Moser v. Pugh-Jenkins Furniture Co.

BUDGE, C. J. The complaint in this action sets forth merely the usual form of common-law count for money had and received without alleging any of the specific facts upon which the claim is predicated. The answer consists of certain denials coupled with a separate answer and affirmative defense wherein it is alleged that the parties entered into a contract for the sale of certain furniture and fixtures located in what is known as the Angus Rooming House, located in Boise, for $4,380. That one thousand dollars was paid- upon the purchase price and the balance was to be paid in instalments, and that this $1,000 was the only money received from respondent. The cause was tried to a jury and a verdict returned in favor of respondent for the amount claimed with interest, and judgment entered thereon. This appeal is from the judgment and from an order denying a motion for a new trial. Many errors are assigned but the decisive question to be determined may be broadly stated as follows: Is a complaint which simply alleges a common-law count for money had and [441] received sufficient to permit the admission of evidence to prove that plaintiff was induced by fraud, deceit and fraudulent representations to part with the money sought to be recovered? The general rule is well settled that where a party seeks to recover on the ground of fraud, the particular facts constituting the fraud must be definitely and positively alleged. (Brown v. Bledsoe, 1 Ida. 746; Abrams v. White, 11 Ida. 497, 83 Pac. 602; Kemmerer v. Pollard, 15 Ida. 34, 96 Pac. 206; Breshears v. Callender, 23 Ida. 348, 131 Pac. 15; Kerns v. Washington Water Power Co., 24 Ida. 525, 135 Pac. 70; Wilson v. Baker Clothing Co., 25 Ida. 378, 137 Pac. 896, 50 L. R. A., N. S., 239.) The right, if any, of respondent to recover is predicated upon fraud which she failed to allege. But it is contended that the above rule has no application to this form of action, and that proof that the money was obtained by fraud is admissible under a simple common-law count for money had and received. Two of the cases relied upon by respondent, while containing some language that seems to bear this construction, are not in point, for in those cases the facts constituting the fraud were set forth in the complaint. (Stout v. Caruthersville Hdw. Co., 131 Mo. App. 520, 110 S. W. 619; Humbird v. Davis, 210 Pa. St. 311, 59 Atl. 1082.) The case of Grannis v. Hooker, 29 Wis. 65, also relied upon by respondent, and which appears to be in point, has been ably criticised by the supreme court of Montana in the case of Truro v. Passmore, 38 Mont. 544, 100 Pac. 966. The California decisions sustaining causes of action set forth by the common-law counts are also criticised in the latter case, wherein it is, pointed out that some of the most able judges of the California court, while feeling bound by- the precedents established in that court, have not hesitated to criticise the reasoning of the precedents. The following language, used by the supreme court of Montana, is particularly in point: “The common counts have been superseded by our system of code pleading. A complaint, under this latter system, must contain a statement of the facts constituting the [442] cause of action in ordinary and concise language. (See. 6532, Rev. Codes, supra.) If the phraseology of any common count is adequate in the particular case to bring the pleader within the code rule, then his pleading is sufficient; otherwise it is not. Where a pleader elects to employ the language of a common count, he subjects himself to the rules governing the construction and sufficiency of complaints under the codes; that is to say, if a common count will in fact state his cause of action in ordinary and concise language, it is good. If it will not, it is bad.” (Truro v. Passmore, supra.) It should be noticed that sec. 6532, Revised Codes of Montana, referred to in the latter case, contains the same requirement as our own Revised Codes, sec'. 4168, namely that the complaint must contain “a statement of the facts constituting the cause of action, in ordinary and concise language.” In the case at bar, from the evidence it appears that the respondent’s right, if any, to recover depends wholly upon proof of fraudulent representations. The particular facts constituting the fraud should have been specifically alleged. A defendant who is to be called upon to meet a cause of action based upon his alleged fraud has a right to know in advance the particular acts and things giving rise to the fraud. A common count for money had and received is silent as to every such fact, and cannot operate to put a defendant upon notice as to what he is expected to meet, and is not sufficient to state a cause of action based wholly upon the defendant’s alleged fraud. The judgment is reversed and a new trial granted, with permission to respondent to amend her complaint. Costs awarded to -appellant. Morgan and Rice, JJ., concur.