prom

Exhibit A,' and made a part of this complaint; (2) that the defendant ised to pay the plaintiff and the said McArthur what the said services were reasonably worth; that this plaintiff was to receive one-half of said amount, and the said McArthur one-half thereof; (3) that said services were reasonably worth the sum of four thousand dollars, which sum became due some time in the month of September, 1884, but on what particular day in said month this plaintiff is unable to state." The remainder of the complaint consists of allegations as to the assignment of the interest of Eric McArthur in the alleged claim to the plaintiff, and of notice of such assignment, given to the defendant before the commencement of this action, and prayer for judgment. The defendant demurred upon two grounds: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) that the action was not commenced within the time limited by law, and the said defendant refers to subdivision 3 of section 4222, and section 4227, Rev. St., which he claims limit the plaintiff's right to sue. right to sue. The demurrer was sustained by the circuit court, and from the order sustaining the same, the plaintiff appeals to this court.

The demurrer was sustained by the court below because it appears on the face of the complaint that the cause of action stated in the complaint accrued more than six years before the commencement of the action. It is claimed by the learned counsel for the respondent that it appears on the face of the complaint that the cause of action stated in the complaint accrued as early as the 1st day of December, 1873, and it also appears on the face of said complaint that the action was not commenced until after the 8th day of May, 1884,-11 years after the same accrued. We think that, considering the facts alleged in the complaint, the contention of the learned counsel for the respondent is sustained, and the demurrer was well taken. The legal conclusion deduced from the facts stated is that the plaintiff was entitled to pay for his services when they were fully performed, in the absence of any agreement fixing the day of payment at some other time, and no demand was necessary in order to maintain an action for the value of such services. Dill v. Wareham, 7 Metc. 438-448; Earle v. Bickford, 6 Allen, 549-551; Sturgis v. Preston, 134 Mass. 372. But it is alleged by the learned counsel that the last allegation above quoted, viz., "that said services were reasonably worth the sum of $4,000, which sum became due some time in September, 1884, but on what particular day in said month this plaintiff is unable to say," is a sufficient allegation to rebut the legal conclusion which follows the previous allegations of fact. We think the contention of the counsel for the respondent, that this is simply an allegation of a conclusion of law, and not of fact, must be sustained. It is the statement of facts in a complaint which constitutes the cause of action, and, when those statements fail to show a cause of action, they cannot be helped out by alleging a conclusion of law. The complaint having stated facts which show that his demand was due in December, 1873, these facts cannot be neutralized simply by an ailegation that his demand was not due until several years thereafter. Suppose the plaintiff's action had been upon a promissory note which was alleged to have been made December 1, 1873, and became due by its terms on the 1st day of January, 1874, and the action had been commenced January 1, 1884, could the plaintiff have avoided a demurrer to the complaint that the statute of limitations had barred his claim, by inserting a general allegation that the money on the note became due on January 1, 1880? We think it very clear he could not. To avoid the statute he would have to allege facts showing that some other contract had been made which had postponed the payment of the note to some other time than that stated in the note itself. Upon demurrer, the general allegation of a conclusion of law must be wholly disregarded. This is the rule as established by this court in the following cases, cited by the counsel for respondBabb v. Mackey, 10 Wis. 371-376; Howell v. Howell, 15 Wis. 55-61;

Supervisors v. Kirby, 25 Wis. 501; Teetshorn v. Hull, 30 Wis. 162-167; Hazleton v. Bank, 32 Wis. 34-43; Lutheran Church v. Gristgau, 34 Wis. 328334; Butler v. Kirby, 53 Wis. 188-192, 10 N. W. Rep. 373; Forcy v. Leonard, 63 Wis. 353-360, 24 N. W. Rep. 78; Pratt v. Lincoln Co., 61 Wis. 6266, 20 N. W. Rep. 726; State v. Egerer, 55 Wis. 527-529, 13 N. W. Rep. 461; Feiten v. Milwaukee, 47 Wis. 494-497, 2 N. W. Rep. 1148; Lawrence v. Janesville, 46 Wis. 364-371; Eaton v. Gillet, 17 Wis. 435; Baxter v. State, Id. 588, 589. The demurrer was properly sustained. The order of the circuit court is affirmed, and the cause is remanded for further proceedings.

MIDDLETON et al. v. JERDEE et al.

(Supreme Court of Wisconsin. December 4, 1888.)

1. DECEIT-FALSE REPRESENTATIONS-INSTRUCTIONS.

In an action for false representations, an instruction that if defendant made positive statements, without knowing them to be true, on which plaintiffs relied, they are entitled to recover, is not prejudicial where the court subsequently instructs that the representations must have been made with intent to deceive, as it also fairly 'implies the necessity of such intent.1

2. APPEAL-REVERSAL-HARMLESS ERROR-NOMINAL DAMAGES.

Where a substantial recovery of damages is had on one cause of action, and a nominal recovery on another cause of action in the same case, the judgment will not be reversed for error in the latter recovery, the question of costs not being dependent thereon.

Appeal from circuit court, Rock county.

Action by A. G. Middleton and H. C. Middleton against Mons. P. Jerdee and Ole P. Jerdee, for fraudulent representations inducing a lease of land from defendants by plaintiffs. Judgment for plaintiffs, and defendants appeal.

Rufus B. Smith, (Lamb & Jones, of counsel,) for appellants. Sanborn and John M. Olin, for respondents.

Pinney &

TAYLOR, J. This action was brought by the respondents to recover damages of the appellants for alleged false and fraudulent representations made by the appellant Mons. P. Jerdee, who acted as agent of Ole P. Jerdee, in leasing a farm to the respondents belonging to said Ole P. Jerdee. The evidence shows that the lease was made by the respondents in January, at a time when the farm was covered with a foot and more of snow; that the plaintiffs had no knowledge of the real character of the farm previous to the time of making the lease; and that, although they went upon the farm on the day the lease was made with Mons. P. Jerdee, the whole surface thereof was so deeply covered with snow that they could not tell how much was plowland, nor could they tell anything about the character of the marsh land or plow-land; and they allege that they depended entirely upon the representation made by Mons. P. Jerdee as to the quantity and character of the plowland, as well as upon the character and quality of the marsh land. On the trial the plaintiffs gave evidence which tended to show that the quantity and quality of the plow-lands, as well as the quality of the marsh lands, were materially different from what they were represented to be by the defendant Mons. P. Jerdee; and also showing that the real rental value of the farm was much less than the rent they had agreed to pay by their lease, and which they were in fact compelled to pay. They also show that they went upon the farm while the snow was still on the ground, and before they could determine that the character of the farm had been misrepresented to them, and that, when they discovered its real character, it was too late for them to abandon it, and take another farm for the season. On the trial the plaintiffs recovered a judg

'See the note, Davis v. Nuzum, (Wis.) ante, 497, cited in opinion.

ment against the defendants. The only errors relied upon by the appellants on this appeal are such as relate to the instructions given to the jury by the circuit judge. The appellants duly excepted to the following instructions given to the jury, viz.: "If you find that the defendant Mons. P. Jerdee, in making the contract for the lease, made positive statements as to the character of the farm, the number of acres of plow-land, or the character of the marsh, or the number of acres of good marsh, and made such statements without knowing them to be true, and were relied upon by the plaintiffs, then the plaintiffs are entitled to recover."

The appellants also excepted to certain instructions of the court as to the validity of what was spoken of on the trial as the chattel-mortgage clause in the lease, under which the defendants had seized certain property of the plaintiffs, and threatened to sell the same for the payment of the rent reserved in the lease. The circuit court held that the tenants could revoke this clause at their pleasure, and that a seizure by the landlord of the tenant's property under this clause, after the tenants had notified him that they revoked it, was a trespass. We do not deem it necessary to pass upon the correctness of the ruling of the learned circuit judge upon this question in this case; as it appears that the plaintiffs recovered but nominal damages-six cents -for the alleged seizure of the tenants' goods after such alleged revocation. If the respondents are entitled to hold their judgment for the substantial damages awarded them by the jury resulting from the alleged false and fraudulent representations made by the defendants in regard to the character of the land leased by the plaintiffs from the defendants, then such judgment will not be reversed, because the judgment may have included in it the six cents nominal damages awarded them for the seizure of their property by the defendants, even though such seizure may have been lawful. The rule de minimis curat lex applies, as the question of costs does not depend upon the recovery of said six cents damages.

The criticism made by the learned counsel for the appellants upon the instruction above quoted, and to which exception was taken, is that under it the jury might find in favor of the plaintiffs, although they should be of the opinion that no fraud had been committed or intended by the defendants, or either of them, in making such representations. It is insisted that no allegations are made in the complaint upon which a recovery can be had upon proof of such facts; and, if such allegations had been made in the complaint, that it would not have constituted a cause of action, for the reason that, all the negotiations for making the lease having terminated in the written lease, no mere verbal statements made by the parties during such negotiations can be relied upon as constituting a cause of action upon contract, as the law holds that they are all merged in the written contract or waived by the parties; and that, in order to recover in this action, the plaintiffs must show that the defendants made some fraudulent representations for the purpose of inducing the plaintiffs to enter into the lease afterwards executed by them. Upon this question there is no dispute between the learned counsel for the respective parties. Whether the learned counsel for the appellants have stated the law correctly in their criticism and contention, as above stated, it is wholly unnecessary to decide in this case. The plaintiffs have in their complaint clearly set forth the representations alleged to have been made by the defendants, and they allege that they were made by the defendant Mons. P. Jerdee knowing the same to be false, and with the intent to induce the plaintiffs to enter into the lease, and that they relied upon the truth of such representations. It is probable that the instruction is not applicable either to the allegations in the complaint or to the evidence offered on the trial. From an examination of the evidence, it appears to me that there is very little, if any, evidence to which the instruction is applicable. The complaint, and the evidence in its support given on the part of the plaintiffs, makes out a case

of false representations made, knowing them to be false; and I do not understand that the evidence of Mons. P. Jerdee tends to show that he did not know the falsity of the representations made, if made as alleged by the plaintiffs. The instruction excepted to is defective, if defective at all, in not further stating that the representations were made with the intent to induce the plaintiffs to enter into the lease. That the learned circuit judge understood that the instruction as given was equivalent to such instruction is evident from the fact that he immediately followed it by an instruction which clearly embodied that idea. This instruction reads as follows, and was given at the request of the defendants, viz.: "There can be no recovery unless Mons. P. Jerdee represented as true a material matter which he at the time knew to be false, or did not have reason to believe to be true, and made the representation in such a way, or under such circumstances, as to induce a reasonable man to believe that it was true, and it was meant to be acted upon, and the plaintiffs, believing it to be true, acted upon their faith in it, and by so acting sustained damages." This latter instruction perhaps more clearly presents the idea that the material statement made must be made with an intent to induce the opposite party to enter into the proposed contract than the first instruction. We do not think the two instructions are so inconsistent with each other as to have in any way misled the jury, especially in view of the very clear manner in which the learned circuit judge afterwards in his general charge submitted the case to the jury upon the case as alleged in the complaint, and as presented by the evidence on the trial.

The learned circuit judge, after stating to the jury the substance of the complaint in the case, and the answer of the defendants, then adds: "If one person represents to another as true that which he knows to be false, and makes the representation in such a way and under such circumstances as to induce a reasonable man to believe that the matter stated is true, and the representation is meant to be acted upon, and the person to whom the representation is made, believing it to be true, acts upon the faith of it, and suffers damage thereby, this is fraud sufficient to constitute an action for deceit." Then, after stating that expressions of opinion as to what will occur in the future are not actionable, he says: "But if Mons. P. Jerdee said there was fifty acres of good marsh on this farm, and there was in fact only fourteen, this statement, if he knew it to be false, and he made it to deceive the plaintiffs, would form the basis of an action for fraud." "So, if he had said that the meadow land on his farm had produced one hundred tons of good hay per year which had been sold at seven dollars a ton, and he knew such statement to be false, and he made it to deceive, this would be a false and fraudulent statement." "Every false affirmation does not amount to a fraud. To constitute a fraud, a knowledge of the falsity of the representations must be shown to have existed in the minds of the persons making them at the time such representations were made." "Material representations made by M. P. J. to the plaintiffs, or either of them, when negotiating with them for leasing the farm, of matters assumed to be within his personal knowledge, are false and fraudulent in a legal sense, if made with intent to deceive the plaintiffs, if untrue, and are relied on by the plaintiffs to their damage, although M. P. J. did not know them to be untrue." Although exceptions to most of these instructions were taken on the trial, none of them are relied upon as error in this court. These instructions are certainly as favorable for the defendants as the law and the evidence in the case would warrant. The last instruction above quoted is substantially the same as the one given at the request of the defendants, and above referred to, and their correctness is fully sustained by the decisions of this and other courts. Cotzhausen v. Simon, 47 Wis. 103, 1 N. W. Rep. 473; McClellan v. Scott, 24 Wis. 81; Risch v. Von Lillienthal, 34 Wis. 250; Miner v. Medbury, 6 Wis. 295; Bird v. Kleiner, 41 Wis. 134; Wells v. McGeoch, 71 Wis. 196, 225-231, 35 N. W. Rep. 769;

C

Davis v. Nuzum, ante, 497, (decided at this term;) and numerous other cases from other courts, cited in the brief of the respondents. This last instruction is in all material respects like the one excepted to by the defendants, and which they allege is erroneous. The only difference is that in the last it is expressly stated that the representation must be made with intent to deceive, and in the first the idea that the statement must be made with intent to deceive or to induce the plaintiffs to enter into the lease is clearly implied. The language of the instruction is "that if you find that the defendant M. P. J., in making the contract for the lease, made positive statements," etc. We think it is fairly implied from this language that the statements made in such case would necessarily be made for the purpose of inducing the plaintiffs to enter into the lease, and so are brought within the rule contended for by the learned counsel for the defendants. But, if there be doubt about the real construction which this instruction should receive, we are very clear that under the pleadings, the evidence in the case, and other instructions given concerning the correctness of which there are no questions made, it is very clear that the defendants were not prejudiced by it, and the judgment should not be reversed for that reason. The judgment of the circuit court is affirmed.

STACY v. BRYANT et al.

(Supreme Court of Wisconsin. December 4, 1888.)

1. LOGS AND LOGGING-STATUTORY LIENS-SUPPLIES.

Under Laws Wis. 1885, c. 469, §§ 1, 2, supplies actually used in getting out logs, if sold for that purpose, constitute a lien on the logs, though they were placed in the store of the purchasers as part of their stock, to be sold in the usual course of trade, at a profit, to their employes and others.

2. SAME-EVIDENCE-SUFFICIENCY.

Though there be much evidence, direct and circumstantial, tending to show that the supplies were neither sold for nor used in getting out the logs, where one of the purchasers and his book-keeper have testified to the contrary, a verdict for plaintiff will not be set aside as against the evidence.

3. SAME-ENFORCEMENT OF LIEN-PLEADING-DESCRIPTION OF PROPERTY-AMENDMENT. A petition for a lien for such supplies, which describes the logs generally as "about 1,500,000 feet of pine saw-logs and timber, end-marked and stamped M B," may be amended after the evidence is introduced, to make the description more specific, and to conform to the proof, when under the circumstances it is evident that the defendants could not have been misled by the generality of the description.

Appeal from circuit court, Langlade county; GEORGE H. MYERS, Judge. Action by W. H. Stacy against M. Miller and E. Neff for supplies furnished them, and to establish the amount of the judgment recovered against them as a lien on certain logs owned by S. Bryant, R. W. Pierce, and O. H. Pierce. Judgment for plaintiff for $671.12, which was adjudged a lien on the logs mentioned, and the said Bryant and the Pierces appeal.

Lynch & McCarthy, for appellants. F. M. Guernesy, (Gerrit T. Thorn, of counsel,) for respondent.

TAYLOR, J. The respondent commenced his action in the circuit court against the said M. Miller and E. Neff to recover for a bill of feed, flour, butter, etc., sold by him to said Miller & Neff, about the 30th of January, 1886. The price of the goods sold, including freight paid by respondent, was $646.72; and in said action the respondent claimed a lien for the value of the goods sold, upon a lot of saw-logs owned by the appellants Bryant, Pierce & Pierce, and so the appellants were made parties to the action. The respondent claims that the goods were sold to Miller & Neff, upon the statement of Neff that he wanted the bill of goods for his lumber camp, and that he sold him the goods as supplies for that purpose. The evidence on the part of the plaintiff shows that at the time said goods were sold and delivered to said Miller & Neff they