Distler v. Dabney

• Decision Date: 25 November 1891
• Parties: DISTLER v. DABNEY. [1]
• Court: Washington Supreme Court

28 P. 335

3 Wash. 200

DISTLER v. DABNEY. ^[1]

Supreme Court of Washington

November 25, 1891

Appeal from superior court, Chehalis county; MASON IRWIN, Judge.

Action by Rudolph Distler against Joseph B. Dabney on common counts for money received. Judgment for plaintiff, and defendant appeals. Reversed.

Scofield & Scofield, for appellant.

M. J. Cochran, for respondent.

DUNBAR J.

This is an action brought by plaintiff against defendant on common counts for money received. The plaintiff alleges in his complaint that defendant became indebted to him between the 21st day of October, 1889, and the 12th day of June, 1890, in the sum of $767.65, had and received from said plaintiff by the said defendant for the use of said plaintiff. The first allegation is as follows: "(1) That on the 21st day of October, 1889, said defendant became indebted to the said plaintiff in the sum of $250, as for money had and received from said plaintiff by the said defendant for the use of said plaintiff,"-with a demand of payment and refusal to pay. The other allegations are the same, with exception of amount and time. The answer of defendant denies the debt in a general way, and sets up as a further defense that the money payments mentioned in the complain were paid by plaintiff to defendant as part payment on certain lots of land which defendant had contracted in writing to sell and deed to plaintiff on certain conditions, and sets out the written contract; that afterwards, at the request of plaintiff, the time of payment and the execution and delivery of the deed specified in the contract was extended; and that in compliance with said contract, and said agreed extension of time, defendant executed and tendered to plaintiff a deed to said land, which plaintiff refused to accept. The reply admits the contract pleaded by defendant, and admits that the payments set forth in the complaint were paid under said contract, and alleges that the plaintiff complied with the conditions of said contract; that the defendant failed to comply therewith, and failed to deliver to plaintiff a deed to said land within the time prescribed by the contract. Defendant moved the court for a judgment on the pleadings objected to the testimony offered by plaintiff, and at the close of plaintiff's testimony moved for a nonsuit. Said motion was overruled.

It is contended by the appellant that there was a fatal variance between the allegations in plaintiff's complaint and the proof offered upon the trial, and that the complaint and reply are inconsistent with each other. It appears from the reply, and is conceded by the respondent, that the action was based upon the alleged breach of contract. Under the fictions of the common law, and the license given to plead presumptions and what the pleader conceived to be the legal effect, and operation of the facts, instead of the facts themselves, this form of contract might have been sustained in this kind of an action; but under the Code system of pleadings another rule is laid down. Fictions are abolished and presumptions are not to be pleaded as facts, but the facts themselves must be stated. Section 73 of the Code provides as follows: "Sec. 73. All the forms of pleadings heretofore existing in civil actions, inconsistent with the provisions of this Code, are abolished, and hereafter the forms of pleadings, and the rule by which the sufficiency of the pleadings is to be determined, shall be as herein prescribed." Let us now see what form of pleading is prescribed. Section 76 prescribes that the complaint shall contain a plain and concise statement of facts constituting the cause of action. It is a "plain and concise statement of facts" which the law requires, and not their legal effect, or the legal conclusions inferred from them, with the commendable object in view, no doubt, of informing the defendant of the exact nature of the claim against him, and of the facts relied upon to establish it, so that he can answer intelligently and directly, without leaving him mystified and uncertain as to whether he has drawn the right deduction from legal presumptions, so that the true matters in issue can be brought directly to the attention of the court and of the jury. Mr. Pomeroy, in his masterly work on Remedies and Remedial Rights, in analyzing the phrase "cause of action," as used by the Codes, describes it as consisting of two distinct elements: (1) The plaintiff's primary...