tbat by means of a false and incomplete list of partnership property be procured an undervaluation thereof by tbe appraisers ; and tbat Grieves was a purchaser when in fact be was not, are allegations of facts showing fraud and are sufficient. Laun v. Kipp, 155 Wis. 347, 145 N. W. 183. It is urged tbat tbe complaint shows such laches upon its face tbat tbe court ought not to give tbe desired relief. Tbe action was begun October 15, 1913. On August 3, 1912, plaintiff was appointed executrix. Tbe complaint alleges tbat upon learning of tbe fraud of tbe defendant Boyd she promptly notified him tbat she would not abide by tbe conveyances either individually or as executrix. Erom this it follows tbat she did not discover the fraud until after or about tbe time she was appointed executrix. A delay of a year in bringing an action of this kind is not per se laches,, especially in the absence of any facts showing tbat tbe defendant bad suffered thereby. Two causes of action were not improperly joined. Tbe complaint seeks an accounting between plaintiff as executrix of ber husband’s estate and tbe defendant Boyd. Tbat is tbe [149] main cause of action. Tbe fact tbat, in order to have sucb accounting and to enable tbe court to award to eacb wbat be is justly entitled to, it becomes necessary to cancel agreements, made by plaintiff as an individual, is merely giving a remedy ancillary to tbe main cause of action. Where there is but. one primary right sought to be enforced there is only one-cause of action though there may be many ancillary remedies, asked and awarded. Simon v. Weaver, 143 Wis. 330, 127 N. W. 950, and cases cited; Carthew v. Platteville, 157 Wis. 322, 147 N. W. 375. The demurrer was properly overruled. By the Court. — Order affirmed.