Waite v. Willis

• Citation: 70 P. 1034,42 Or. 288
• Parties: WAITE v. WILLIS.
• Decision Date: 29 December 1902
• Court: Supreme Court of Oregon

70 P. 1034

42 Or. 288

WAITE v. WILLIS.

Supreme Court of Oregon

December 29, 1902

Appeal from circuit court, Douglas county; J.W. Hamilton, Judge.

Action by F.B. Waite, executor, against W.R. Willis. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action by the executor of the last will and testament of Fendal Sutherlin, deceased. Among other things, it is alleged by the complaint "that on or about the 18th day of September, 1901, the above-named defendant, W.R. Willis received and had for the use and benefit of plaintiff, from _____ Crouch, the sum of $334.05, in lawful money of the United States." Then follow allegations of demand, the refusal to deliver, etc. and a prayer for judgment for the sum named. To this the defendant answered that he is an attorney duly admitted to practice; that he was on the 3d day of September, 1901, employed and retained by plaintiff, as executor of the estate of Fendal Sutherlin, deceased, as attorney to conduct said estate to final settlement; that the money alleged to have been received by defendant was collected by him in the course of his employment; and that a final settlement of the estate has not been effected,--and prays the dismissal of the action. A general demurrer to this answer having been sustained, a demurrer was interposed to the complaint and overruled; and, judgment being rendered in plaintiff's favor, the defendant appeals.

Dexter Rice, for appellant.

O.P Coshow, for respondent.

WOLVERTON J. (after stating the facts).

A question of practice is suggested at the outset, to the effect that by demurring to the complaint the defendant waived his plea in abatement; but it will be more satisfactory to reach a conclusion upon the sufficiency of the complaint, on the one hand, and that of the answer, on the other, and thereby finally settle the controversy. The specific objection to the complaint is that it does not appear therefrom that the defendant has money in his hands belonging to plaintiff. By a slight transposition of the phraseology, which will indicate more clearly the idea of the pleader, it alleges that the defendant had and received from one Crouch $334.05, in lawful money of the United States, to the use and benefit of plaintiff. 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 the promise. Hammer v. Downing, 39 Or. 504, 520, 521, 64 P. 651,...