Arch Rib-Summerbell Steel Fabricators v. Lubliner

SHINN, P. J. Ben Jaffray appeals from a judgment in the amount of $7,500.65 (including interest and costs) upon the third cause of action of plaintiff’s complaint, which charged Jaffray with having received $6,428.20 for the use and benefit of plaintiff.

The complaint was in three counts; the first cause of action was against Jaffray and one Lubliner, charging them with having entered into a conspiracy pursuant to which they took scrap metal and other steel belonging to plaintiff of the value of $17,250, sold it and divided the proceeds. Included in this cause of action were allegations that pursuant to the conspiracy Lubliner paid over to Jaffray $4,600 of the proceeds of the sale and that Jaffray kept the money. It was alleged that defendants should be credited upon the $17,250 with the sum of $4,600 which Jaffray was alleged to have received, leaving defendants indebted to plaintiff on the first cause of action in the amount of $12,650. The second cause of action was against both defendants for $19,078 for metal sold and delivered to them. The third cause of action incorporated by reference paragraphs I to IV, inclusive, of the first cause of action and alleged that Jaffray had received $6,428.20 for the use and benefit of plaintiff and had paid over to plaintiff no part thereof. The complaint prayed judgment against both defendants on the first and second causes of action in the sum of $19,078 and upon the third cause of action judgment against Jaffray alone in the sum of $6,428.20, interest and costs of suit. Findings and judgment were in favor of both defendants on the first and second causes of action and against Jaffray alone for $6,428.20, interest and costs, on the third cause of action.

The record on appeal consists of the judgment roll and a partial transcript of the oral proceedings had upon motions of defendants for judgments of nonsuit and dismissal. None of the evidence is brought up.

The sole contention on the appeal is that inasmuch as findings were in favor of defendants upon the first cause of action there could be no recovery on the third cause of action. The rule invoked by Jaffray is that if the facts of a transaction are specifically alleged in one cause of action, and they are insufficient to state a cause of action, an additional common count, praying judgment in the same amount, and obviously based upon the facts specifically alleged, will not be deemed the statement of a good cause of action. If the cause of action which contains the specific statement of facts [595]