Keene v. Eldriedge

• Decision Date: 23 October 1905
• Citation: 47 Or. 179,82 P. 803
• Parties: KEENE v. ELDRIEDGE.
• Court: Oregon Supreme Court

82 P. 803

47 Or. 179

KEENE v. ELDRIEDGE.

Supreme Court of Oregon

October 23, 1905

Appeal from Circuit Court, Marion County; George H. Burnett, Judge.

Action by A.C. Keene against Nancy C. Eldriedge. From a judgment of nonsuit, plaintiff appeals. Reversed.

This action was commenced by filing a complaint of which the following, omitting the formal parts, is a copy: "First. That in Marion county, Oregon, on or about the 6th day of October, 1904, the defendant received from James Goffin Arthur Goffin, Adolf Goffin, and Yda Goffin, as agent of plaintiff, the sum of $399.48, belonging to and on account of plaintiff, and which is now due. Second. That thereafter, and prior to the bringing of this action, the plaintiff demanded payment thereof from the defendant. Third. That the defendant has not paid the said sum of $399.48, or any part thereof and refuses to pay the same," concluding with a prayer for judgment. Without interposing either demurrer or motion to this pleading, the defendant answered, denying each allegation of the complaint, and, a trial being had, the plaintiff introduced his testimony and rested, whereupon the court gave a judgment of nonsuit on the grounds (1) that plaintiff had failed to prove the cause of action set out in the complaint, (2) that there was a variance between the allegations of such pleading and of the proof, and (3) that no case had been established, because the complaint did not state facts sufficient to constitute a cause of action, and plaintiff appeals.

George G. Bingham and P.H. D'Arcy, for appellant.

A.M. Cannon, for respondent.

MOORE J. (after stating the facts).

The primary question to be determined is whether or not the complaint states facts sufficient to uphold a judgment, if rendered in plaintiff's favor. When the sufficiency of a complaint is challenged by demurrer or motion, it must be more strictly construed against the plaintiff than when that question arises on the admission of evidence, in which latter case all intendments in favor of the complaint are to be invoked. Patterson v. Patterson, 40 Or. 560, 67 P 664; McCall v. Porter, 42 Or. 49, 70 P. 820, 71 P 976; Carlyle v. Sloan, 44 Or. 357, 75 P. 217. When a complaint is filed and a copy thereof served, the defendant is given an opportunity to test its sufficiency by interposing a demurrer or motion, but, when he neglects to do so and answers to the merits, intending to question the adequacy of the pleading at the trial, by objecting to the admission of testimony, every intendment in favor of the averments of fact should be invoked and the objections summarily overruled, unless the complaint fails to state facts sufficient to constitute a cause of action, which defect is never waived nor cured by verdict.

Considering the principal inquiry involved, the statute provides that all forms of pleading in actions at law are abolished (B. & C Comp. § 64), and the complaint shall contain a plain and concise statement of the facts constituting the cause of action, without unnecessary repetition. Id. § 67, subd. 2. In Buchanan v. Beck, 15 Or. 563, 16 P. 422, Mr. Justice Thayer, in speaking of the sufficiency of a complaint, says: "It has been held in a great majority of the states that the mode of pleading heretofore known as 'common counts' may still be employed, notwithstanding the adoption of the reformed system. In this state, however, the right is denied. This court, in Bowen v. Emmerson, 3 Or. 452, held that the use of the general counts in assumpsit was wholly inconsistent with the theory of the Civil Code. The principle of that decision would not prevent a plaintiff from maintaining an action for money had and received for his use, provided he allege facts in his complaint sufficient to show that the money paid to the defendant justly and equitably belonged to the plaintiff." In Waite v. Willis, 42 Or. 288, 70 P. 1034, it was held, following the rule announced in Stewart v. Phy, 11 Or. 335, 3 P. 443, that a complaint alleging that the defendant received a certain sum of money for plaintiff's use and benefit was sufficient, thus apparently enlarging the rule theretofore announced. In deciding that...