Opinion
No. 92.
Argued March 2, 1971. —
Decided March 30, 1971.
APPEAL from an order of the circuit court for Washington county: MILTON L. MEISTER, Circuit Judge. Affirmed.
For the appellants there was a brief by Smith Sarafiny of Hartford, and oral argument by George E. Smith.
For the respondent there was a brief by O'Meara O'Meara of West Bend, and oral argument by Thomas O'Meara, Jr.
Facts.
This is an appeal from the trial court order overruling defendants' demurrer to the complaint. The plaintiff-respondent, Lawrence A. Ritterbusch, on December 19, 1969, commenced this action against defendants Ramona Ritterbusch, the wife of the plaintiff; Katie Jung, the mother of his wife; Carol Schmolbach, the daughter of his wife; and Wilfried Schmolbach, the husband of Carol Schmolbach.
The complaint alleges that an agreement was entered into in 1938 between the plaintiff and defendant, Katie Jung, and Katie Jung's husband, Henry Jung, now deceased. The complaint alleges that such agreement provided that the plaintiff would rent Henry and Katie Jung's farm; that plaintiff would work and develop said farm as his own; that plaintiff at his own expense would make improvements thereon; and that, in return for such work and services, the farm would be conveyed to plaintiff upon the death of Henry and Katie Jung.
The complaint alleges that, in reliance upon said agreement, the plaintiff worked and improved the farm from 1938 to 1967, and did expend his own moneys in excess of $46,297 on improvements. The complaint alleges that, in 1963, the defendants, Wilfried and Carol Schmolbach, commenced to reside on the farm and, with malice and with knowledge of the 1938 agreement, did conspire to influence Ramona Ritterbusch and Katie Jung so as to secure the farm for themselves. The complaint alleges that defendant Ramona Ritterbusch, plaintiff's wife, did then commence a course of conduct calculated and resulting in plaintiff being driven from the farm. The complaint alleges that, subsequently:
". . . the defendant, Katie Jung, in the year 1967, did convey her farm to Wilfried Schmolbach and Carol Schmolbach, for the price of Fifteen Thousand ($15,000); that said price is an inadequate consideration for the farm, and that said conveyance by Katie Jung to the Schmolbachs was in violation of the aforementioned agreement that had been made between the plaintiff and Katie Jung and Henry Jung; that at said time, said farm and buildings had a reasonable value in excess of Sixty Thousand Dollars ($60,000.00)."
The complaint alleges that, from 1938 to 1967, the plaintiff did, in good faith, perform the agreement and that he was prevented from further performing the agreement only by acts of the defendants. The plaintiff claims compensatory damages in the amount of $46,297 and "exemplary damages" in the sum of $50,000.
The defendants demanded a bill of particulars, and a bill of particulars was prepared and filed by the plaintiff wherein it was alleged that the agreement entered into in 1938 was an oral agreement. The defendants then filed a demurrer to plaintiff's complaint on the grounds that "the complaint does not state facts sufficient to constitute a cause of action." On April 1, 1970, the demurrer was overruled. From the order overruling the demurrer, this appeal is taken.
The sole question here is: Does the complaint state a cause of action against the defendants? At the demurrer stage, the facts alleged in the complaint are to be assumed to be true. The fact that the plaintiff may have difficulty in proving such facts cannot be considered. Only the legal premises are contested. ". . . A complaint, when attacked by demurrer, should be liberally construed, and sustained if it expressly, or by reasonable inference, states any cause of action. . . ."
Volk v. McCormick (1969), 41 Wis.2d 654, 658, 165 N.W.2d 185.
Christenson Arndt, Inc. v. Wisconsin Telephone Co. (1953), 264 Wis. 238, 243, 58 N.W.2d 682.
Gottlieb v. Milwaukee (1967), 33 Wis.2d 408, 415, 147 N.W.2d 633.
Bembinster v. Aero Auto Parts (1959), 7 Wis.2d 54, 57, 95 N.W.2d 778.
Here the defendants, by demurring, raised and rely upon the statute of frauds (sec. 240.08, Stats.) as a defense. Overruling such demurrer, the trial court held that in pleading a contract which is subject to the statute of frauds it is not necessary to allege facts to establish that the contract does comply with the statute or is within its stated exceptions. If this interpretation of the law in this state is correct, other issues raised, ranging from the exact nature of the agreement between the parties to questions relating to the matter of partial performance, were and are not within reach at the demurrer stage. It is correct.
The trial court properly cited and correctly relied upon the Purtell Case, in which this court stated:
Purtell v. Tehan (1966), 29 Wis.2d 631, 139 N.W.2d 655.
"There is a conflict in the holdings of this court whether in pleading a contract which is subject to the statute of frauds it is essential to allege facts to establish that the contract does comply with the statute. The more recent cases hold that this is not necessary, while the earlier cases held that it was. Ordinarily, where there is a conflict in our past decisions, we prefer to adhere to the more recent cases. Furthermore, the more recent cases in this instance are in accord with the principle that a complaint, when challenged by demurrer, is to be given a liberal construction to permit all reasonable inferences to be drawn in favor of a finding that a cause of action has been stated. . . ."
Id. at pages 636, 637. The decision cites with approval Eiche v. Wallrabenstein (1934), 215 Wis. 311, 313, 254 N.W. 534, where this court stated: ". . . in pleading a contract which the statute of frauds requires to be in writing, it is not necessary to allege the facts relied on to take the case out of the statute. . . ." (Same language quoted with approval in Black Eagle Oil Co. v. Globe Oil Refining Co. (1958), 3 Wis.2d 340, 343, 88 N.W.2d 684.)
Of the oral agreement for lease and conveyance here, as with the listing contract involved in Purtell, it was sufficient to allege the existence of a contract, leaving the determination of its validity under the statute of frauds for proof at the trial. Unless the reasoning and result reached in Purtell is reversed, it controls. It is not reversed, and it requires affirmance of the trial court finding that ". . . the language in the complaint is sufficient to state a cause of action against the demurrer interposed by the defendants."
By the Court. — Order affirmed.