Clark v. Sherman

• Decision Date: 06 February 1893
• Citation: 5 Wash. 681,32 P. 771
• Parties: CLARK v. SHERMAN.
• Court: Washington Supreme Court

32 P. 771

5 Wash. 681

CLARK v. SHERMAN.

Supreme Court of Washington

February 6, 1893

Appeal from superior court, Pierce county; F. Campbell, Judge.

Action by Charlotte M. Clark against A. H. Sherman to recover for money had and received. A motion for a nonsuit was overruled, and defendant appeals. Reversed.

Charles W. Seymour, for appellant.

A. H. Garretson and Taylor & McKay, for respondent.

HOYT, J.

Plaintiff brought an action for money had and received. The proof introduced showed that the liability of the defendant, if any, did not arise at all on account of any money which had come into his possession under such circumstances as would authorize a recovery therefor, as for money had and received for the use of plaintiff. On the contrary, such proof showed that the liability of the defendant to the plaintiff grew out of an alleged contract, by which, in consideration of her agreeing to surrender to him the interest which she had in certain real estate, he agreed to pay her the amount of money for which she brought suit. Such being the fact, the case is brought directly within the decision of this court in Distler v. Dabney, 3 Wash. St. 200, 28 P. 335; and under the ruling therein announced the plaintiff had so failed to make out the cause of action stated in her complaint, at the time she rested her cause, that the motion of the defendant for a nonsuit, at that time interposed, should have been granted.

Plaintiff seeks to avoid the effect of that decision, by showing that her real cause of action is disclosed by the answer and reply, and that she ought to be allowed to recover on that account. We cannot sustain this contention. A plaintiff cannot allege one cause of action in his complaint, and then, by means of a reply, recover upon an entirely different cause of action. The judgment must be reversed, and the cause remanded, with instructions to sustain the motion of the defendant for a nonsuit.

DUNBAR, C.J., and ANDERS, SCOTT, and STILES, JJ., concur.