Town of Fifield v. Sweeney

Oetou, J. This is an appeal from an order overruling a demurrer to the complaint, which stated, as causes, (1) that the complaint “ does not state facts sufficient to constitute a cause of action,” and (2) “ that several causes of action Rre improperly united therein.” There are, substantially, three counts' in the complaint. The first is the overpayment of $99 upon a false and fraudulent account for the work of the defendant’s teams upon the highways of the town; the second is the overpayment of $397.50 upon a false and fraudulent account for the work of the defendant’s employees upon said highways; and the third is these two sums aggregated, charged to have been paid by the town by mistake. It is too clear for question that a good cause of action is stated in the complaint. It is contended that this last count states a different cause of action from the first two, because it is upon contract for money paid, or had and received, while the others are in tort. There is nothing inconsistent in these counts, because money paid upon false and fraudulent accounts is money paid by the town by a mistake of fact. If the town had known of the fraud, it would not have paid the overcharges. The complaint is for money had and received, and it would have been sufficient if, in short form, it had so alleged, without setting out the facts of fraud and mistake upon which the contract to repay or return the money is implied. [207] The whole complaint goes upon the implied assumpsit to repay the money so had and received, and interest thereon, and no other damage by reason of the fraud or mistake is claimed. The complaint as for money had and received is even better by reason of the statement of the facts by which the assumpsit is implied, and these facts do not change the action into tort. Grannis v. Hooker, 29 Wis. 65. By the Court.— The order of the circuit 'court is affirmed.