Hammer v. Downing , 39 Or. 504 ( 1901 )

Mr. Justice Wolverton

delivered the opinion.

The plaintiff sues for money had and received, his complaint containing eight counts. The allegations are similar in all, except the last, wherein no assignment of demand was necessary to be shown, as the transaction involved was with the plaintiff personally. We therefore give the first, only, which is as follows, omitting formal averments: “That at various times between the first day of January, 1896, and the first day of June, 1897, at Portland, Oregon, W. A. Wells advanced and paid to defendants, as such partners, divers sums of money, altogether amounting to the sum of $1,200, to be used and invested by them in the purchase and sale of grain, namely, wheat, for him and on his account, in the board of trade of the City of Chicago, State of Illinois, at said time, less their commission on such purchase and sale. The defendants did not purchase nor sell any wheat or other grain during said period, or at any other time, for or on account of said W. A. Wells, in said board of trade or elsewhere, or otherwise use or invest said sums aggregating said amount of $1,200, or any part thereof, for or on account of said W. A. Wells, or earn or become entitled to any commission whatsoever.” Then follow allegations of the assignment of the claim, demand, and nonpayment. By leave of the court the complaint was amended during the trial so as to conform to the facts proved, by showing that the dealings were in “grain or pork,” instead of wheat, simply, and the defendants were permitted to file an amended answer thereto, which runs as follows: “Deny that at various times between the first day of January, 1896, and the first day of June, 1897, or at other times, or ever, at Portland, Oregon, or elsewhere, W. A. Wells advanced or paid to defendants, as partners or otherwise, or to either of them, divers'or any sums of money, either amounting to the sum of $1,200, or to any sum whatever, to be used or invested by defendants, or either of them, in the purchase or sale of grain of any .kind soever, or pork, for said W. A. Wells, or on his account, in the boai'd of trade of the City of Chicago, State of Illinois, or elsewhere, at said or any times, less their or any commissions on said alleged, purchase or sale, or otherwise, or any other sum or sums whatever; and deny that during, said period, or at any other time, these defendants, for or on account of said W. A. Wells, did.not use and invest any. and all sums of. money received'by them fór and,on account of said W. A. Wells, in accordance with the directions and instructions of said W. A. Wells with reference to the use and investment thereof:” and, continuing; defendants specifically deny all other allegations of the complaint, .and. interpose three separate defenses, setting up (1) that defendants paid Wells $982.50 prior to any assignment of-his demand, which was received and accepted by him in, full satisfaction of said alleged claim; (2) that, prior to any assignment of the demand, to. wit, on or about April 30,1.897, the defendants and- Wells had a mutual accounting touching the matters and things mentioned in the complaint, and that upon said accounting it' was found there was nothing due Wells from defendants, and that, at other times prior to said assignment, other accountings were had, and that defendants paid to the said Wells the amounts found due upon such respective accountings; and, (3) by way of set-off, that, prior to the time of said alleged assignment, at the special instance and request of said Wells, and without consideration, defendants advanced' and paid to Wells divers and sundry sums of money, amounting in the aggregate to $982.50, which said sums, and said aggregate sum of $982.50, were, and each of them was, received by Wells to and for the use and benefit of the defendants, and the same has not been repaid. The original answer did not set up these accountings and settlements, and hence it became'necessary to amend the reply to meet that defense. As an affirmative defense to the set-off pleaded in the original answer, it was alleged in the reply “that all said averred sums of money received by said W. A. Wells from defendants, and every portion thereof, were during said period, and prior to the commencement of this action, fully returned and repaid to the defendants by the said W. A. Wells.”

To obviate the formal amendment of the reply, the court made and entered an order as follows: “Upon ■the filing of defendants’ amended answer by leave of the court, setting up an additional separate defense by mutual accountings and settlements, being second ánd separate defense therein to each separate cause of action, and upon motion of plaintiff by his attorneys, it is ordered by the court that plaintiff have leave to amend his replication so as to deny each and every averment in said second separate defense to each separate cause of action, and allege that each and every of said averred accountings, settlements, and payments, and every item in any account'considered on any such averred accounting, and the assent of plaintiff or any of his assignors thereto, was induced and procured by defendants through fraud and false representations on their part, and mistake on the part of plaintiff and his said assignors, and that plaintiff’s replication shall be taken and deemed as so amended without filing any amended pleading or interlineation of his original replication.” At the time of this .entry the defendants objected to it upon the ground that the plaintiff could not enlarge his cause of action by the reply, and because it was apparent upon its face that the matter relied upon does not constitute a sufficient reply to the facts stated in the separate defense of mutual accountings and settlements, and is otherwise insufficient.

The evidence offered in support of the several causes of action was very similar in its nature, except as it pertains to the last, which was concerning the dealings and transactions had with the plaintiff individually, and hence the statement may with propriety be confined to one or two only of such causes. . The plaintiff was first called as a witness, and was shown certain statements of accounts, eight in number, marked, respectively, “AA,” “X,” “Q,” “JJ,” “KK,” “NN,” “EE,” and “L,” which were identified by him and then offered in evidence, whereupon defendants’ counsel objected, assigning as a reason therefor that they comprised a large number of transactions other than money had and received by the defendants from the plaintiff and his assignors, and were immaterial and irrelevant. In answer to the objection, counsel for plaintiff stated that the exhibits were offered for the purpose of showing the amount of money paid into the hands of Downing, Hopkins & Company, and the amount paid by them to each of the parties, and the dates, The defendants then interposed a further objection that the accounts do not show money had and received, and that all of them, except that of the plaintiff .individually, exhibit receipts of money far in excess of what is claimed by the .complaint. A special exception was also noted to the excess, but, notwithstanding, they were admitted in evidence. Those of Wells and Reidt, the assignors of two of the demands of plaintiff, forming the basis of the first and fourth causes of action, are as follows :

In connection with the Wells demand, eight receipts from Downing, Hopkins & Company, showing payments to them by Wells of eight several sums of money from time to time, aggregating $1,000, were offered, and, as it respects the Reidt claim, four receipts, showing payments to Downing, Hopkins & Company of $470, were offered, and all admitted, over objections. The statements of account were offered a second time, in connection with each assigned demand, when like objections were interposed as formerly, and it was further insisted that they were at variance with, the allegations of the complaint, and did not tend to support the issues tendered. Again, at the close of the testimony as to some of, if not all, the different causes, counsel for defendants moved to strike out the testimony of witnesses, and more particularly as it pertained to the moneys paid to the defendants in excess of that demanded in the complaint, assigning as reasons therefor that it was at variance with such complaint, and showed an attempt to split up the cause of action. All such motions were overruled, and, the verdict being favorable to the plaintiff, the defendants appeal.

1. The amended complaint does not introduce a new cause of action, and was therefore properly allowed.

2. It is suggested that the effect of the manner and' form of the denials adopted in the answer, in the absence of an affirmative allegation accompanying them that the money advanced was used by defendants forjsome other purpose, is to admit that the money so advanced was not used or invested as it is alleged that the defendants agreed to use and invest it, — that is, in the purchase and sale of grain and pork. Brought into near relation, the allegations are “that at various times * * * Wells advanced and paid to defendants * * * divers sums of money, to be used and invested by them in the purchase and sale of grain or pork; * * * that defendants did not purchase * * * or otherwise use or invest said sums for or oh account of said Wells,” etc. The denials are “that at various * * * or other times or ever- * * * Wells advanced or paid to defendants, * * * or either of them, divers or any sums of money, * * * to be used or invested by defendants, or either of them, in the purchase and sale of grain or pork for said Wells, or on his account,' * * * or any other sum or sums whatever, and deny that during said period, or at any other time, these defendants, for or on account of said Wells, did not use and invest any or all sums of money received by them for and on account of said Wells, in accordance with the directions and instructions of said Wells with reference to-the use and investment thereof.” The denials are somewhat ambiguous, but we think their effect is to put in issue the payment of any money whatever by plaintiff to the defendants. Following the words, “to be used and invested,” etc., at some distance, but apparently in the same connection, is the expression, “or any other sum or sums whatever,” which is the equivalent of a denial that Wells advanced or paid to the defendants any money. There is, however, no explicit denial of the allegation that the defendants did not purchase or sell any grain or pork for or on account of Wells on the Chicago Board of Trade, but the answer does deny that during said period the defendants, for or on account of said Wells, did not use or invest all sums received for or on his account, in accordance with his directions and instructions. This brings into the controversy a feigned issue. The plea presupposes that Wells had otherwise directed the use and investment of said sums of money without averring it, and follows it up with a denial that the defendants did not use and invest it in accordance with such directions. That there is an attempted evasion of the true issue is plain, and we think the effect is to admit that the money, if any was received by the defendants, was not invested in the purchase or sale of grain or pork on the Chicago Board of Trade. Nevertheless, there stands the denial that defendants received “any sum or sums whatever,” which puts the plaintiff to the proof, not only of the payment of the money to defendants, but also of the purpose for which it was paid, so as to lay the foundation for the breach, which is, if the foundation is well laid, admitted.

3. It is next insisted that the reply should be regarded as a departure in the pleadings in two particulars : First, as it respects the fraud and mistake attempted to be set up touching the several accountings referred to in the answer; and, second, as it concerns the affirmative allegations touching the set-off pleaded by the defendants. The order entered by the court was doubtless not intended to set forth fully and in technical language the defense of fraud and mistake as against the alleged settlements. It simply grants the plaintiff leave to file a reply setting up such matter, and directs that the former replication shall be taken and deemed as so amended, which was for the purpose of expediting the trial. .Under such conditions, we must not only assume that the replication was amended in the particular designated, but that the defense was well stated, not by the averment of conclusions only, but of facts from which the conclusions may be drawn.

4. Nor is the defense that the alleged accountings were procured through fraud and mistake a departure. These accountings were pleaded as an impediment or bar to the plaintiff’s recovery, and the reply is in avoidance thereof, so that the plaintiff may be able to show that, if such were in fact had, they were obtained by fraud, and thus nullify their effect.

5., It is not clear that the second objection was made to this replication at the time leave was granted to make the amendment, but it is expressly made here, and the objections to the introduction of the evidence are of such a nature as to require us to determine the question. It will be noted that the answer sets up certain payments of money made to the plaintiff’s assignors by the defendants at their especial instance and request and without consideration, which money defendants allege the plaintiff had and received to the use and benefit of the defendants. After traversing these averments, the reply sets forth that the several sums of money so alleged to have been had and received by the plaintiff had been fully repaid to the defendants. For the lack of more specific averments of both the answer and reply, we are unable to say from these pleadings alone that the reply constitutes a departure in this particular ; but when the plaintiff’s exhibits, being statements of accounts, are brought to the attention of the court, it becomes at once manifest that the plaintiff has not included in his complaint all sums of money paid by him to the defendants under like conditions and within the specified dates as those which form the basis of the action, and that the purpose of the reply is to set off such as were not included against the money which the defendants allege that the plaintiff and his assignors had and received of defendants . to their use and benefit. It further appears that the money paid by the defendants to the plaintiff was so paid in the course of the same dealings out of which it is alleged that plaintiff’s demand arises. The replication of a set-off to a plea of set-off is bad, and constitutes a departure in pleading. But the reply in this case is not technically a set-off. It is rather a plea of payment, which ought to have been included in plaintiff’s complaint if he would avoid the set-off in the answer. He can not be permitted to split up his demand, and, when a plea of set-off is made to such as he has preferred to sue upon, set up the balance in the way of repayment as a defense to the set-off, where all the demands coming from either side arise out of the same course of dealings and within the time alleged in the complaint. Matte-son, C. J., in Heath v. Doyle, 18 R. I. 252, 255 (27 Atl. 333, 335), says : “The plaintiff must prevail, if at all, on the matters alleged, in his declaration. A replication of set-off to a plea of set-off, though it might otherwise be a good answer to the adverse allegations of the plea, is bad, nevertheless, being what is technically known as a ‘departure’, because it does not support the declaration, as every subsequent pleading on the part of the plaintiff is required to do by the rules of pleading.” To the same purpose, see Dawson v. Dillon, 26 Mo. 395.

6. There is a contention that the excess shown by the credits in the respective accounts constituting the set-offs of the defendants was for money which the defendants paid plaintiff and his assignors as a profit on pretended purchases and sales of grain and pork, returned to the defendants for reinvestment, and that the purpose of the complaint and the introduction of the accounts was to recover only such amounts as he and his assignors advanced out of their own individual funds, disregarding and excluding any increase of funds because of any gains or profits. It was expressly stated, after objection was made to the introduction of these accounts, that the purpose of using them was to show the amount of money paid into the hands of Downing, Hopkins & Company, and the amount paid back; hence, when we refer to the accounts, taking as an illustration Wells’ statement, we find that he is credited with cash representing payments of money made by him to the defendants, between the dates named in the complaint, aggregating $1,925. He is also credited with an aggregate of $188.75, denominated “gain.” Now, we may assume that in putting cash back into the business this amount was included. Deducting it, therefore, from the cash credits, we have $1,736.25 as the amount Wells put in of his own means, regardless of any profits; but, instead of that amount, plaintiff sues for $1,200. So, the contention does not hold good that the plaintiff is suing for the money which he and his assignors have put into the business of their own funds, disregarding the gains. On the debit side, we find that Wells has drawn from the defendants cash, including the check of March 20th and the Hayes debit, to the amount of $982.50, and this is the amount it is sought to cancel by the surplus payments of cash over and above the-sums sued for, contained upon the credit side of the account. The Reidt account shows the same state of affairs. The amount actually paid in, less gain, which he is supposed to have turned back into the venture, is $503.75, while the amount sued for is $400. The amount of cash paid to Reidt, as shown by the debit side of the account, is $207.50, which is the exact amount for which defendants claim a set-off. To defeat this set-off demand, the plaintiff attempts to show payments of money by Reidt to defendants, which payments are all contained upon the credit side of the same account. Without further elaboration, it is apparent that the accounts were offered for a double purpose : First, to prove plaintiff’s demand; and, second, to show repayment to defendants of the sums of money which they have alleged were received by plaintiff to their use and benefit; but they were not competent for either under the state of the pleadings. They had a tendency to prove the allegations of the complaint, it is true, but they proved too much. The aggregate of the demands on the credit side is so largely in excess of the amount sued for as to show a different demand, and there was no attempt whatever to designate or specify any certain credits as indicating the identical money paid upon which plaintiff’s claims are based, so that there was a variance between the pleadings and proofs, such as required an amendment to cure. It was clearly material, and the errors attending the admission of the statements of accounts can not be properly disregarded, as though the amendment had been actually made in the trial court: Robinson Min. Co. v. Johnson, 13 Colo. 258 (22 Pac. 459, 5 L.R. A. 769).

These observations do not apply with equal force to the plaintiff’s statement touching his own account, because no set-off is pleaded to that cause of action, and the credits, less the gain, are not so largely in excess of the amount sued for. The reply being a departure, it could not support the complaint, much less would the evidence be competent to substantiate it. But it is claimed that the money which it is alleged that defendants had and received of plaintiff was otherwise shown. The record, however, does not bear out the contention. In the case of Reidt, the $400 sued for, with $70 additional, is shown, while, in the case of Wells, $1,000 only is thus proven of the $1,200 sued for ; but this could not in any event cure the error in admitting the statement of accounts.

7. There is another contention, — that the accountings and settlements set up in the answer do not constitute a valid defense to the action for money had and received, because it is alleged that they were had prior to the assignment of the demands to the plaintiff, and plaintiff had not at that time elected to waive the contract and sue in the manner adopted. But it is difficult to see why these accountings are not just as effective as a defense in the one case as in the other. If they were had at all, and were entered into in good faith and without inducement of fraud, or were not the result of mistake of the partie.s concerned, they constitute a full defense to any liability that might have arisen upon the contract, and the mere circumstance that a demand was made for money paid to the defendants, which became necessary for the purpose of employing another form of action, could not circumvent the effect of the accountings and settlements. If they destroyed the cause of action upon the contract, and left the parties with all dealings between them adjusted, it could not be revived in another form by the mere circumstance of a demand.

8. The defendants urge that, because of the accountings, the court should have instructed the jury to return a verdict for them. It. was a question to be determined under the evidence touching the manner of adjustments and the alleged fraud and mistakes attending them, whether such accountings had been fairly and duly consummated. The plaintiff asserts that he and his assignors were deceived in the defendants’ method of doing business, and supposed that they were buying and selling on the Chicago Board of Trade, and that they were actually dealing in grain and pork, whereas the dealings were merely simulated, and not real. Now, if these transactions Were fraudulent, and without knowledge of the plaintiff and his assignors, the pretended accountings and settlements may have been had under like conditions and without their knowledge as to the true state of affairs; hence would also be fraudulent-as to them. • These were matters, however, for the jury to determine, and therefore it would not be proper to instruct it to return a verdict as requested.

Other errors have been assigned in the record and questions presented for our determination, but, as the case must go back, they may not arise again on a retrial; hence it is unnecessary to pass upon them , now. The. judgment below is reversed, and the cause remanded for such other proceedings as may seem proper.

Reversed.