Carter v. Kelley

PER CURIAM. This is an action for money had and received. Plaintiff was awarded judgment upon a verdict in his favor [146] and defendant appeals. The only assignment challenges the sufficiency of the complaint. This issue was raised for the first time by this appeal. The plaintiff employed the use of the common count to allege his cause of action. The cause of action arose out of a written contract between the parties, a copy of which was attached to and made a part of the complaint. The defendant does not contend that plaintiff could not plead his case by use of the common count. Such a pleading is now well established in this state. Hogan v. Aluminum Lock, Shingle Corp., 214 Or 218, 329 P2d 271. Defendant does contend that the recitation of the contract, as a part of the complaint, conclusively revealed that defendant did not hold money for the use and benefit of plaintiff; that for this reason no cause of action was stated. We do not agree with this contention. The complaint contained allegations which, if taken to be true, entitled plaintiff to the verdict awarded by the jury. The judgment is affirmed. William, E. Dougherty, Portland, for the petition. Before Lusk, Presiding Justice, and Warner, Sloan and O’Connell, Justices.