
    McCartney, Executrix, Respondent, vs. Boyd, imp., Appellant.
    
      May 5
    
    June 1, 1915.
    
    
      Partnership: Fraud of surviving partner: Action for accounting: Sufficiency of complaint: Laches: Misjoinder of causes of action.
    
    1. In an action by a widow, as executrix, against a surviving partner of her deceased husband for an accounting and for cancellation of certain conveyances, a complaint alleging that defendant wil-fully concealed partnership property from plaintiff; that he falsely claimed that deceased'bwed the firm $500; that by means of a false and incomplete list of partnership property he procured an undervaluation thereof by the appraisers; and that by false representations he had induced plaintiff and the guardian of her minor child to join in selling the partnership assets, ostensibly to a third person but in fact to defendant himself, is held to state a cause of action based on fraud.
    2. Delay in bringing such action for a year after plaintiff was appointed executrix and discovered the fraud was not per se laches, especially in the absence of any showing that defendant was injured thereby.
    3. A partnership accounting being the main purpose of the action, the prayer for the ancillary remedy of cancellation of the conveyances made by the plaintiff individually did not show a mis-joinder of causes of action.
    Appeal from an order of tbe circuit court for Price county: Gr. N. Eisjobd, Circuit Judge.
    
      Affirmed.
    
    
      Action by plaintiff as executrix of tbe estate of her deceased husband for a cancellation of certain conveyances and for a partnership accounting. The complaint alleges that about the year 1897 her husband and the defendant Hugh Boyd entered into a partnership agreement to conduct a summer resort business, each to contribute equally and share equally; that such partnership continued till the death of plaintiff’s husband, July 26, 1908, during which time it had acquired valuable real estate and personal property. From July 26, 1908, to March, 1910, the defendant Boyd continued to conduct the business. About that time, by reason of his having knowingly and wilfully concealed from her and the guardian of her minor son the existence of valuable partnership property, and falsely claiming that her husband’s estate owed the partnership $500, and by fraudulently procuring an undervaluation of the partnership property from the appraisers chosen to appraise it, by presenting to them a false and incomplete list of partnership property, and by falsely representing that it was advisable to make a sale of all partnership assets to one G-rieves at a low price, when in fact Grieves was only a dummy and the sale was made to Boyd himself, he induced her and the guardian of her minor son to join in conveyances of the partnership property. It is further alleged that she was appointed executrix August 3, 1912, and that upon learning of the deceit practiced upon her she promptly notified the defendant that she would not abide by the conveyances either individually or as executrix. This action was begun October 15, 1913, and prays that the conveyances to Grieves, who had immediately quitclaimed his interest in the property conveyed to him to Boyd, and Grieves’s conveyance to Boyd as well as the settlement made by plaintiff with the defendant Boyd be set aside and that Boyd be required to account to plaintiff as executrix of the estate of her deceased husband.
    The defendant Boyd demurred to the complaint and urges as grounds for demurrer (1) tbat tbe complaint does not state facts sufficient to constitute a cause of action, and (2) tbat two causes of action are improperly joined. Erom an order overruling tbe demurrer be appealed.
    Tbe cause was submitted for tbe appellant on tbe brief of W. K. Parkinson, and for tbe respondent on tbat of Fisherr Hanna & Gaskin, attorneys, and Holland & Lovett, of counsel.
   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 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.  