Lloyd v. Williams

California Court of Appeal Jun 5, 1964 No. Civ. 7187Published

Before: Brown (Gerald)

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Holding. The trial court did not abuse its discretion in denying a motion to amend the complaint shortly before trial, and the plaintiff could not maintain an action for money had and received while retaining benefits under an express contract.

Issues

Did the trial court abuse its discretion in denying the plaintiff's motion to amend the complaint shortly before trial?
Can a plaintiff maintain an action for money had and received based on fraud while retaining benefits under an express contract?
Is evidence of fraud admissible under a common count when it contradicts the specific allegations of the complaint and pretrial order?

Disposition. Affirmed

Quotations verified verbatim against the opinion

“We conclude the trial court did not abuse its discretion in denying the motion to amend.”

“A party cannot retain substantial benefits under an express contract and recover under the theory of an implied contract.”

“Since the plaintiff cannot return the benefits conferred under the express contract the action for money had and received will not lie.”

BROWN (Gerald), J.

Plaintiff Amanda Lloyd appeals from a judgment which denied her recovery of money paid under contract and which allowed defendant John F. Williams recovery on a counterclaim.

The plaintiff entered into a cost-plus contract for the construction of a duplex by the defendant. After the building was accepted the plaintiff filed suit to recover a portion of the money paid pursuant to the contract. In two counts she

[648]

sought money had and received and an accounting on the theory that the defendant had paid less for labor and materials than he claimed.

Fifteen months after the original complaint was filed; four months after the pretrial conference order had been made; and five weeks before trial, the plaintiff moved to amend the complaint by adding three causes of action which alleged that the defendant fraudulently induced her to enter into the contract and that he had failed to fully perform. The motion, which was not supported by points and authorities, was denied February 23, 1962. An identical motion, with points and authorities, was denied March 9, 1962. The case went to trial March 15, 1962. At the conclusion of the plaintiff’s case the motion to amend was reiterated and again denied. The plaintiff was nonsuited and the defendant recovered $544.56 and costs on his counterclaim.

The plaintiff’s first contention is that the trial court erred in refusing to grant her motion to amend the complaint. The first properly presented motion to amend was heard less than one week before trial. No explanation was offered for the delay. It was not offered to cure a technical defect, but instead added facts and substantially changed the theory of the plaintiff’s case.

The Supreme Court said in

Vogel

Thrifty Drug Co.,

43 Cal.2d 184, 188-189 [272 P.2d 1]: “It is a basic rule of pleading in this state that amendments shall be liberally allowed ..., but ‘the question whether the filing of an amended pleading should be allowed at the time of trial is ordinarily committed to the sound discretion of the trial court.’

Lloyd v. Williams

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