Hornefius v. Wilkinson

• Decision Date: 04 February 1908
• Parties: HORNEFIUS v. WILKINSON.
• Court: Oregon Supreme Court

93 P. 474

51 Or. 45

HORNEFIUS v. WILKINSON.

Supreme Court of Oregon

February 4, 1908

Appeal from Circuit Court, Umatilla County; H.J. Bean,Judge.

Action by Louisa Hornefius against William J. Wilkinson. From a judgment for plaintiff, defendant appeals. Affirmed.

D.W Bailey and W.M. Peterson, for appellant.

G.W Phelps, for respondent.

KING C.

This is an action to recover $1,500, with interest, alleged to have been delivered and intrusted to defendant by plaintiff under an express and implied contract of repayment on demand, on which contract it is averred that defendant on January 1, 1902, acknowledged $1,600 to be due plaintiff which he then and there agreed to pay, but had, after repeated requests, neglected and refused to do. The complaint is in the usual form for money had and received; failing however, to allege that it was the property of plaintiff, and that there was any consideration for the transaction. The answer admits the receipt of the money referred to, and asserts that it was received by defendant for the purpose of loaning it for plaintiff with money of his own, the profits from which were to be divided between them in proportion to their respective interests; and that in response to her request from time to time for current expense money he had advanced various sums to plaintiff, aggregating $710; that the funds were loaned as requested and in the manner agreed, but that, through no fault of defendant, but owing to unfortunate investments, the money of both was lost, on account of which his liability is denied. A reply being filed placing the cause at issue, trial was had resulting in a verdict and judgment as demanded.

Defendant assigns as error: (1) The admission of a certain check in evidence without sufficient identification; (2) the admission in evidence of certain letters offered, in which erasures appear without first accounting therefor; (3) the refusal of the court to grant defendant's motion for a nonsuit. The points named will be treated in their inverse order. Other questions were raised, both in the pleadings and at the trial, not indicated either in the foregoing synopsis of issues stated or errors suggested, which, not being before us, will pass unnoticed. Independent of the letters offered, an examination of the testimony discloses sufficient evidence in support of plaintiff's averments to be submitted to the jury. It appears from the testimony that plaintiff furnished the money as alleged, and that defendant purchased a mortgage with it which he afterwards sold, without accounting for the proceeds thereof. The receipt of the money is substantially admitted by the answer, and, as stated, the proof on the other points is sufficient to support the verdict.

It is insisted, however, that the complaint does not state sufficient facts to constitute a cause of action, nor to warrant a judgment under the testimony offered, in respect to which it is maintained that the complaint omits stating that the money intrusted and delivered to defendant was the property of the plaintiff, and that, in the absence of this averment, it must be presumed to be the property of defendant, making a sufficient consideration for its return an essential allegation. This contention overlooks the important feature that the absence of these averments, if considered otherwise necessary, is supplied by the answer from which it can clearly be inferred that the money furnished was the property of plaintiff. And this is also sustained by testimony offered without objection to that effect, which, in the absence of a demurrer to the complaint and after verdict, is sufficient. Nicolai v. Krimbel, 29 Or. 76, 43 P. 865; Patterson v. Patterson, 40 Or. 560, 67 P. 664; Keene v. Eldriedge, 47 Or. 179, 82 P. 802; Madden v. Welch, 48 Or. 199, 86 P. 2; Bade v. Hibbard (...