## Facts

- The plaintiffs sought a municipal franchise to build and operate a city rail system.
- They retained the defendant, Winsor, as their attorney to assist in obtaining the franchise.
- As part of the franchise process, a $2,500 payment (or deposit/fee) had to be made to the city treasurer.
- The plaintiffs delivered $2,500 to Winsor, and Winsor paid the money to the city.
- The city declined to grant the franchise.
- The city returned the $2,500 to Winsor so that it could be returned to the plaintiffs.
- Winsor did not return the full $2,500; instead, he retained $1,250 for attorney services and returned the remainder to the plaintiffs.
- The plaintiffs sued, alleging that Winsor’s retention of $1,250 was “unjust, unlawful, and fraudulent,” and alleging that the reasonable value of Winsor’s services was $250.
- The complaint included allegations and characterizations that suggested more than one possible theory for recovery (including a fee dispute theory and language sounding in conversion).
- Winsor demurred to the complaint for failure to state facts sufficient to constitute a cause of action.
- The circuit court overruled the demurrer, and Winsor appealed.

## Issues

1. Under South Dakota code pleading, must a complaint identify a definite cause of action (such as contract versus tort) to withstand a demurrer?
2. Is a complaint demurrable when its allegations make it unclear whether the plaintiff is suing for breach of contract/overcharge of fees or for conversion of funds?

## Decision

- Yes. A complaint must be framed on a definite theory and must state facts showing that particular cause of action.
- Yes. Because the complaint did not clearly show whether the plaintiffs were proceeding in contract (or quasi-contract) or in tort for conversion, it was insufficient.
- The Supreme Court of South Dakota reversed the order overruling the demurrer and directed that the demurrer be sustained (with the usual opportunity for the plaintiffs to replead).

## Legal Principles

- Under code pleading, a complaint must state facts that identify a particular cause of action so the defendant and the court can know what claim is being tried.
- A plaintiff must make clear whether the action sounds in tort or contract and, relatedly, whether it proceeds at law or in equity; a pleading that leaves that classification uncertain is subject to demurrer.
- A complaint cannot be saved by treating significant, theory-defining allegations as “surplusage” when those allegations make the nature of the claim uncertain.
- Labels and conclusions (for example, calling conduct “unjust,” “unlawful,” or “fraudulent”) do not supply the missing clarity when the pleaded facts do not commit to a single, coherent theory.
- When a plaintiff uses conversion-type allegations, the pleading must state facts showing the plaintiff’s ownership or right to immediate possession of the property at the time of the alleged conversion.

## Conclusion

Jones v. Winsor holds that, under South Dakota’s code pleading rules, a complaint must be stated on a definite theory and must allege facts identifying the nature of the cause of action. Because the plaintiffs’ complaint against their attorney for withholding part of a refunded franchise payment blended a fee dispute theory with allegations sounding in conversion, without clearly choosing and supporting one cause of action, it failed on demurrer; the order overruling the demurrer was reversed and the demurrer was to be sustained.


Jones v. Winsor, 118 N.W. 716 (1908)