100 P. 966 | Mont. | 1909
delivered the opinion of the court.
The complaint in this action alleges that on the twenty-fourth day of April, 1907, the defendants received the sum of $3,000 from the plaintiffs “to and for the use of the plaintiffs,” which sum, after demand, the defendants have refused to repay. The answer is a general denial. At the trial the plaintiffs introduced in evidence a written contract between the parties, which recites that on the twenty-fourth day of April, 1907, defendants agreed to sell to plaintiffs a one-third interest in a certain option agreement with third persons, which on the day before, April 23, had been extended to December 1, 1907, and also a one-third interest in the Susie quartz lode mining claim, for a
The first condition is that the court erred in excluding evidence of fraud on the part of the defendants. This assignment raises the main question in the ease. Many cases are cited to the effect that fraud may be shown under a count for money had and received, without further allegations. The great majority of the cases are from common-law jurisdictions, and would, perhaps, be in point if that system of pleading obtained in this state. Some of the cases cited, however, seem to be squarely applicable to this case. The supreme court of Wisconsin, in Grannis v. Hooker, 29 Wis. 65, held that a complaint containing what, under the former system of pleading, would be called a count for money had and received stated a good cause of action under the Code system of pleading, and that in support of such complaint the plaintiff was entitled to introduce evidence that the defendant procured the money sued for by means of fraud in an oil land transaction. It was there said: “It is claimed by the defendant that all the facts with reference to the alleged fraud should have been distinctly stated in the complaint, otherwise the plaintiff is not entitled to prove them. On the other hand, it is claimed that all it is necessary the complaint should contain is substantially an allegation that the defendant has received a certain amount of money to the use of the plaintiff, as in the old form of a declaration in indebitatus assumpsit. We are inclined to sanction this latter view, and to hold that the facts which, in the judgment of the law, create the indebtedness or liability need not be set forth in the complaint. ’ ’
Another case cited by appellants is Cory v. Board etc., 47 N. J. L. 181. In that case it appeared that the defendant, a
The New Jersey ease is authority for the contention that proof of fraud may be introduced to sustain an action for
Mr. Phillips, in his work on Code Pleading (section 182), says: “Facts stated to show the capacity of the parties, when such qualifying facts are called for, and jurisdictional facts, when these are necessary, constitute no part of the cause of action. • In addition to, and independently of, such facts, the
In our judgment the Code provision (section 6532, Revised Codes, supra) was designed to eliminate from pleadings those features which excited the admiration of Lord Mansfield, as expressed in the Moses Case, and to substitute therefor a new system, to comply with the express mandate of which the plaintiff must state the facts upon which he relies for a recovery in such a way as that the defendant may know exactly what he has to meet. We have no hesitancy in saying that the complaint in this case does not state facts sufficient to constitute the cause of action claimed and sought to be proven by the plaintiffs at the trial. If there are any Montana cases militating against the views herein expressed, they have not been called to our attention, and an examination of Buck’s, Bishop’s, and Mape’s Digests has not discovered them. At any rate, as the question is one of practice, it should be correctly settled. We do not mean to say that the plaintiffs have no cause of action against'
The judgment and order are therefore affirmed.
Affirmed,