Divan v. Loomis
Wisconsin Supreme Court
APPEAL from the Circuit Court for Oreen County. The action was brought bjr Hiram Smith.' After the defendants had appealed to this court he died and the cause was revived in. the name of his executor, Henry Divan.
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APPEAL from the Circuit Court for Oreen County. The action was brought bjr Hiram Smith.' After the defendants had appealed to this court he died and the cause was revived in. the name of his executor, Henry Divan. The following statement of the case was prepared by Mr. Justice Cassoday: This is an appeal from an order overruling a demurrer to the complaint, alleging, in effect, that May 21,1884, Hiram Smith owned and was in the possession of the land in question, which was partly cultivated, with a dwelling-house and other buildings thereon; that said Smith was then ■seventy-four years of…
1Opinion of the CourtCassodat, J.
It is said that the complaint is insufficient because it fails to aver any request of Loomis to comply *152with the terms of the alleged agreement. An allegation of refusal implies a previous demand, and is equivalent to an allegation of a demand and a refusal. Hammond v. Mason & H. O. Co. 92 U. S. 724; Bogie v. Bogie, 41 Wis. 220. This being so, the breach is sufficiently alleged. Such agreement to furnish Smith a home, and to take care of and assist him to live in a comfortable manner, was personal upon the part of Loomis, and could not be shifted onto Trickle, against the will and-consent of…
2Cases cited2 opinions
- Bogie v. BogieWisconsin Supreme Court · 1876
- Hammond v. Mason & Hamlin Organ Co.Supreme Court of the United States · 1876
3Cited by7 opinions
- Glocke v. GlockeWisconsin Supreme Court · 1902
- Morgan v. LoomisWisconsin Supreme Court · 1891
- Beckman v. BeckmanWisconsin Supreme Court · 1894
- Heidel v. ShuteOregon Supreme Court · 1917
- California Canneries Co. v. Great Western Lumber Co.California Court of Appeal · 1919
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