McDonald v. Pacific Debenture Co.

SHAW, J.

These two cases present appeals from a judgment and from an order denying the defendant’s motion for a new trial in the same case. No. 3166 presents the appeal from the judgment, and No. 3314 an appeal from the order denying the motion for a new trial.

The complaint sets forth a cause of action in twenty-nine separate counts for money had and received. The plaintiff sues in the firstrcount for money had and received on his own account by the defendant for his use, and in the subsequent counts upon similar demands by others, assignors of the plaintiff.

It is admitted by the respondent that, by reason of certain clerical errors in the computation of the amount, judgment was rendered for fifty-two dollars in excess of the amount actually due to the plaintiff, and the judgment must be modified to that extent.

The respondent claims that the answer admits all of the allegations of the complaint, except the allegations of the assignment by the respective original claimants to the plaintiff in the action. The allegations in respect to the counts of the complaint and the denials thereof in the answer are all in the same form, and can best be shown by setting forth in full the portions thereof relating to the second count of the complaint. That portion of the complaint was as follows: “2. That said defendant was indebted on the 2d day of July,

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1901, to Withold Friedman in the sum of $218 lawful money of the United States, for money had and received by said defendants for the use and benefit of said Withold Friedman.’’

The remaining portion of this count consisted of an allegation of the assignment and a statement that the amount was unpaid. The answer as to this part of the second count of the complaint is as follows: “Denies that on the 2d day of July, 1901, or upon any day, or at all, it was indebted to Withold Friedman, in the sum of $218, or in any sum, or at all, for money had and received for the use and benefit of the said Withold Friedman, or for, or upon, any account, or at all.”

Although it is not strictly in compliance with the code provision that the complaint shall consist of a statement of the facts constituting the cause of action, yet it has been settled by repeated decisions that a complaint for money had and received in the language contained in the complaint in this action is sufficient. We are of the opinion that where this form of complaint is used by the plaintiff the defendant is not required to deny the allegations in any more specific language that that in which they are set forth in the complaint. The particular criticism of the respondent is, that the answer does not deny that the defendant did in fact have or receive money for the use of Withold Friedman. The same criticism might be extended to the complaint in the form used by the respondent. It does not directly allege that the defendant had actually received money for the use of Wit-hold Friedman. We can perceive no good reason for holding the defendant to a more strict rule of pleading than that allowed in favor of plaintiff. The cases cited by the respondent upon this proposition do not go so far as we are asked to go in this case, to hold the answer insufficient. Moreover, it appears from the record that the answers were treated in the court below, both by the court and by all the parties, as sufficient to raise an issue upon all the allegations in the complaint.