Rinehart v. Pirkey , 126 Va. 346 ( 1919 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

[1, 2] As said in Clark on Contracts (1894 ed.), sec. 314, p. 757, “The acts of the parties may bring about an- obligation quasi ex contractu * * * Where one person confers benefits úpon another for which the latter ought to pay, * * * the obligation rests, as said by Professor Keener, ‘upon the doctrine that a man shall not be allowed to enrich himself unjustly at the expense of another.’ ” This learned work then proceeds in its text to quote from the opinion of this court delivered by Judge Lee in the case of Lawson v. Lawson, 57 Va. (16 Gratt.) 230, at p. 232 (80 Am. Dec. 702, as follows: “ ‘The action of indebitatus assumpsit for money had and received will lie whenever one has the money of another which he has no right to retain, but which ex aequo et bono he should pay over to that other. This action has of late years been greatly extended, because founded on principles of justice; and now embraces all cases in which the defendant is bound by ties of natural justice and equity to refund the money. In such a case no express promise need be proved, because from such relation between the parties the law will imply a debt, and give this action, founded on the equity of the plaintiff’s case, as it were, upon a contract—‘quasi ex contractu,’ as the Roman law expresses it—and upon this debt found the requisite undertaking to pay.’ ”

[3] The alleged causes of action, if they exist, must have arisen under the legal principle above mentioned. Such is the character of such causes of action. Of course the burden of proving all of the facts from which the alleged legal liability will arise rests upon the plaintiff who asserts such liability. How far the pleading of such a plaintiff must descend into allegation of particulars, if at all, beyond the general allegation of such facts as may be sufficient to so apprise the defendant of the cause of action which he is called upon to defend that he cannot reasonably mistake what cause of action is alleged, is the subject of controversy in the case before us.

The actions in the cases before us may be maintained if the relationship and acts of the parties bring the cases within the operation of the principle of law above mentioned. It would be out of place for us in the consideration of the cases on the demurrers to the notices to enter, further than we have done above, upon any statement of what relationship and acts of the parties would or would not make a case for the plaintiffs to which the legal principle mentioned would be applicable. Our consideration must be confined to the question of whether the amended notices of motion set out matter of fact sufficient to maintain the actions?

[4] Before proceeding to deal with the question just stated, we should observe that the position is taken in the brief for the defendants that the bills of particulars referred to in the statement of the case preceding this opinion are no part of the original or amended notices of motion, citing a number of authorities and among them George Campbell Co. v. George Angus Co., 91 Va. 441, 22 S. E. 167. That position is unquestionably correct. On the question of the sufficiency of their allegation, the amended notices must stand or fall alone, unaided, in so far as the demurrers are concerned, by the bills of particulars which were filed or any which could be filed in the cases. And the bills of particulars which were filed, went out of the- cases with the original notices when the latter were dismissed (Kelsey v. Punderford, 76 Conn. 277, 56 Atl. 579), and cannot be considered by us as any part of the records before us.

Coming now to the question of the sufficiency or insufficiency of the amended notices:

[5] Under the statutory procedure by motion the notice takes the place of the writ and declaration. Burks’ Pl. & Pr., sec. 97, p. 169. But it does not follow from this that a notice must be as specific in its allegations of fact as is essential to the validity of a declaration, for if that were so the object of the statute law in putting in force this reform in pleading—which among other things is “to simplify and shorten pleading * * * (Burks on Pl. & Pr., sec. 97, p. 168) —would be in part, at least, defeated.

[6] As said in the learned and valuable work just quoted concerning notices in a proceeding by motion under our statute law on the subject: “They are viewed with great indulgence by the courts; and if the terms of the notice be general, the court will construe it favorably, and apply it according to the truth of the case, so far as the notice will admit of such application. If it be such that the defendant cannot mistake the object of the motion, it will be sufficient.” Citing Virginia cases. Burks’ Pl. & Pr., sec. 97, p. 169. This of course means that the notice is good on demurrer if the defendant cannot reasonably mistake its object. And, as said in the opinion of the court delivered by Judge Buchanan in Union Central Life Ins. Co. v. Pollard, 94 Va. 146, at pp. 158-4, 26 S. E. 421, 422 (36 L. R. A. 271, 64 Am. St. Rep. 715). “If the notice be such that the defendant cannot mistake its object, it will be sufficient. * * $ £jie defendant desires more specific information of the plaintiff’s claim than is contained in the notice, he has the right to move the court to order the plaintiff to file a statement of the particulars of his claim. If the court makes such order and the plaintiff fails to comply with it, the court may exclude evidence of any matter not so plainly described in the notice as to give the defendant information of its character. Code, sec. 3249.”

It is true that this court held in Security Loan Co. v. Fields, 110 Va. 830, 67 S. E. 342, that the notice must state a case in which, if true, the plaintiff is entitled to recover. Of the correctness of that statement of the law, as applicable to that particular character of case, we have no sort of doubt. There the liability of the defendant, an endorser, depended upon the existence of the facts of the presentment for payment at maturity and the notice having been given of the dishonor of the note. These essential facts were not in any way alleged in the notice. The question there presented was not whether a notice containing a general allegation of such facts in the form of a conclusion of fact, was sufficient; but whether a notice in which there was an entire absence of the allegation of such facts was sufficient.

[7, 8] Certainly the notices under consideration are not insufficient to “state a case,” i. e., to state a cause of action, merely because they are general in their terms. That is to say, they do not fail to sufficiently state a cause of action merely because such statement is in the form of conclusions of fact. This is true in general of declarations, and a fortiori must be true of notices. Therefore, without entering here upon the interesting subject of just how far the informality permitted in a notice will allow H to fall short of the allegations of fact required in a declaration, we deem it sufficient to say concerning the cases before us that if the notices are such that the defendants could not reasonably mistake their object (i. e., could not reasonably mistake the causes of action intended to be stated therein), and such causes of action, if they exist, are such as entitle the plaintiffs to recover, the notices are good on demurrer, although they state some of the facts in the form of conclusions of fact.

Now we find on reading the notices, copied in the statement preceding this opinion, that they are more specific in their allegations of fact than would have been the common count of indebitatus assumpsit, if that form of action had been used by the plaintiffs, and they state causes of action in which the plaintiffs are entitled to recover if the common count just mentioned would have done so.

Declarations in assumpsit, containing the common count just mentioned, would have been unquestionably sufficient to maintain the actions in the cases before us and would be held good on demurrer in such cases. The contract involved in these cases is in truth a liquidated claim, the pleading of which at common law was reduced to the short statement of the existence of a debt, and the count indebitatus assumpsit was adopted as a sufficient form for sutíh a pleading. Clark on Contracts (1894 ed.), sec. 311, pp. 754-5. And yet such count would have been more general in its allegations than the notices aforesaid. That count would have alleged merely that “the said defendant was indebted to the said plaintiff * * * in the sum- of $2,700.00” (in the one case, and $1,620.00 in the other) “for money before that time lent and advanced to and paid, laid out and expended for the said defendant, and at his * * * special instance and request.” Such declarations would not have informed the defendants to whom the money was alleged to have been paid, whether to the defendant or to some other person, or, if the latter, to what other person, or whether it was paid out as a loan, or otherwise, or for what purpose or what was the nature of the transaction in which it was paid out, or how the defendant was benefited. Nor would the allegation of the paying out at the “special instance and request” of the defendants have conveyed the information to the defendants that it was alleged that they had in fact made such request. For, as is well understood, such count in a declaration in assumpsit, “rests only on a legal liability springing out of a consideration received,” note of Hare & Wallace to case of Cutter v. Powell, 2 Smith's Lead. Cas. (5th Am. Ed.) 22-53; that is to say, such count rests upon an implied promise which the law infers in the absence of any express promise, because, ex aequo et bono, such a promise should be so inferred. Such a declaration does not inform a defendant that the expenditure alleged was in fact made “at his * * * special instance and request,” since the defendant must be taken to know that such phraseology is merely formal and fictitious, and that its true meaning is that it charges that the law has implied the promise, and hence that the defendant has, “impliedly promised” to repay the money to the plaintiff. Burks Pl. & Pr., sec. 86, pp. 124 et seq.

[9] Comparing the notices under consideration with the common count of indebitatus assumpsit, we see therefore that the notices give to the defendants all of the information concerning the causes of action that such count would have given, if used by the plaintiff in. actions of indebitatus assumpsit, namely, that the said defendants were indebted to the said plaintiff in the sums of money aforesaid, which were on a certain day, which is named, “advanced” for the said defendants, and which) they have “impliedly promised” to repay to the plaintiff. And the notices give, in addition, more definite and specific information to the defendants, namely, to whom the money is alleged to have been paid; the purpose for which it was l paid; the nature of the transaction in which it was paid; how the defendants were benefited; and adds the additional allegations of fact (albeit that if is a conclusion of fact), that the defendants subsequently to the alleged action of the plaintiff “ratified” such action, and in that way also made themselves “liable” to the plaintiff, i. e., in that way also “impliedly promised” to repay the money to the plaintiffs.

[10] With respect to the allegation of ratification: Of course, no act of another can be ratified without the person ratifying having had knowledge of the act before or at the time of such ratification. But an allegation of ratification necessarily includes the allegation of such existence of such knowledge, since without the 1 atter the former fact could not exist. Ratification is the ultimate fact in such case. The allegation of ratification assumes, the existence of the knowledge aforesaid as a conclusion, but it is a natural and indeed a necessary conclusion and is a conclusion of fact.

To summarize:

The notices allege even as specifically as declarations of indebitatus assumpsit would have' done, the ultimate fact that the money was advanced by the plaintiff for the benefit of the defendants, and substantially the further ultimate fact that this was done under such circumstances that the case is one of that character in which the law implies a promise on the part of the defendants to repay the plaintiff the money so advanced.

The notices also allege the still further ultimate fact that the defendants ratified the plaintiff’s claim in such a manner that the case is one of the character aforesaid.

The notices in addition descend much more into detail of allegation of the facts in part constituting the proof of said ultimate facts than declarations in indebitatus assumpsit would have done, and on the whole the notices are such that- the defendants could not reasonably mistake the object of the motions—i. e., could not reasonably mistake the causes of action intended to be alleged therein.

We are of opinion, therefore, that the notices are sufficient to entitle the plaintiff to go to trial of the actions aforesaid.

[11] What is said in Union Central Life Ins. Co. v. Pollard, supra (94 Va. at pp. 153-4, 26 S. E. 421, 36 L. R. A. 271, 64 Am. St. Rep. 715), above quoted, in regard to the right of the defendant to move the court to order the plaintiff to file a bill of particulars, and that if the court makes such order and the plaintiff fails to comply with it. the court may exclude evidence of any matter not so plainly described in the notices as to give the defendants information of its character, is applicable to these cases; and it will depend upon the evidence before the court on the trial of the cases, if such) trials are had, whether the plaintiff is entitled to recover of the defendants upon the legal principle above averted to. And upon the last mentioned, subject we wish to be understood as expressing no opinion.

The judgments under review will therefore be reversed, the demurrers will be overruled, and the cases remanded to the court below for further proceedings to be had therein, if the parties are so advised, not in conflict with this opinion.

Reversed and remanded.