Fox v. Monahan
Before: Hall
Synopsis
Money Had and Received—Pleading—Approved Form op Count.— The approved and usual form of count for money had and received consists in stating that the defendant is indebted to the plaintiff, or his assignor, in a certain sum “for money had and received to the use of the plaintiff,” or his assignor.
Id.—Equitable Nature op Action—Money Earned and Misappropriated — General Demurrer to Complaint.— The action for money had and received will lie wherever it appears that the defendant has received money which in equity and good conscience he should pay to the plaintiff; and a complaint in such action, though departing from the usual form, which alleges that the money received was earned by plaintiff’s assignors as their share of commissions from the sale of real estate, and was collected by the defendants and appropriated to their own use, states a sufficient cause of action for money had and received by the defendants to the use of plaintiff’s assignors, as against a general demurrer.
Id.—Insufficient Second Count.—A second count in the complaint merely alleging that ‘‘defendants became indebted” to plaintiff’s assignors in a certain sum, “money had and received by said defendants, at the special instance and request of defendants,” without stating any facts showing directly or inferentially that the money was had or received for their use or benefit, states no cause of action, and a general demurrer thereto should have been sustained.
Id.—Presumption from Payment of Money—Money Due to Payee—• Use of Payor not Presumed.—The statement of the mere fact that money was paid to the defendants by plaintiff’s assignors raises no presumption or implication that it was so paid for the use of the payor; but, on the contrary, where money is paid by one person to another, the presumption is that it was due to the latter. Id.—General Averment of Indebtedness—Conclusion of Law.—The general allegation of indebtedness states a mere conclusion of law, and is insufficient, in the absence of a statement of facts supporting such indebtedness.
HALL, J.
This is an appeal upon the judgment-roll from a judgment for plaintiff and against defendants in the sum of $346.65.
The complaint is in two counts, each of which was attacked by defendants by a general demurrer, which was by the court overruled as to each count, and it is this action of the court which is now chiefly relied on for a reversal of the judgment.
The first count, if good at all, sets forth a, cause of action for money had and received by defendants to and for the use of plaintiff’s assignors. The point intended to be raised by the demurrer is that it is not alleged that defendant had or
[709]
received or collected the money sued for
for the use or benefit of plaintiff’s assignors.
In this respect it must be confessed that plaintiff’s complaint is not a model of good pleading, and is a departure from the usual and approved form for a count for money had and received. The approved and usual form for this count is very simple, consisting simply 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 plaintiff.” (1 Chitty’s Pleading, 16th Am. ed., 362.)
In the first count of plaintiff’s complaint it is not expressly alleged that the money was had or received by defendants to or for the use of plaintiff’s assignors, but it is alleged that the money was earned by plaintiff’s assignors as their share of commissions from the sale of certain real property, and was collected by defendants and appropriated to their own use. It thus appears that defendants collected money belonging to plaintiff’s assignors. Having collected money belonging to plaintiff’s assignors, equity and good conscience required that they should pay it over to the parties entitled thereto. This they refused to do. 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.
The count now under discussion is not in a form that is to be commended; but we think that in the face of an attack by general demurrer only it sufficiently appeared that the money sued for had been received for the use of plaintiff’s assignor.
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