Inda v. McInnis

By the Court', Belknap, J.: Appeal from an order sustaining a demurrer and from the judgment entered thereupon. The complaint, in substance, alleged: That defendant, during the times mentioned, was the sheriff of Washoe county. That plaintiff, during the same period, was the owner of 6,000 head of sheep pasturing in Washoe county. That defendant demanded the sum of $300 of plaintiff, as a license tax, as such owner. That plaintiff notified defendant that he was the owner of 5,396 acres of land in the State of Nevada, notwithstanding which defendant threatened to enforce his demand by process of law, unless plaintiff paid the license demanded; whereupon plaintiff, in order to avoid the detention of his sheep, agreed to and did deposit with defendant the sum of $300, to be retained by him according to the terms of the following receipt: “Reno, Nevada, April 11, 1899. Received of A. Inda three hundred dollars ($300) on deposit, until it is settled that said A. Inda is not liable for a license on sheep, and, in case he is entitled to run his sheep in Washoe county, the money is to be returned to him. W. H. McInnis, Sheriff of Washoe County.” That defendant retains the money for a license upon the sheep mentioned, and refuses to return any portion of it to plaintiff. That a license tax upon plaintiff on account of herding, grazing, pasturing, or owning sheep is without authority of law and void. Defendant demurred to the complaint, on the grounds that it did not state facts sufficient to constitute a cause of action, and that the court had no jurisdiction thereof. *241 Plaintiff should have averred in his complaint that the contingency mentioned in the receipt from the defendant had occurred. This is in the nature of a condition precedent, and must be averred in an action upon the contract. Counsel for appellant admit that this is the general rule, but claim that it is not applicable in this case because of the averments of ownership in plaintiff of 5,396 acres of land in the state, and that the license tax on sheep is illegal. But the obligation of defendant is to return the money when “ it is settled that plaintiff is not liable for a license tax on sheep.” Defendant is liable only upon the terms of his contract, and, if the contingency has not transpired, the action cannot be, maintained. To hold otherwise would be to substitute an obligation for the defendant different from that which he has himself made. The demand, exclusive of interest, does not exceed $300, and prima facie the justice court had jurisdiction; but it is claimed the legality of a tax is involved, and for this reason that the case was properly brought in the district court. The receipt upon which the action was brought states that the money was deposited “ until it is settled ” that said Inda is not liable for a license on sheep, and, in case he is entitled to run his sheep in W ashoe county, the money is to be returned to him. We are not advised by the complaint whether or not proceedings have been instituted for the purpose of settling these differences, but they should be settled in that action, and not in this one. The complaint in this case attempts to state a cause of action for money had and received for plaintiff’s use, and is not aided by immaterial averments as to the illegality of a tax. The order and judgment are affirmed.