12 Utah 63 | Utah | 1895
Lead Opinion
This is an action brought by respondent against appellant to recover $1,218.76, which, it is alleged, was received by appellant from respondent and 21 other persons, who have assigned their claims to him, in excess of the necessary charges and expenses of obtaining deeds for some 40-lots of land situated in a boulevard, 12 rods in width, which surrounded the town of Bountiful, in Davis county, Utah territory. The amended complaint, on which the action was tried, sets forth that on or about the 22d day of May, 1891, defendant represented to plaintiff and others that he was the agent of the probate court of Davis county for the collection of fees and expenses for procuring deeds to-certain lots in Bountiful town site, and that the amount required was $42 per lot; that plaintiff was the owner, and entitled to deeds for, four of said lots, and paid defendant $168 to procure deeds for the same; that defendant. paid the probate court $20, and returned to plaintiff $18, and retains $120, which he refuses, after demand, to return to plaintiff. Twenty-one other similar causes of action are stated in the complaint, of persons claiming other lots, who, it is alleged) have assigned to plaintiff. Appellant, in his answer, denies that he represented that he was the agent of the probate court; that plaintiff, or any of his assignors, were owners of, or entitled to deeds of, the lots ‘they claimed; that he withholds any money belonging to
On the trial in the court below the judge gave, among other charges/ the following: “ (9) You are further instructed .that there was no law in force, at the time of the giving of the deeds to plaintiff and his assignors, authorizing the probate judge to issue deeds under the town-site act, and if such deeds were given at that time they were given without authority of law. This is in reference to his authority as probate judge. There is a law by which the county court might agree or take steps to vacate a street, and they might appoint him as a committee, and in that way their agent to attend to such matter for them, as a county court; but the probate judge, as such, without such authority being delegated by the county court, could not so act." Appellant, among other things, alleges error in giving such charge, and claims in this court that the complaint does not state facts sufficient to-constitute a cause of action, and that the same is not
The other objection is to the sufficiency of the complaint. The record is silent as to whether or not this point was raised in the court below, but it is a point that is never waived in any case, and may be taken for the first time in this court. On an examination it is difficult to apprehend on just what theory the pleader drew this complaint. It does not state a cause of action in fraud, for it contains no allegation of any fraudulent acts on the part of the defendant, nor that there was any false representations, menace, duress, or undue influence made or used to induce plaintiff or his assignors to .enter into the contract with defendant, or to pay him' money. There is an allegation that the defendant represented that he was agent of the probate court to do certain acts in the premises, but no allegations that said representation was false, or that plaintiff relied thereon, or that by reason thereof he was induced to enter into the contract with, or part with his money to, defendant, or was otherwise misled to his injury, nor even that plaintiff made promises which he did not perform. Neither does the complaint set forth facts showing a breach of contract by defendant, with resultant
It seems clear that the allegations of the complaint fail to state a cause of action for money had and received. A pleader is presumed to state his case as strongly as the facts will permit, and his complaint must be construed strongly against him. No intendments or presumptions can be indulged to help out a defective pleading. We are of the opinion that this complaint does not ' state facts sufficient to constitute a cause of action, and that it is not sufficient to support a judgment. From the record it
As a decision of these points disposes of the case, it is not necessary to consider the sundry other allegations of error made by appellant. The judgment is reversed, and the cause remanded to the court below, with directions to enter judgment in favor of appellant, with costs.
Concurrence Opinion
(concurring):
I am not satisfied that the instruction complained of was prejudicial error, but I agree with the views announced in the opinion upon the question of the sufficiency of the complaint, and therefore concur in the judgment.