#### North Side Loan *&*Building Society, Appellant, vs. Nakielski, imp., Respondent.

*February 23*

March *20, 1906.*

*Pleading: Complaint: Prayer: Amendment: Construction: Cause of action, at law or in equity?*

1. In an action on the bond of a defaulting treasurer of plaintiff the-complaint alleged, in substance, that certain words making the bond applicable to the then present term of the treasurer had -been omitted by mistake; that the treasurer had misappropriated the moneys of the plaintiff; that he failed to keep proper accounts and pay over to his successor a named balance, part of which he had loaned himself contrary to the regulations of the-plaintiff society; and that of many of the details of the treasurer’s transactions plaintiff was ignorant by reason of such-treasurer’s failure to keep or file any accounts, and concluded' with a prayer for recovery, from all the defendants (principal and sureties) of the named sum. On motion the court ordered that the complaint be made more definite and certain, whereupon an amended complaint was served setting up all that was in the original one, an allegation of the misappropriation of another definite sum, and more fully and definitely asserting the inability of plaintiff to state any further details by reason of knowledge with reference thereto being in the treasurer and having been wrongfully withheld from the officers of the society, and prayed (1) a reformation of the bond; (2) discovery and accounting by the treasurer for his transactions and ar-rearages; (3) judgment for the amounts so ascertained in a definite sum. *Held:*

(1) Apart from the prayer the original complaint stated a cause of action in equity.

(2) The amendment went no further than to somewhat amplify the facts stated in the original complaint, and to pray certain steps by the couft within its equity powers necessary to enable granting the same relief prayed in the former pleading.

2. The prayer of a pleading is no part of the cause of action, and while in construing a pleading, where the facts alleged leave-doubt as to the cause of action which the pleader intended to-present, the prayer may be often helpful in elucidating that intent, if a cause of action is clearly set out it cannot refute it.

3. In view of the limitation imposed by sec. 2830, Stats. 1898 (that amendment of complaints shall not substantially change the *540claim), the right of the plaintiff to amend before the time for answering has expired is subject to the limitation that the inherent difference between tort and contract and between law and equity cannot be ignored.

4. Where a complaint sets forth all the facts warranting equitable relief, the prayer may, before the time for answering has expired, be amended to demand other and further relief consistent with "the cause of action originally described in the allegation of facts.

'Appeal from a judgment of tbe superior court of Milwaukee county: J. 0. Ludwig, Judge.

*Reversed.*

Tbe complaint of tbe plaintiff alleged tbe election of defendant Scbramka as its treasurer in March, 1903, and tbe subsequent giving of a bond witb tbe other two defendants as sureties, conditioned, among other things, that said Scbramka “shall, at all times, in and during any succeeding term for which be may hereafter be elected as such treasurer” perform bis various duties as treasurer, including tbe keeping of books, accounts, and vouchers, and tbe accounting for all moneys, books, notes, mortgages, and other instruments in favor of tbe society during bis continuance in said office, and tbe proper disbursements and accounting for all moneys that should come to bis bands, and tbe delivery and payment to bis successor of all property and moneys; that, by mistake of tbe scrivener and contrary to tbe intention of all parties, there was omitted in tbe above quotation, after tbe word “during,” tbe words “tbe term for which be was elected and,” and that tbe intention of all parties was to execute a bond having such omitted words in it. Tbe complaint further generally alleged that the defendant Scbramka bad breached bis duties, misappropriated moneys, and failed to keep or make any account •or record of transactions, and that be bad paid out large ■amounts of money contrary to regulations and without proper authority; that be bad failed to report or pay'over to tbe society moneys collected by him for it; that be bad received upwards of $100,000 and bad failed to account therefor, and bad *541failed to pay or account to bis successor for the balance of' $14,822 remaining in his hands, and that of said sum he had pretended to loan $4,000 to himself, contrary to the regulations of the society, upon a pretended second mortgage; that as to many of the details of said money transactions the plaintiff was ignorant by reason of said Schramka failing to keep or file any accounts. The complaint concluded with a prayer for the recovery from all of the defendants of said sum of $14,822. On motion of defendant *Nahielski*the court ordered that the complaint be made more specific in certain definite respects. Within the time limited for answering the complaint, and after said order, the plaintiff filed an amended complaint setting up all that was in the original one, besides another alleged misappropriation of the sum of $2,000, and more fully and definitely asserting the inability of the plaintiff to state any further details by reason of knowledge with reference thereto being in the defendant Schramka and having been wrongfully withheld from the officers of the society, and prayed (1) a-reformation of the bond by inserting the words making it applicable to the term for which Schramka was elected; (2) for discovery and accounting by Schramka of his transactions and arrearages; and (3) for judgment for the amounts so ascertained in the sum of $14,822. This amended complaint was-returned by defendants, upon the stated reason that it attempted to change the cause of action from law to equity and that it did not contain facts sufficient to constitute a cause of action, and they moved that said amended complaint be stricken out and that the original complaint be dismissed for failure to comply with the order to make more specific. Whereupon the court ordered said amended complaint to be' stricken out with leave to plead over within ten days. Thereupon the plaintiff gave formal notice of its intention to stand upon the amended complaint and its refusal to serve another. Whereupon judgment was ordered and entered dismissing the-plaintiff’s complaint, and adjudging that the plaintiff take-*542nothing thereby as to the defendant Nalcielski, in whose favor ■costs were adjudged. Erom this judgment plaintiff appeals.

Eor the appellant there was a brief by *James 0. Officer*and *'Timlin & Glichsman,*and oral argument by *W.*S’. *Timlin.*

Eor the respondent there was a brief by Hoyt, Doe, *Urn-breit &*Olwell, attorneys, and *Drank M.*Hoyt, of counsel, •and a separate brief signed by *Moritz ~Wittig,*attorney, for defendant *Mayer,*and oral argument by *Mr. IToyt.*

Dodge, *J.*

We find ourselves unable to agree with the trial court that the amended complaint should have been stricken ■out. That document went no further than to somewhat amplify the facts stated in the original complaint, and to pray ■certain steps by the court within its equity powers necessary to enable granting the same relief prayed in the former pleading. Apart from the prayer the original complaint clearly and unambiguously states a situation arousing the power and ■duty of a court of equity to apply its peculiar methods in or■der to accomplish justice between the parties; and it contains industrious statement of facts having no relevancy whatever to any mere action at law which could be based upon the written instrument set forth. In *Jos. Dessert L. Co. v. Wad*leigh, 103 Wis. 318, 320, 79 N. W. 237, it was said:

> “When a complaint is presented for judicial inspection, it is the court’s first duty to ascertain the nature of the cause of action alleged, as well to protect the.rights of parties as to the place of trial, as to administer the proper remedy.” Approved in *Klipstein v. Raschein,*117 Wis. 248, 94 N. W. 63; *Grunert v.*Brown, 119 Wis. 126, 129, 95 N. W. 959.

In the *Klipstein Case*an allegation that defendant knowingly made certain false warranties was held sufficient to show conclusively that plaintiff intended an action in tort and not •on contract, although all the facts to support recovery on contract were present. Such reason would in the present case enforce the conclusion that the plaintiff intended to state a cause *543of action in equity, for to no other end could be have alleged mistake in writing the bond, or knowledge by defendant of tbe amounts and acts essential to a recovery, and plaintiff’s ignorance thereof. *Somervaill v.*McDermott, 116 Wis. 504, 93 N. W. 553. But it is urged the prayer is for purely legal relief, namely, merely a judgment for a sum of money. Such relief is, however, equally within the power of a court of equity, though ordinarily to be had in that jurisdiction only when other of its powers are sought to be invoked also. The most, therefore, that can be said of the prayer is that it did not demand all the activities of the court to which the cause of action stated by plaintiff entitled him. In construing a pleading where the facts alleged leave doubt as to the cause of action which the pleader intended to present, the prayer may often be helpful in elucidating that intent. *Gillett v.*Treganza, 13 Wis. 472; *Topping v.*Parish, 96 Wis. 378, 381, 71 N. W. 367. But, after all, the prayer is no part of the cause of action (Pomeroy, Cod. Rem. [4th ed.] § 471), and, if that is clearly set out, cannot refute it. We recently declared :

> “In treating a complaint to determine whether it is single or double as regards primary rights, the different objects in view by the pleader as indicated by the prayer for relief are not controlling. They are of no significance whatever, except to aid in clearing up obscurities that may exist as to whether he intended to state facts showing a violation of distinct primary rights or not. When there is no obscurity in that regard, the statement of facts upon which the prayer for relief is based alone speaks.” *South Bend C. P. Co. v. George C. Cribb Co.*105 Wis. 443, 447, 81 N. W. 675. See, also, *Fischer v. Laack,*76 Wis. 313, 321, 45 N. W. 104.

It is, of course, settled law in this state that those inherent differences between tort and contract and between law and equity cannot be ignored by courts in allowing amendments of complaints, in view of the limitation imposed by sec. 2830, Stats. 1898, that such amendments shall not substantially *544change the claim. *Jos. Dessert L. Co. v. Wadleigh, supra; Post v. Campbell,*110 Wis. 378, 85 N. W. 1032; *Gates v. Paul,*117 Wis. 170, 94 N. W. 55. It has also been held that the right of a plaintiff to amend before defendant has been pnt to his defense under sec. 2685, Stats. 1898, has some limitation, although the statute imposes none. *Carmichael v. Argard,*52 Wis. 607, 9 N. W. 470. It is, however, no infringement of the rule of these cases to hold that, to a complaint which sets forth all the facts warranting equitable relief, the prayer may be amended to demand other and further relief consistent with the cause of action originally described in the allegation of facts within the period limited by sec. 2685, Stats. 1898, and by authority of that section.

Concluding, as we must, therefore, that the service of the amended complaint was within the plaintiff’s right, of course the order striking out the same, as also judgment dismissing the action, were both erroneous. That complaint fully excused any lack of particularity by reason of plaintiff’s ignorance of details resulting from defendant’s breach of duty to inform it of his official acts, and presented a situation calling for the exercise of the court’s equitable power to impose the duty of accounting in the first instance upon such defendant. *Somervaill v. McDermott, supra.*

*By the Court.*— Judgment reversed, and cause remanded for further proceedings according to law.