Truro v. Passmore

• Decision Date: 03 April 1909
• Citation: 100 P. 966,38 Mont. 544
• Parties: TRURO et al. v. PASSMORE et al.
• Court: Montana Supreme Court

100 P. 966

38 Mont. 544

TRURO et al. v. PASSMORE et al.

Supreme Court of Montana

April 3, 1909

Appeal from District Court, Silver Bow County; Geo. M. Bourquin Judge.

Action by Leo Truro and another against Charles Passmore and another. Judgment for defendants. Plaintiffs appeal. Affirmed.

Denny & Davies, for appellants.

C. M Parr and McBride & McBride, for respondents.

SMITH J.

The complaint in this action alleges that on the 24th day of April, 1907, the defendants received the sum of $3,000 from the plaintiffs "to and for the use of the plaintiffs," which sum, after demand, the defendants have refused to repay. The answer is a general denial. At the trial the plaintiffs introduced in evidence a written contract between the parties, which recited that on the 24th day of April, 1907, defendants agreed to sell to plaintiffs a one-third interest in a certain option agreement with third persons, which on the day before, April 23d, had been extended to December 1, 1907, and also a one-third interest in the Susie quartz lode mining claim, for a consideration of $2,000 in cash, and an additional $1,000, which was to be applied, by the Passmores, on the purchase price of the mining claims covered by the option. Plaintiffs proved the payment of the $3,000 to the defendants under the terms of the contract, and also offered evidence tending to prove that the option had expired when their contract was made, and that the renewal thereof was procured by the Passmores after the $3,000 had been paid, by paying $1,000 thereof to the owners of the property covered by the option, in consideration of which payment the option was extended to December 1st, and the purchase price reduced from $14,000 to $13,000. The written agreement also provides as follows: "Now it is understood and agreed by the parties hereto that they will proceed as soon as practical to organize a stock company for the purchase of the mining property referred to in this agreement and to use their best efforts to put a sufficient amount of the capital stock of such company on the market to raise sufficient capital out of the proceeds of the sale of said stock to pay for said property, to meet the expenses of the sale of stock and to pay the expenses of putting said property to patent," and to repay the Truros the $1,000, "which they shall have paid on said purchase price," etc. Plaintiffs offered to show that the whole contract was void as having been conceived and entered into in fraud, by the defendants, without any intention of carrying out its terms, and with the sole object of inducing the plaintiffs to part with their money. The court held the testimony to be inadmissible under the pleadings, for the reason that the facts relied upon to show fraud were not set forth in the complaint. No corporation was ever formed, and the option agreement expired on December 1st by lapse of time, without having been taken up by the parties to this action. Mrs. Truro testified that she had never been tendered a deed for the one-third interest in the Susie claim; but one of the defendants testified that a deed to this interest was executed on September 2, 1907, and tendered to Mrs. Truro in November following. Defendants moved for a peremptory instruction to the jury to find in their favor, for the reason, among others [We state our understanding of the motion], that the plaintiffs cannot recover in this action as for money had and received. The court granted the motion, and from a judgment on the verdict rendered pursuant to the court's instruction, and an order denying a new trial, the plaintiffs have appealed. Numerous assignments of error are found in appellants' brief, but the decisive question involved is one of pleading. If the ruling of the court was correct, it must be sustained regardless of the reason assigned therefor.

The first contention is that the court erred in excluding evidence of fraud on the part of the defendants. This assignment raises the main question in the case. Many cases are cited to the effect that fraud may be shown under a count for money had and received, without further allegations. The great majority of the cases are from common-law jurisdictions, and would, perhaps, be in point if that system of pleading obtained in this state. Some of the cases cited, however, seem to be squarely applicable to this case. The Supreme Court of Wisconsin, in Grannis v. Hooker, 29 Wis. 65, held that a complaint containing what, under the former system of pleading, would be called a count for money had and received stated a good cause of action under the code system of pleading, and that in support of such complaint the plaintiff was entitled to introduce evidence that the defendant procured the money sued for by means of fraud in an oil land transaction. It was there said: "It is claimed by the defendant that all the facts with reference to the alleged fraud should have been distinctly stated in the complaint; otherwise the plaintiff is not entitled to prove them. On the other hand, it is claimed that all it is necessary the complaint should contain is substantially an allegation that the defendant has received a certain amount of money to the use of the plaintiff, as in the old form of a declaration in indebitatus assumpsit. We are inclined to sanction this latter view, and to hold that the facts which, in the judgment of the law, create the indebtedness or liability need not be set forth in the complaint."

Another case cited by appellants is Cory v. Board, etc., 47 N. J. Law, 181. In that case it appeared that the defendant a member of the board of chosen freeholders, made out bills to himself against the county, ostensibly for money paid by him for work on bridges, not showing when, or by whom, or on what bridges, or under whose authority the work had been done. These bills were certified by the defendant as one of the committee of the freeholders, and were paid. The court said: "The first question raised by the assignment of errors in this cause is whether money fraudulently obtained by the defendant below from the plaintiff can be recovered on the common count for money had and received, which does not set out the particulars of the fraud. This may be answered by extracts from the opinion of the King's Bench, delivered by Lord Mansfield in Moses v. McFerlan, 2 Burr. 1005: 'If the defendant be under an obligation, from the ties of natural justice, to refund, the...