
    Sellers, Appellant, vs. The First Presbyterian Church of West Superior and others, Respondents.
    
      October 28
    
    November 8, 1895.
    
    
      Pleading: Voluntary assignment.
    
    An allegation that one A. was duly appointed assignee of the firm of B. & Co. and thereafter duly qualified as such assignee and entered into the discharge of his trust, cannot be considered as an allegation that B. & Co. made a general assignment to A. for the benefit of creditors.
    Appeal from an order of the superior court of Douglas county: Charles Smith, Judge.
    
      Affirmed.
    
    For the appellant the cause was submitted on the brief of John B. Arnold. To the point that the allegation that E. A. Arnold was duly appointed assignee of W. A. Boyd & Co., and thereafter qualified as such and entered into the discharge of his trust, etc., implies that the contract was in writing and valid under the statute, he cited Robbins v. Bev-erill, 20 Wis. 146; Bank of River Falls v. Qerma/n Am. Ins. Oo. 12 id. 538; Simmer v. Richardson, B. & Go. 16 id. 464; Jones v. Baris, 22 id. 421.
    For the respondents there was a brief by Ross, Bwyer & Ila/niteh and Reed do Reed, and oral argument by W. B. Bwyer.
    
   WiNslow, J.

This is an action to foreclose a mechanic’s lien upon the defendant’s church building, brought by the plaintiff, who claims to own the claim for lien by virtue of an assignment from the original contractor. The claim was the property of William A. Boyd & Co., and the allegations which are relied on.to show that the claim was assigned to the plaintiff are as follows: “ That on the 18th day of August, 1892, E. A. Arnold was duly appointed, assignee of W. A. Boyd & Co., and thereafter duly qualified as such as-signee and entered into the discharge of his trust;” and that thereafter the said Arnold, as such assignee, duly sold,, assigned, and transferred the claim in question to the plaintiff. A general demurrer to the complaint was sustained on the ground that the complaint does not show any assignment of the claim to the plaintiff.

The ruling was plainly right. The allegation that Arnold was appointed assignee of the firm of Boyd & Co., and qualified as such, cannot be considered as an allegation that Boyd & Co. made a general assignment to Arnold for the benefit of creditors. We may guess that this is what the pleader meant, but the pleading does not say so. No voluntary assignment for the benefit of creditors being alleged, it is clear that the pleading nowhere alleges, either directly or by implication, that Boyd & Co. ever assigned this claim to any one. Such an allegation was essential, and its absence is fatal to the complaint. R. S. sec. 3322.

By the Court.— Order affirmed.  