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quests of defendant, as aforesaid, since the 2d day of July, 1906, has aggregated the sum of $17,625.10.

3. That the total amount due from plaintiff and Laursen to defendant for all of said subcontracts hereinbefore referred to, since and including the 2d day of July, 1906, has been and now is the sum of $17,003, and no further or other sum whatsoever, and that the balance now due from defendant to plaintiff, by reason of such overpayment, and by reason of the assignment hereinafter alleged, is the sum of $622.10.

5. [Averment of assignment as in paragraph 3, first count.] Wherefore, plaintiff prays judgment against defendant for said. sum of $622, and costs of suit. Avery & French, Attorneys for plaintiff.

[Verification.]

FORM No. 669-For recovery back of a wager.

[Title of court and cause.]

The plaintiff complains of the defendant, and alleges:

"

1. That on the day of 19 at the plaintiff deposited in the hands of the defendant, as stakeholder, the sum of $ which was to abide the event of a wager entered into between the plaintiff and one L. M., on the result of [a horse race, or game of chance, specifying] then about to take place.

"

2. That such wager was in violation of the statute entitled [set out title], passed and acts amending the same and supplementary

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thereto.

3. That the result of said [horse race, etc.] yet remains undetermined, and the defendant still retains said money as stakeholder. 4. That on the day of , 19, the plaintiff demanded the return of said money of the defendant; that said sum has not, nor has any part thereof, been returned or paid back.

[Concluding part.]

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FORM No. 670—To recover specific moneys lost by a servant in gambling. (In Ramirez v. Main, 11 Ariz. 43; 89 Pac. 508.)1

[Title of court and cause.]

Plaintiff complains of defendant, and alleges:

That on the 20th day of July, 1903, in the said county of Santa Cruz, one Jesus Mendoza, being then and there the servant of and in

1 The complaint, substantially as given above, was sustained as against a gen. eral demurrer: Ramirez v. Main, 11 Ariz. 43, 89 Pac. 508, 509.

the employ of this plaintiff, had in his possession, and instrusted to him by this plaintiff, as such servant and agent, a certain sum of money, to wit, the sum of $6,000, in money of the republic of Mexico, the same being the property of this plaintiff, and being intrusted to the said Jesus Mendoza, as aforesaid, for the specific purpose of safely carrying and conveying the same from the bank of Sonora to the office or place of business of this plaintiff, and to be delivered to this plaintiff for his use and benefit; that the said Jesus Mendoza, without the knowledge or consent of the plaintiff, and in violation of his trust as such servant or employee, did, at the date and in the county aforesaid, engage in a gambling game with one Frank M. Main, the defendant herein, and thereupon did lose and cast to the possession of the said Frank M. Main, the sum of $5,950, money or the republic of Mexico, as aforesaid, the same being of the said money of the said C. Ramirez the plaintiff herein, intrusted to the said Jesus Mendoza, as aforesaid; that the said Frank M. Main has and holds the said sum of $5,950, money of the republic of Mexico, as aforesaid, the property of this plaintiff, without consideration, and without legal or equitable title; that the said defendant is indebted to this plaintiff in the said sum of $5,950, money of the republic of Mexico, as aforesaid, all and every part of which is due from the said defendant to this plaintiff; that on said 20th day of July, 1903, one dollar of the money of the republic of Mexico was of the value of forty-three cents of the money of the United States of America, and that the said. sum of $5,950, of money of the republic of Mexico, was on the said 20th day of July, 1903, of the value of $2,558.50, in lawful money of the United States of America; that plaintiff has demanded the said sum of money so due, but that defendant has not paid the same, nor any part thereof.

Wherefore, the plaintiff prays judgment against the defendant for the sum of $5,950, money of the republic of Mexico, or its value, at the date of its loss, in lawful money of the United States, to wit, the sum of $2,558.50, in lawful money of the United States; and for such other and further relief as may be brought in the premises, and for costs of this action.

A. B., Attorney for plaintiff.

[Verification.]

§ 324. ANSWERS.

FORM No. 671-Denial of receipt of moneys.

[Title of court and cause.]

The defendant answers to the plaintiff's complaint [or petition]: Denies that he ever received the money mentioned in the complaint [or petition], or any part thereof.

[Etc.]

FORM No. 672-Defense of accounting and payment.

[Title of court and cause.]

he

"

"

The defendant answers to the plaintiff's complaint [or petition] : Alleges that on the day of 19 at accounted with and paid over to the plaintiff all moneys received by him, defendant, up to that day.

[Etc.]

§ 325. ANNOTATIONS.-Money had and received.-Involuntary trusts.

1, 2. Allegation that moneys were received "to or for the use of plaintiff' essential.

1. Allegation that moneys were received "to or for the use of plaintiff" essential.-A count in a complaint alleging, "that within the two years next last past, and at the city and county of San Francisco, state of California, the defendants became indebted to Fox-Ballantyne Co., in the sum of $55, money had and received by defendants from said Fox-Ballantyne Co., at the special instance and request of defendants," is an insufficient statement of a cause of action, there being no allegation, either directly or by implication, that the money was had or received for the use of plaintiff or his assignors. A general demurrer thereto is properly sustained: Fox v. Monahan, 8 Cal. App. 707, 97 Pac. 765.

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3. When action for money had will lie.

4. Privity of contract not necessary.

5. Common-law count for money had and received not sufficient averment for cause of action for fraud.

6. Moneys held by an agent.

7-10. Moneys paid by mistake.-Promise not necessary to allege.

11. Pleading in action for usury.

12. Common-law remedy of offset or counterclaim.

2. The approved and usual form for the count of money had and received is very simple, consisting merely in stating that the defendant is indebted to the

plaintiff in a certain sum "for money had and received by the defendant to and for the use of the plaintiff": Fox v. Monahan, 8 Cal. App. 707, 97 Pac. 765.

3. When action for money had will lie. -The action for money had and received will lie wherever it appears that defendant has received money which in equity and good conscience he should pay to the plaintiff. Under this principle, a complaint which alleges that the money was plaintiff's assignor's, as his commission from the sale of certain real property, and was collected by defendants and appropriated to their own use, is good as against a general demurrer: Fox v. Monahan, 8 Cal. App. 707, 97 Pac. 765.

4. No privity of contract is necessary to sustain the action for money had and received; for the law, under circumstances where money is held by a person which in equity and good conscience

belongs and should be paid to another, implies a promise to pay. It is of no importance how the money came into the holder's hands if the other party is legally entitled to it: Stoakes v. Larson, 108 Minn. 234, 121 N. W. 1112, 1114.

5. Common-law count for money had and received not sufficient averment for cause of action for fraud.-Where the complaint in an 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, and where the answer is a general denial, it has been held, in a recently well-considered case in Montana, that testimony designed to show fraud is not admissible under the pleadings, for the reason that the facts relied upon to show fraud were not set forth in the complaint. The court says that "a complaint fashioned after a common-law count, may or may not state facts sufficient to constitute a cause of action under the code. In this state there is no action for money had and received as such; and there is no common law in any case where the law is not declared by the code (§ 860, Rev. Codes). The common counts have been superseded by our system of code pleading. A complaint, under this latter system, must contain a statement of the facts constituting a cause of action in ordinary and concise language (6532, Rev. Codes). If the phraseology of any common count is to adequate, in any particular case, bring the pleader within the code rule, then his pleading is sufficient; otherwise, it is not. When a pleader elects to employ the language of a common count, he subjects himself to the rules governing the construction and sufficiency of complaints under the codes; that is to say, if a common count will in fact state his cause of action in ordinary and concise language, it is good. If it will not, it is bad": Truro v. Passmore, 38 Mont. 544, 100 Pac. 966, 968.

6. Moneys held by an agent.-Under circumstances where an agent becomes possessed of moneys, a portion of which belongs to him and a portion to his principal, an action for money had and received will lie, on the principle that one man shall not withhold that which rightfully belongs to another: Jenkins v. Clopton (Mo. App.), 121 S. W. 759, 765;

Crigler v. Duncan, 121 Mo. App. 381, 392, 99 S. W. 61; Winningham v. Fancher, 52 Mo. App. 458; Mansur v. Botts, 80 Mo. 651; Cary v. Curtis, 3 How. (44 U. S.) 236, 11 L. ed. 576; Chesapeake etc. Canal Co. v. Knapp, 9 Pet. (34 U. S.) 541, 564, 565, 9 L. ed. 222.

7. The right to recover money paid by mistake is in no manner dependent upon an express admission by the party receiving it, or on his agreement to refund: Fidelity Savings Bank v. Reeder, 142 Iowa 373, 120 N. W. 1029, 1030, citing Boyer v. Pack, 2 Denio (N. Y.) 107; Baltimore etc. R. Co. v. Faunce, 6 Gill. (Md.) 68, 46 Am. Dec. 655; Worley v. Moore, 97 Ind. 15; Clark v. Sylvester (Me.) 13 Atl. 404; Johnson v. Saum, 123 Iowa 145, 98 N. W. 599; Holmes v. Lucas Co., 53 Iowa 211, 4 N. W. 918; Hoffmann v. Cockrell, 112 Iowa 141, 83 N. W. 898; Iowa State Bank v. Cereal etc. Brokerage Co., 132 Iowa 248, 109 N. W. 719.

8. Promise, when not necessary to allege. An allegation of an express admission by the party receiving money paid by mistake, made after the discovery of the mistake, and accompanied by a promise to correct it, is not necessary; nor is it necessary to allege such promise in a complaint in an action to recover the money so paid: Fidelity Savings Bank v. Reeder, 142 Iowa 373, 120 N. W. 1029, 1030, (construing Iowa code § 3639).

9. Money paid through a mistake of fact may be recovered in an action for that purpose: American Brewing Co. v. St. Louis, 187 Mo. 367, 86 S. W. 129, 2 Am. & Eng. Ann. Cas. 821.

10. The rule that moneys paid through a mistake of fact may be recovered is subject to the qualification that the party paying must make the payment under a bona fide belief that the money is due: American Brewing Co. v. St. Louis, 187 Mo. 367, 86 S. W. 129, 2 Am. & Eng. Ann. Cas. 821.

11. Pleading in action for usury.-A complaint in an action for the recovery of money paid as usury is not required to allege expressly that the usury was knowingly paid and accepted, where the objection is not raised by demurrer, but upon objection to the admission of evidence thereunder. In such case the authorities favor a liberal construction of the pleadings: Waldner v. Bowden State Bank, 13 N. Dak. 604, 102 N. W. 169, 3 Am. & Eng.

Ann. Cas. 847. See Stutsman County
v. Mansfield, 5 Dak. 78, 37 N. W. 304;
Commonwealth etc. Co. v. Dokko, 71
Minn. 533, 74 N. W. 891; Peterson v.
Hopewell, 55 Neb. 670, 76 N. W. 451;
Whitbeck v. Sees, 10 S. Dak. 417, 73
N. W. 915.

12. The common-law remedy of offset or counterclaim for money had and received will not lie to recover usurious interest where the right to recover is given by statute which defines the nature of the action and provides for a penalty: McCarty v. First National Bank

§ 326. Complaints [or petitions]

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(S. Dak.), 121 N. W. 853, 855, (constru-
ing U. S. Rev. Stats. § 5197,) citing
Schuyler Nat. Bank v. Gadsden, 191 U. S.
451, 24 Sup. Ct. 129, 48 L. ed. 258; Has-
eltine v. Central Nat. Bank, 183 U. S.
132, 22 Sup. Ct. 50, 46 L. ed. 118; Dries-
bach v. Wilkesbarre Nat. Bank, 104 U.
S. 52, 26 L. ed. 658; Barnet v. Nat.
Bank, 98 U. S. 555, 25 L. ed. 212; Farm-
ers etc. Bank v. Dering, 91 U. S. 29,
23 L. ed. 196; Walsh v. Mayer, 111 U. S.
28 L. ed. 338:
31, 4 Sup. Ct. 260,
111
Stephens V. Monongahela Bank,
U. S. 197, 4 Sup. Ct. 336, 28 L. ed. 399.

CHAPTER LXXXIX.
Money Lent.

Form No. 673. For money lent.

(Common form.)..

Form No. 674. By assignee of lender against borrower.. $327. Answers

Form No. 675. Denial of loan

Form No. 676. Defense that money was paid in settlement of
an antecedent debt

§ 326. COMPLAINTS [OR PETITIONS].

FORM No. 673-For money lent.

(Common form.)

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[Title of court and cause.]

19

The plaintiff complains of the defendant, and alleges: 1. That on the day of to the defendant, at his request, $ ised to repay, with interest, on demand [or on a day named].

"

"

2. That on the day of 19 the plaintiff duly demanded payment of the same from the defendant, but said sum has not been paid, nor any part thereof.

[Concluding part.]

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the plaintiff lent

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which the defendant prom

FORM No. 674-By assignee of lender against borrower.

[Title of court and cause.]

"

9

The plaintiff complains of the defendant, and alleges: 1. That on the day of 19 at was indebted to one L. M. in the sum of $ money lent by said L. M. to the defendant.

1295

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the defendant

on an account for

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