Stewart v. Balderston

10 Kan. 131

• Court: Supreme Court of Kansas
• Decided: July 15, 1872
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

This action was brought in the district court by Balderston and Keplinger,' as plaintiffs against Stewart and Emmert, as defendants. The plaintiffs below allege in their petition that the defendants were register and receiver of the Humboldt land office; that they illegally received $4,125 in various sums as fees from 670 different persons who purchased land at said land office, and that the said 670 persons have severally assigned their respective claims for said illegal fees to said plaintiffs, who now aslc judgment in favor of themselves and against the said defendants for the whole amount of said claims. The petition contains, first, the title; second, a general heading, (which general heading is drawn more particularly for the first intended cause of action, but it is also drawn with the intention that it shall apply to all the supposed causes of action;) third, 670 separate paragraphs or sections numbered consecutive from 1 to 670; fourth, a general prayer for judgment for $4,125 and costs. The most of the facts stated in the petition are contained in the said general heading. Two different motions were made in writing by the defendants below to require the plaintiffs to make their petition more definite and certain, and to require them to separately state and number their several supposed causes of action. These motions were severally overruled by the court, and the rulings thereon were duly excepted to. Three different demurrers to the petition were then successively filed, containing between them the first, second, fourth, fifth and sixth statutory grounds for demurrer. (Civil code, § 89.) Those demurrers were also severally overruled by the court below and the rulings thereon were also duly excepted to. The defendants then brought the case to this court on petition in error, and now ask to have the judgment of the district court reversed because of said rulings.

... .. AcHonbynssisnee' The first question arising in the case is, whether a claim for money, tortiously obtained from the claimant, can be assigned to a third person so as to give the assignee a right to recover the same in his own name. We think it can. Butler v. N. Y. & E. Rld., 22 Barb., 110, 112; Foy v. Boston Rld., 24 Barb., 382; Hall v. Robinson, 2 N. Y., 293; Hoyt v. Thompson, 5 N. Y., 347; McKee v. Judd, 2 N. Y., 622, 625; Zabriski v. Smith, 13 N. Y., 322, 332; Byxby v. Wood, 24 N. Y., 607; Hall v. Cin., Ham. and Dayton Rld., 1 Disney, 58; Grant v. Ludlow, 8 Ohio St., 1, 37; Moore v. Massini, 32 Cal., 590; Jones v. Vanzant, 4 McLean, 600; North v. Turner, 9 S. & R. 241, 248, et seq.; Comegys v. Vasse, 1 Peters, 193, 213; 2 Story Eq. Juris., § 1040. The taking of, a man’s money tortiously, as is charged in this case, is such a tort as affects and injures his personal estate by lessening the same; and at the same time it increases the value of the estate of the person who receives the money. At common law the party injured could in such a case waive the tort and sue as upon an implied contract. He could sue in assumpsit for money had and received. (1 Chitty Pl., 68.) In such a case the plaintiff alleged an indebtedness on the part of the defendant for the money had and received, and also a promise and undertaking on the part of the defendant to pay the money back. And when the plaintiff showed that the defendant had received the money, although it may have been tortiously or wrongfully received, yet the common law would imply a contract or agreement on the part of the defendant to pay it back, and would not permit him to show that in fact there had been no such contract or agreement. Under the statutes of this state a cause of action for money had and received, whether obtained tortiously or otherwise, as well as every other cause of action which affects injuriously the estate of the party injured, is such a cause of action as will survive after the, death of the party injured to his legal representatives. (Civil code, §§ 420, 421.) And according to many of the authorities which we have already cited this is conclusive proof that the cause of action is assignable. As long ago as 1828 it ivas said in the case of Comegys v. Vasse, 1 Peters, 213, Mr. Justice Story delivering the opinion of the court, that “ In general, it may be affirmed, that mere personal torts, which die with the party, and do not survive to his personal representatives, are not capable of passing by assignment; and that vested rights, ad rem and in re, possibilities coupled with an interest, and claims growing out of and adhering to property, may pass by assignment.” And this doctrine has been generally followed in this country ever since. It is’ now generally said that survivorship of a cause of action, and assignment, go hand in hand. Also, in this state, a cause of action for money had and received, although the money may have been tortiously obtained, as it is a cause-of action on an implied contract, may be united or joined in the same petition with other causes of action arising on contract either express or implied. (Code, § 83.) And under § 26 of the code such a cause of action, as well as every other cause of action, “ must be prosecuted in the name of the real party in interest,” except in certain cases ivhere it is “ otherwise provided.” This is not one of the cases where it is “ otherwise provided.” According to said § 26 every cause of action which has been assigned must be prosecuted in file-name of the assignee. But said section does not operate “ to authorize the assignment of a thing in action, not arising out of contract.” But as we have already seen, the plaintiff has a right in a case of this kind to claim that his cause of action did arise out of an implied contract, and the defendant has no right to claim that in fact it did not, or to deny that if did arise out of contract. Upon the authorities then, and our statutes, taken together, we think a cause of action for money tortiously obtained is assignable, and that the assignee may sue in his own name.

2. readings; constuuting^’ separate causes separately0 stated.

s.Motion to make definite ana certain.

4. Demurrer to \viien facts pleaded. There are other questions raised in this case, the principal of which are the following: First, Are the facts which are stated in the petition well pleaded? Second, Must the facts which are stated in the petition be well pleaded in order that the petition may withstand the objections made thereto by the said motions and the said demurrers? Third, Are there sufficient facts stated in the petition well pleaded to constitute a cause of action? Fourth, Are there sufficient facts stated in each and every paragraph or section of the petition well pleaded to constitute a cause of action? Fifth, Are there sufficient facts stated in any one of said paragraphs or sections well pleaded to constitute a cause of action? We must answer all of these questions except the second in the negative, and the second must be answered in the affirmative. The said motions and demurrers should therefore have been sustained. The plain- . ■* . ™s below undoubtedly intended to state 670 separate and distinct causes of action. They numbered these supposed causes of action consecutively from 1 to 670, but they did not state what these numbers were intended to represent, ■ whether they were intended to represent paragraphs of one cause of action, or whether they were intended to represent separate and distinct causes of action. And they did not state in any one of those supposed causes of action (except perhaps the first) all the facts which they intended should enter into and constitute a part of said supposed cause of action; but much the larger portion of the facts which they intended should enter into and constitute a part of each cause of action was stated in said general heading to the petition. Hence the said supposed causes of action were in no just sense separately stated as required by the code. In every case “The petition must contain a statement of the facts constituting the cause of action.” (Code, §87, subdiv. 2.) “And where the petition contains more than one cause of action each shall be separately stated and numbered.” (Code, §88.) Or in other words: each count in a petition should contain in and of itself a full and complete statement of all the facts (and no more) constituting the cause of action therein intended to be stated. In other words: each count should be separate and distinct from eveiy other count, and be complete within itself. This is the general rule. There are possibly some exceptions, one of which we shall hereafter discuss in this opinion. The proposition that each and every separate and distinct fact which enters into and assists in constituting either a cause of action or a defense must have at least one separate and distinct statement, has no exception in pleading. Facts cannot be classified and grouped together, and then alleged in the group, as has been done in this case. If the facts are single, if they are separate and distinct from each other, they must be alleged separately, arid must be alleged in the counts to which they respectively belong. No two separate and distinct facts can be grouped together and stated in one allegation; much less can 670 separate and distinct facts' be grouped together and stated in one allegation because they are similar, and because one general allegation can be framed which will cover all of them. But while it is necessary to state every fact at least once, we do not suppose it is necessary to state any fact more than once in any pleading. Probably it is not necessary to state any fact more than once in the whole case, or in all the pleadings. If such fact enters into and constitutes a part of several separate and distinct causes of action or defenses it may, after being once clearly stated in any count where it properly belongs, be referred to in any subsequent count, and by such reference be made a part of such subsequent cause of action or defense. This mode of pleading is an exception to the general rule. But such exception is founded in reason, and must be tolerated for the sake of brevity. No exception however can be tolérated that has not some strong reason in its favor. To illustrate the foregoing rule and the exception we would say: that if the 670 persons mentioned in the plaintiffs’ petition were all present at the office of the defendants at one and the same time seeking to purchase their lands, find if the defendants then and there told them all together that they must each first pay said illegal fees or they could not have their lands, then it would do for the plaintiffs to state such fact (as it would really be but one fact) once only in their petition, and then in each separate and subsequent count refer intelligibly to said fact and make it a part of such count. But if these 670 persons applied at different times and under different circumstances to enter their lands (as we must presume they did under the pleadings, and as the case is presented to us,) then a separate and distinct statement of each separate and distinct application, and the threats then and there made, must be made in the petition or the petition will be bad. In other words, it is not sufficient to state 670 separate and distinct facts (though similar) in the lump, but each must be stated separately. Every fact that requires separate evidence to prove it must be separately stated in the pleading. In the case we have supposed, if the threats that said 670 persons could not have their lands without first paying said illegal fees were all made at once, and to the whole 670 persons as they were congregated together at the office of the defendants, then evidence of such threats for any one of the causes of action would be evidence for every other cause of action, and once proving such threats would be sufficient for the whole 670 causes of action, and therefore one statement of the fact in the petition would be sufficient for all the causes of action if intelligibly referred to in every count which did not contain a full statement of such fact. But if the threats wore made at 670 different times, and under different circumstances each time, and to each of the 670 persons separately, then evidence tending to prove one threat would be no evidence of another; and evidence tending to prove the threats for one cause of action would be no evidence for any other; and in such a case the threats in each case and for each cause of action would necessarily have to be stated separately in the petition, and proved separately on the tidal; and each threat would necessarily have to be stated in the count to which it properly belonged, and could not properly be stated anywhere else. After the said general heading in the petition came the said 670 supposed causes of action. The following is the statement of the first supposed cause of action not including the said general heading, and the other 669 supposed causes of action are in form precisely like the one we here give, to-wit: “And the plaintiffs say, that for money had and received as aforesaid $7 was due from the defendants jointly to Henry Surig, who purchased theN.E.J of sec. 4, T. 29 south, of R. 16 east, and duly assigned his claim to the plaintiffs as aforesaid, which sum is due the plaintiffs from the defendants.” We suppose it will hardly be contended that this statement taken alone contains facts sufficient to constitute a cause of action. Can any one tell from the words, “that for money had and received as aforesaid,” how the money was received? The reception of the money may have been legal and valid, and such as would not create a cause of action. By using the word “aforesaid” it renders the allegation incomplete, and it can mean nothing in and of itself. . Even if it should be conceded that the allegation in the said general heading that the defendants were register and receiver of the Humboldt Land Office, is well pleaded, and still there is nothing to show without still further resorting to said general heading that this money was received by said defendants as officers, or that it was not their legal fees, or that it was not received for extra woi'k done by them as individuals and not as officers, or that this money was not paid voluntarily and without any threats or coercion, and with a full knowledge of all the facts; or that it was not paid for the purpose of obtaining some illegal advantage over some other person, both the parties being in pari delicto; or that the money wras not received in some other manner so that no cause of action would accrue. This allegation of itself amounts to nothing. Neither does the allegation that Surig “duly assigned his claim to the plaintiffs as aforesaid.” How was that assignment as aforesaid made? There is nothing to show. And were the 670 assignments of claims one act, so that they could all be stated in one allegation, and then simply referred to in subsequent counts? Such in the nature of things could not be so. If this mode of pleading jvere correct, then the plaintiffs might have alleged in general terms in the said general heading in their petition that the defendants received from each of said 670 persons seven dollars, (or some other sum large enough to cover the largest amount received from any one of said 670 persons,) and thereby saved themselves the trouble of even alleging in each separate count of their petition the amount received from the individual mentioned in that count. In fact, if such were correct pleading the plaintiffs might by general allegations in the general heading to their petition so reduce the number of the allegations for each count that the simple name of any one of the said 670 individuals from whom the money was received - would be sufficient to constitute a separate and distinct count, and the whole of such count. In such a case the first count in this case would read as follows: .. , tt n • ,, xxr > “ 1. — Jtlenry bung." We suppose that such a mode of pleading can hardly be tolerated. And if not, then the defect or irregularity can certainly be reached by motion ; and after motion made and overruled, by demurrer. Both at common law and in chancery upon a demurrer to a pleading everything stated in the pleading was taken to be true that was well pleaded, and nothing was taken to be true that was not well pleaded. Comyn Dig., “Pleader,” 26; 1 Chitty Pl., 662, (13 Am. ed.,) notes i and 1; Story’s Eq. Pl., §452; 2 Whittaker Pr., § 168; But under our code-system of practice it would seem that the rule that nothing is to be taken as true unless well pleaded has been greatly modified. It would now seem from the decisions, where no motion has been made to have the pleading made more definite and certain, or to have the several causes of action or grounds of defense separately stated and numbered, or to 'have the pleading corrected and made more formal in some other respect, that, on a demurrer to the pleading everything stated therein should be taken as true, and be considered by the court, whether well pleaded or not. Civil code, §115; Sattig v. Small, 1 Kas., 177; Western Mass. Ins. Co. v. Duffey, 2 Kas., 347, 353; Crowther v. Elliott, 7 Kas., 235; Park v. Tinkham, 9 Kas., 615; Prindle v. Caruthers, 15 N. Y., 425; Richard, v. Edick, 17 Barb., 261; Hartford Tp. v. Bennett, 10 Ohio ; Lewis v. Colter, 10 Ohio St., 451; Stoutenberg v. Lybrand, 13 Ohio St., 228; Summers v. Parrish, 10 Cal., 347, But when the proper motions have been made to require the adverse party to so amend his defective pleading as to make it definite, certain, correct and formal, thereby giving the adverse party notice wherein his pleading is defective, informal, or insufficient; and where the adverse party then refuses to amend'' his defective pleading, resists the motions to have it amended, and has the motions overruled by the court, the most rigid rule of the common law should prevail. No statement of fact in the pleading which the motions reached should then be taken as true, unless well pleaded; and if any such statement would bear different constructions the party demurring should be allowed to adopt anyone of such constructions which he should choose. The old rule of the common law that “ Everything should be taken the more strongly against the party pleading,” although it can seldom have application under our code practice, should then prevail. After a party has received full notice that his pleading is defective in some particular, and has been asked to correct it, it is his fault if it still remains defective in such particular, and he is the one who should suffer on account of such defective pleading, and not the other party. In the present case there was scarcely a fact in the whole petition that was well pleaded. Nearly all the facts that were intended to constitute 670 different causes of action were grouped together, although separate and distinct, and were stated in very general terms in one general heading to the petition. Probably no defendant'was ever before asked to answer to such a petition, and certainly no defendant should ever be asked to answer to such a petition.

The judgment of the court below is reversed, and cause remanded with instructions that further proceedings shall be had in accordance with this opinion.

All the Justices concurring.