23 N.Y.S. 598 | New York Court of Common Pleas | 1893
The facts in evidence and conceded by defendant conclusively show that defendant’s policy of insurance, which was issued to plaintiff upon the life of her father, was rescinded by
It is well settled in principle and by authority that where there has been a total failure of consideration, or where a contract has been abandoned or has been rescinded, an action will lie for money had and received to recover back any money paid by either of the contracting parties to the other in furtherance of the contract. 2 Whart. Cont. § 742; Raymond v. Bearnard, 12 Johns. 275; Canal Co. v. Knapp, 9 Pet. 540, 566; Lindsley v. Ferguson, 49 N. Y. 625; 3 Amer. & Eng. Enc. Law, p. 889. So, also, it is settled by abundant authority, and no longer open to debate, that the use of the common count in assumpsit is ' a sufficient compliance with the requirement of the Code of Civil Procedure that the complaint must state the facts which constitute the cause of action. Allen v. Patterson, 7 N. Y. 476; Farron v. Sherwood, 17 N. Y. 227, 229; Hosley v. Black, 28 N. Y. 438; Hurst v. Litchfield, 39 N. Y. 377; Bank v. Wheelock, 45 N. Y. Super. Ct. 205; Evans v. Harris, 19 Barb. 416; Cudlipp v. Whipple, 4 Duer, 610; Bates v. Cobb, 5 Bosw. 29; Adams v. Holley, 12 How. Pr. 326; Betts v. Bache, 14 Abb. Pr. 279; Sloman v. Schmidt, 8 Abb. Pr. 5; Goelth v. White, 35 Barb. 76; Raymond v. Hanford, 6 Thomp. & C. 312; Fells v. Vestvali, *41 N. Y. 152; Pom. Rem. & Rem. Rights, § 542; 4 Wait, Act. & Def. p. 246; 7 Lawson, Rights, Rem. & Pr. p. 5438, and note 1, p. 5439; 1 Boone,