Davis v. Tyee Industries, Inc.
Decision Date | 16 August 1983 |
Citation | 668 P.2d 1186,295 Or. 467 |
Parties | Darrell DAVIS, Respondent on review, v. TYEE INDUSTRIES, INC., a Washington corporation, and Brodie Hotel Supply, Inc., a Washington corporation, now known as Brodie-Dohrmann, Inc., a Washington corporation, Petitioners on review. CA A20704; SC 28894. |
Court | Oregon Supreme Court |
Mark McCulloch, Portland, argued the cause for respondent on review. With him on the brief was Powers & McCulloch, Portland.
David R. Foster, Portland, filed a brief as amicus curiae for Oregon Association of Defense Counsel.
In Banc. *
In Adams v. Crater Well Drilling, Inc., 276 Or. 789, 556 P.2d 679 (1976), we upheld an award of punitive damages recovered incident to an assumpsit claim for money had and received because the defendant's conduct was "essentially tortious." 276 Or. at 794. The case at bar also involves a claim for money had and received and the question presented relates to the necessary pleading foundation to recover punitive damages incident to such a claim. There was a verdict and judgment for the plaintiff for general and punitive damages. The Court of Appeals affirmed, Davis v. Tyee Industries, Inc., 58 Or.App. 292, 648 P.2d 388 (1982).
The issue involves a pleading question: In an action pleaded as an assumpsit claim for money had and received in which the plaintiff seeks punitive damages, what allegations must the complaint contain in order to support a recovery of punitive damages? We first examine the history of this form of action and its relation to claims for damages for tortious conduct. 1
The common law forms of action of debt, covenant and account were conceived as property claims and were ill adapted to deal with the numerous ways in which claims for breach of contract, express or implied, could arise. Over a period of centuries the English courts developed the assumpsit form of action. Special assumpsit permitted damages for the breach of a simple contract. The next creation was general assumpsit, which provided a remedy in a variety of situations in which, although there was no contract between the parties (express or implied in fact), the law would create a promise to pay in order to avoid unjust enrichment. Thus, if someone paid money to the defendant that should have been paid to the plaintiff, the law created an implied-in-law "contract" which required the defendant to pay the money to the plaintiff. Often referred to as indebitatus assumpsit or quasi-contract, the actions had an equitable At least three classes of "common counts" of general assumpsit were created, including (1) the indebitatus counts, (2) the value counts, and (3) account stated. Major indebitatus counts included money paid to the defendant's use, money had and received, and goods sold and delivered. Major value counts included quantum meruit and quantum valebant.
character because, under the circumstances, "the defendant * * * is obliged by the ties of natural justice and equity to refund the money." Moses v. MacFerlan, 2 Burr. 1005, 97 Eng.Rep. 676 (KB 1760)
The money count for money had and received came to be used as a vehicle to recover damages for torts. If one by fraud, duress, trespass or other tort obtained another's property and converted it or sold it to another, it was said that the plaintiff could "waive" the tort and sue in assumpsit. 2
"Thoughts much too deep for tears subdue the Court When I assumpsit bring, and godlike waive a tort." John Leycester Adolphus, The Circuiteers, 1821, reprinted in 1 L.Q.Rev. 232 (1885) 3
This led many lawyers to sue in assumpsit rather than in tort seeking a more favorable measure of damage, a longer statute of limitations, more liberal joinder of causes of action, or a lesser burden of proof.
Pleading a claim in assumpsit does not transform a tort into a contract. Professor Corbin wrote:
Compare Form 8 of the FRCP Appendix of Forms, which lists this form of complaint for money had and received:
Oregon, in its first pleading statute, required the complaint to contain:
"A plain and concise statement of the facts constituting the cause of action * * *." The Codes and General Laws of Oregon § 66.2 (Hill ed. 1885).
In 1869, this court held that the common law pleading of assumpsit was inconsistent with the then new code pleading requirement that facts be pleaded. Bowen v. Emmerson, 3 Or. 452 (1869), held this assumpsit pleading to be legally insufficient: "On or about the eighteenth day of February, 1868, plaintiffs sold and delivered to the defendant 4,000 lbs. of flour, and that the same was worth $212." Id. In Buchanan v. Beck, 15 Or. 563, 566, 16 P. 422 (1888), the court referred to Bowen v. Emmerson, supra, as holding that "the use of the general counts in assumpsit [is] wholly inconsistent with the theory of the civil code." In 1905 the Buchanan and Bowen holdings were disapproved. Keene v. Eldriedge, 47 Or. 179, 182, 82 P. 803 (1905), held that "in the absence of a motion to make the pleading more definite and certain, * * * the averment that defendant * * * received from the persons named the money in question, belonging to and on account of plaintiff, states facts sufficient to constitute a cause of action."
This court has continued to recognize and enforce assumpsit actions. In Snow v. Tompkins, 205 Or. 60, 286 P.2d 119 (1955), the complaint alleged a simple common law assumpsit count for money had and received. No punitive damages were sought. At trial, defendant objected to any evidence of fraud on the ground that fraud was not pleaded. The trial court overruled the objection, saying:
"The defendant has answered to that second amended complaint without demurring to it; defendant concedes that the second amended complaint states a good cause of action, but objects to the introduction of evidence as to fraud for "I have come to the conclusion that inasmuch as the second amended complaint states a good cause of action not being attacked by the defendants, anything is admissible under that complaint which would give rise to an implied promise to repay the money held by the defendants.
the reason that fraud is not pleaded in its specifications in detail, as required in an action for fraud.
5
We affirmed, saying:
* * *." 205 Or. at 67, 286 P.2d 119.
This court has held that where a contractual relationship exists between persons...
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