Moser v. Pugh-Jenkins Furniture Co.

• Court: Idaho Supreme Court
• Writing for the Court: BUDGE, C. J.
• Citation: 173 P. 639,31 Idaho 438
• Decision Date: 22 June 1918
• Parties: MARY A. MOSER, Respondent, v. PUGH-JENKINS FURNITURE COMPANY, a Corporation, Appellant

173 P. 639

31 Idaho 438

MARY A. MOSER, Respondent,
v.
PUGH-JENKINS FURNITURE COMPANY, a Corporation, Appellant

Supreme Court of Idaho

June 22, 1918

FRAUD-PLEADING-COMMON COUNT-SUFFICIENCY OF.

1. A common-law count for money had and received, without alleging the facts creating the indebtedness, is insufficient to state a cause of action for fraud, under Revised Codes, sec. 4168, requiring a complaint to state the facts constituting the cause of action in ordinary and concise language.

[As to how far common counts in assumpsit are allowable under the code system of pleading, see note in 57 Am.Dec. 544]

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. P. McCarthy, Judge.

Action for money had and received. Judgment for plaintiff reversed; new trial granted.

Judgment reversed and a new trial granted. Costs awarded to appellant.

Chas. M. Kahn, for Appellant.

"In an action where one is entitled to relief at law or relief in equity, his complaint must contain a statement of the facts constituting the cause of action in ordinary and concise language." (Bates v. Capital State Bank, 21 Idaho 141, 148, 121 P. 561.)

"The complaint of money had and received, unless on an account, must usually be special, setting forth the relation of the parties and the contract or wrong by means of which the money was received." (Abbott's Trial Evidence, p. 335; Pomeroy's Remedies and Remedial Rights, 2d ed., sec. 554, p. 611; Pomeroy's Code Remedies, sec. 544, p. 372; St. Louis Sanitary Co. v. Reed, 179 Mo.App. 164, 161 S.W. 315.)

"Fraud is never presumed, and in order to entitle a party to relief either at law or in equity on that ground, it is essential that the fraud be distinctly alleged in the pleadings, so that it may be put in issue and evidence thereof given." (9 Am. & Eng. Ency. of Pleading and Practice, 684, 685; Sutherland's Code Pleadings and Practice, secs. 6878, 6890; Bates' Code Pleading and Practice, p. 1453; Estee's Pleadings, sec. 2748; 10 Standard Ency. of Proc., p. 49; Southall v. Farish, 85 Va. 403, 7 S.E. 534, 1 L. R. A. 641; Strong v. Whybark, 204 Mo. 341, 120 Am. St. 710, 102 S.W. 968, 12 L. R. A., N. S., 240; Chase v. Rusk, 90 Mo.App. 25; Wolford v. Powers, 85 Ind. 294, 44 Am. Rep. 16; McClinton v. Chapin, 54 Fla. 510, 14 Ann. Cas. 365, 45 So. 35; Patton v. Taylor, 48 U.S. 132, 12 L.Ed. 637-650; Noonan v. Braley (Lee), 67 U.S. 499, 17 L.Ed. 278, 281; Wetherly v. Straus, 93 Cal. 283, 28 P. 1045; Hammond v. McCollough, 159 Cal. 639, 115 P. 216; In re Yoell's Estate, 164 Cal. 540, 129 P. 999; Brown v. Bledsoe, 1 Idaho 746; Abrams v. White, 11 Idaho 497, 83 P. 602; Kemmerer v. Pollard, 15 Idaho 34, 96 P. 206; Wilson v. Baker Clothing Co., 25 Idaho 378-388, 137 P. 896, 50 L. R. A., N. S., 239.)

S. L. Tipton and D. A. Dunning, for Respondent.

The action is one in assumpsit for money had and received, and the pleading on the part of the plaintiff is in the common-law form for money had and received. This is the proper action to recover money obtained under a contract induced by fraud, or where there has been a rescission of contract. (Lockwood v. Kelsea, 41 N.H. 185.)

"To sustain the count for money had and received by the defendant for the use of the plaintiff it is only necessary to show that the defendant has obtained possession of money, or received something as money, which ex aequo et bono he ought to refund." (2 Ency. Pl. & Pr. 1016.)

"It is a liberal action in which the plaintiff waives all torts, trespasses and damages and claims only the money which the defendant has actually received. Thus this count may also be supported by evidence that the defendant obtained the plaintiff's money by fraud or false pretenses." (3 Elliott on Evidence, sec. 1729; Stout v. Caruthersville Hdw. Co., 131 Mo.App. 520, 110 S.W. 619, 621.)

Under the decisions of practically all the code states the common-law form of money had and received states a cause of action. (Miller v. Abrahamson, 9 Cal.App. 396, 99 P. 534; Pomeroy's Code Remedies, 3d ed., sec. 542; Grannis v. Hooker, 29 Wis. 65; Keene v....