assigned said indebtedness to the plaintiff, of which assignment the defendant had due notice. 3. That said sum has not been paid, nor any part thereof. [Concluding part.] § 327. ANSWERS. FORM No. 675-Denial of loan. [Title of court and cause.] The defendant answers to the plaintiff's complaint [or petition]: Denies that the plaintiff lent him the money mentioned in the complaint [or petition], or any part thereof. [Ete.] FORM No. 676-Defense that money was paid in settlement of an antecedent debt. [Title of court and cause.] [After introductory part:] Defendant alleges that said sum of $ , alleged in the complaint [or petition] to have been loaned to defendant by the plaintiff, was paid by plaintiff to defendant in the settlement of a debt at the time of said payment owing to defendant from the plaintiff upon an account [or other obligation, specifying]. [Concluding part.] Action to recover moneys loaned, consisting of trust funds and other amounts: For substance of the petition upon which judgment was affirmed for the plaintiff, see Pullis v. Somerville, 218 Mo. 624, 117 S. W. 736, 737. In an action at law to recover moneys alleged to have been collected by the defendant for the account of the plaintiff, it is not necessary to allege that the money loaned was in fact the money of the defendant, or that the cashier of the defendant was merely a nominal party whose name was made use of as a means or excuse for an attempt to exact a so-called commission. These questions are matters of evidence which the pleader is neither required nor permitted to plead: Leasure v. Bole, 142 Iowa 284, 120 N. W. 643, 644. CHAPTER XC. Money Paid for the Benefit of Another, and on Implied Contracts. § 328. Complaints [or petitions] Form No. 677. Money paid to third person upon defendant's promise to repay Form No. 678. To recover money overpaid by mistake....... .... Page 1296 1296 1296 1297 Form No. 680. By landlord against tenant, for repayment of Form No. 681. By endorser who has paid part of note.. 1298 the same .... 1299 Form No. 683. For repayment of money after judgment re versed . 1299 ... § 328. COMPLAINTS [OR PETITIONS]. FORM No. 677-Money paid to third person upon defendant's promise to repay. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: at the defendant's request, paid to one L. M. $ , the plaintiff, 2. That in consideration thereof the defendant promised to repay the same to the plaintiff. payment of the same from the defendant, but said amount has not been repaid, nor any part thereof. [Concluding part.] FORM No. 678-To recover money overpaid by mistake. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: the defendant rendered to the plaintiff an account of mutual dealings theretofore had between them, in which said account an indebtedness of the plaintiff to the defendant in the sum of $ was set forth. 2. That the plaintiff, believing said account to be correctly stated and free from errors, then paid the said amount to the defendant. by 3. That in fact said account was not correctly stated, but, on the contrary, it overcharged the plaintiff with the sum of $ [setting out the error]. 4. [Same as paragraph 3, form No. 677.] [Concluding part.] FORM No. 679-By bank, to recover attorney's fees and expenses incurred against a party who fraudulently obtained a draft. (In Bank v. Williams, 62 Kan. 431; 63 Pac. 744.) [Title of court and cause.] [After introductory part:] 1. That defendant, for the purpose of wronging, cheating, and defrauding said bank, made and delivered to it a check drawn on the Citizens' Bank of in the amount of $ and bought of and received from plaintiff a draft on New York for said sum, payable to his own order; that, to carry out his fraudulent purpose, defendant represented that he had on deposit in the Citizens' Bank a sum equal to the amount of the check. 2. That said check was worthless; that on discovering this fact plaintiff, by telegraph, stopped payment on the New York draft; that defendant immediately left the state, and thereafter procured said draft to be cashed at by M. & Sons, at that place; that M. & Sons were innocent purchasers of said draft, and that plaintiff was liable thereon to M. & Sons for the amount of said draft; that in order to protect itself against loss it became necessary for plaintiff to counsel and advise with attorneys, and employ a lawyer to go to and procure a settlement of said draft by defendant with M. & Sons, by returning to them, said M. & Sons, said money paid to him, said by M. & Sons, on said draft, which was finally done; that in procuring the settlement of said draft to the extent aforesaid, and repayment of the money to M. & Sons, plaintiff was put to large expense, to wit, for telegraphing, attorney's fees, and other expenses, in all the sum of $ ; that all of said costs and expenses were caused by and through the wrongful, fraudulent, and felonious acts of the defendant in giving said worthless check and representing the same to be valid and good, and said amount is the fair and reasonable value thereof; that defendant has now in his possession said original draft drawn on the National Bank of North America, and refuses to deliver the same to plaintiff. Wherefore, plaintiff prays that said draft be canceled and surrendered to plaintiff, and for $ damages [etc.]. FORM No. 680-By landlord against tenant, for repayment of tax. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: and further the defendant entered into an agreement, by which the defendant hired of the plaintiff a house in the village of agreed [etc., reciting stipulation to pay tax]. 2. That there was duly levied and assessed upon the said premises for the year 19 and while the covenants of the aforesaid agreement were in full force, and the defendant was in possession of the premises by virtue thereof, a tax of $ which the defendant neglected to pay. 3. That by reason thereof the plaintiff was, on the per cent, amounting in the whole to 4. That said sum has not been repaid, nor any part thereof. [Concluding part.] FORM No. 681-By endorser who has paid part of note. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: for value received, made and delivered to the plaintiff his promissory note for $ said date. payable to the plaintiff's order in days after 2. That before the maturity of said note the plaintiff endorsed and negotiated the same for value. 3. That at maturity the said note was duly presented to the defendant for payment [or allege excuse for non-presentment], but was not paid, of all of which the plaintiff had due notice, and was on the 19 compelled to pay, and did pay, to one O. P., day of 4. That said sum has not been repaid nor any part thereof. [Concluding part.] FORM No. 682-By maker of accommodation note who has paid the same. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: made and delivered to the defendant his promissory note, in the sum 2. That the plaintiff never received any consideration for said note, but the same was an accommodation note, given to the defendant at his request, and on his promise to pay the same at maturity. 3. That as the plaintiff is informed and believes, and therefore alleges, the defendant thereafter, and before its maturity, negotiated said note for value. 4. That the defendant did not pay said note at maturity, in consequence whereof the plaintiff was compelled to and did, on the day of in satisfaction thereof. 5. That said sum has not been repaid, nor any part thereof." [Concluding part.] 19 , pay the sum of $ FORM No. 683-For repayment of money after judgment reversed. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. That on the day of , 19, judgment was duly given, court of the made, and rendered against this plaintiff in the county of in an action wherein the defendant was plaintiff, 19 to pay, and did pay, to the defendant $ the plaintiff was compelled in satisfaction of the ment of said court [or other appellate court], duly given and made, the said first-mentioned judgment was duly reversed. 4. [Same as paragraph 3, form No. 677.] [Concluding part.] |
