Snow v. Tompkins

• Decision Date: 06 July 1955
• Citation: 286 P.2d 119,205 Or. 60
• Parties: Robert H. SNOW, Jr., Respondent, v. Morton TOMPKINS, Francis DeHarport, d/b/a/ City Realty Company, and Burr E. Tatro, Appellants.
• Court: Oregon Supreme Court

Page 119

286 P.2d 119

205 Or. 60

Robert H. SNOW, Jr., Respondent, v. Morton TOMPKINS, Francis DeHarport, d/b/a/ City Realty

Company, and Burr E. Tatro, Appellants.

Supreme Court of Oregon.

July 6, 1955.

C. E. Wheelock, Portland, argued the cause for appellants. On the brief were Wheelock & Richardson and Russell R. Niehaus, Portland.

Donald C. Walker, Portland, argued the cause for respondent. On the brief were Phelps, Burdick & Walker, Portland.

Before WARNER, C. J., and LUSK, BRAND and PERRY, Justices.

BRAND, Justice.

Robert H. Snow, Jr., brought this action to recover $2,000, with interest. He alleges that the defendants are indebted to the plaintiff in the sum of $2,000 money had and received on or about the 5th day of April, 1951. He alleges that the sum is due, owing, and unpaid, and that demands have been made therefor, and prays judgment. The answer is a general denial. The cause was tried by a jury and a verdict was returned in favor of the plaintiff for the sum demanded. Judgment was entered on the verdict and the defendants appeal.

This case raises a question of law. The defendant Morton Tompkins was the owner of a 72-acre peach and nut farm located on Grand Island, Yamhill County, Oregon. On 5 April the plaintiff executed an earnest money agreement for the purchase of the farm, which was signed by the vendor. The purchase price was $40,000, and $2,000 was paid as earnest money. The plaintiff refused to consummate the deal and the defendants refused, on demand, to return the $2,000, claiming that it had been forfeited. We quote from the brief of the defendants:

'At the trial, evidence was offered on behalf of Respondent and introduced over objection of Appellant that fraudulent misrepresentations induced Respondent to enter into the earnest money agreement. The case was submitted to the jury on this theory and the Court's instructions covered the subject of fraud.'

The defendants stand upon the legal proposition that evidence of fraud was inadmissible in an action for money had and received. There is no serious contention by the defendants in their brief that the evidence of fraud was insufficient to go to the jury, if such evidence was admissible in view of the nature of the pleadings. There are four assignments of error only. By the first, the defendants contend that the court erred in receiving evidence of false representations. By the second, they except to the denial of their motion for nonsuit and argue that the evidence which was admitted with relation to fraud was not admissible under the pleadings. By the third assignment it is contended that the court erred in denying defendants' motion for a directed verdict for the reasons previously set forth. The fourth assignment challenged the sufficiency of the complaint which the defendants at the time of trial conceded to be one which stated a good cause of action. We address ourselves to the question whether, under the circumstances of this particular case, the evidence of fraud inducing the transaction, was admissible in this type of action.

The technical nature of this defense does not commend itself to a court of law when considering an action in assumpsit in which decision must be upon the basis of equity and good conscience. The argument is earnestly made that the defendants had a right to know in advance the particular acts and things giving rise to the fraud, and that the fraud should therefore have been alleged. The argument is somewhat weakened in the instant case because the plaintiff, in his original complaint, specifically alleged fraudulent representations with reference to the susceptibility of the property to flooding during periods of high water. An amended complaint was filed whereby the plaintiff waived the tort and proceeded upon implied contract, under the common counts, but the evidence of fraud which was received in the trial on the action of assumpsit, related to the same matter which was alleged as fraud in the original complaint. Defendants neither moved against nor demurred to the amended complaint in assumpsit. They well knew the factual basis of the plaintiff's claim. The fact that in a tort action for fraud, facts constituting the fraud must be set forth in the pleading, does not necessarily require the conclusion that the same allegations concerning fraud must be made in an action on implied contract for money had and received. Briefly stated, the evidence presented by the plaintiff in the case at bar was to the effect that he was induced to purchase the property or to sign the earnest money agreement by fraudulent representations of the defendants, to the effect that the land was not subject to flooding, whereas in truth the land was subject thereto. The issue of the admissibility of such evidence was directly presented to the trial court. The defendant contends that the conventional allegation for money had and received, supported by evidence that the money had been paid under the inducement of fraudulent representations, is violative of the provisions of the statute, ORS 16.210, which require that the complaint shall contain a plain and concise statement of the facts constituting the cause of action, without unnecessary repetition. It may be that proceeding under the common counts does represent some divergence from the theory of code pleading, but the question cannot be determined without the examination of the authorities.

The defendants might perhaps claim some support from two early Oregon cases; Buchanan v. Beck, 15 Or. 563, 16 P. 422; and Bowen v. Emmerson, 3 Or. 452. These cases were reviewed and disapproved in Keene v. Eldriedge, 47 Or. 179, 82 P. 803. In that case the complaint alleged that the defendant received from persons named as agents of the plaintiff, a specified sum of money belonging to and on account of plaintiff. It alleged that the sum was due and that payment had been demanded and that no payment had been made. No motion or demurrer was filed. The trial court held that the abbreviated complaint failed to state a cause of action. Plaintiff appealed and judgment for the defendant was reversed. This court said:

'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 case, Mr. Justice Wolverton says: 'Formerly it was essential, in a count for money had and received, to employ the fiction of a promise, but this is no longer required under the Code. The facts should now be stated out of which the cause of action arose, and the law will imply...