Minor v. Baldridge
Before: Temple
Synopsis
Money Had and Received—Pleading—Common Counts—Money Obtained by False Representations.—The common counts in assumpsit may be used in this state, and in the absence of a special demurrer, the common counts for money had and received will lie to recover money obtained by false and fraudulent representations, and the proof may be made at the trial that it was so obtained, without any special pleading of the facts constituting the fraud; though such pleading must fail before a special demurrer.
Id.—Conditional Contract—Subscription to Railroad Stock—Misrepresentations .—An action for money had and received will lie to recover back money paid under a conditional contract for subscription to railroad stock, on condition that a railroad should be constructed up the river, on which plaintiff’s sawmill was situated, and that the railroad company would buy lumber from such mill, where it appears that the money was obtained under a false representation that the condition had been complied with as to the location of the railroad, and that the corporation would at once order a large amount of lumber.
Id.—Basis of Action — Rescission not Required.— Such action is not based upon the breach of contract, but is based upon the theory that the money was obtained under a false representation that it had become due under the contract by the performance of' the condition precedent by the railroad company; and it is not necessary to effect a rescission of the contract in order to maintain the action.
Id.— Right of Corporation to Perform.—The contract .not being rescinded, and being still in force, it may yet be performed by the corporation, which may become entitled to demand and enforce payment from plaintiff.
Id.—Liability of Misrepresenting Agent.—The agent of the railroad company who made the misrepresentations, cannot be held liable in an action for money had and received, if no money was in fact received by him, though he might be held justly liable with the principal in an action of tort.
TEMPLE, J. This action is for money had and received. The only facts alleged in the complaint are that on the second day of November, 1895, defendants were indebted to plaintiff in the sum of one thousand dollars for money had and received by them for the use of plaintiff, no part of which has been paid.
The defendants did not demur, and their answer consists only of a general denial.
At the trial the plaintiff introduced evidence which tended to prove that plaintiff and the corporation defendant entered into an agreement, in writing, by the terms of which plaintiff agreed to pay to the corporation twenty thousand dollars, in six installments, all dependent as to the time of payment upon the progress of the work in the construction of a railroad which the corporation was proposing to build.
The first installment was to be paid as follows: “Five per cent of said amount on call and after the terminal is secured on Humboldt Bay.”
The written contract was signed only by the plaintiff, but there was an indorsement upon it as follows:
“This is secured on condition that the California, Oregon, and Idaho Railway Company build up Mad river and take material at market price for use of construction in said railroad for all we can use.
“CALIFORNIA, OREGON, AND IDAHO RAILWAY CO.
“CYRUS BALDRIDGE.”
All this evidence was received subject to the objection' on the part of defendants that it was not relevant to any issue made in the pleadings.
Plaintiff owned a sawmill near Mad river, and the agreement on the part of the corporation was understood to mean that the corporation would buy lumber from plaintiff, and this, he contends, was the consideration for his contract.
Some time after the contract had been signed Baldridge, acting for the corporation, represented to plaintiff that a terminal had been secured on Humboldt Bay, and therefore the first installment was due. Baldridge also promised plaintiff that if he would make the payment the corporation would at once order from him a large amount of lumber.
Believing these representations, and trusting in the promise, [189]
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