Williams v. Brunson

Cole, J. It was practically admitted on the argument, by the counsel for the plaintiff, that the complaint did not| state a cause of action in tort for conversion. But he insisted that the facts set forth showed; a good cause of action for money had and received. It is objected by defendant’s counsel, that no promise will be implied from the facts alleged, and that therefore a cause of action for money had and received is not stated. It seems to us the objection is well taken. We do not suppose a promise will be implied from the mere fact that [421] the defendant received the plaintiff’s money. The- presumption is, that the money was delivered in payment of a debt antecedently due. In Yates v. Shepardson, 39 Wis., 173-180, it was said that checks drawn by the defendant in favor of the plaintiff in different sums, which were paid, furnished no evidence that those sums were loans to the plaintiff. Prima facie they were only evidence of the payment by the defendant of debts due the plaintiff. The same rule applies here. Prima facie the inference from the receipt of the money by the defendant is, that it was a payment of a debt and nothing more. Nor do w'e think the subsequent language, that the defendant “ is now justly indebted to the plaintiff therefor,” is sufficient to overcome that inference or presumption. Those words state merely a conclusion of law arising upon the facts. If the facts show no indebtedness, it will not be implied from that language. In Grannis v. Hooker, 29 Wis., 65, a complaint which alleged in substance that the defendant had received a certain amount of money to the use of the plaintiff, according to the old form of a declaration in indebitatus ass%vnvpsit, was held sufficient. Had this complaint contained a like allegation that the defendant received the money for the use of the plaintiff, a promise to pay would be implied in law. But it contains no such allegation, and nothing of an equivalent import. The code requires the facts constituting the cause of action to be stated. This is in order that the defendant may know the precise nature of plaintiff’s claim, and have an opportunity to answer it. But if a party does not conform to the code, but resorts to the old system in any case, then his pleading must be good when tested by the rules which were applied to that system. It follows from these views that the demurrer to the complaint should have been sustained. The order of the circuit court must therefore be reversed, and the cause remanded for further proceedings according to law. By the Cou/rt. — So ordered.