Stephens County v. H. C. Burt & Co.

If plaintiff's pleading is properly to be interpreted as alleging a cause of action "based upon an alleged fraud, as contradistinguished from a cause of action based upon some character of contract express or implied," then the writer would be able to concur in the disposition of the case made in the majority opinion. Plaintiff's pleading, among other things, alleged that plaintiff had in writing given notice to defendant "to repay said money." The prayer is for recovery of the said $28,875, "with interest as aforesaid," etc. The pleading nowhere denominates plaintiff's claim as one for damages. In determining if there is presented by plaintiff's petition a "case of fraud," within subdivision 7 of article 1995, it is necessary to bear in mind the distinction between a cause of action and the evidence necessary to support a cause of action. Undoubtedly, subdivision 7 does not fix the venue of all cases wherein the evidence necessary to support the cause of action relied on, and, irrespective of the nature of the cause of action, discloses the existence of fraud.

To the writer it seems sufficiently certain that plaintiff's petition asserts a cause of action most appropriately denominated an action for money had and received. The suit simply seeks to enforce by judgment of the court the repayment of the money. It does not seek recovery of damages for the alleged fraudulent acts. Of the two main classifications of actions, the suit is one upon implied contract. Where one person procures money of another through fraud, the latter may waive the tort and sue in contract for money had and received. 1 C.J. 1037. The contract sued on is within the classification discussed in Corpus Juris under the head of contracts "implied in law, or quasi or constructive contracts." As therein said, they "are a class of obligations which are imposed or created by law, without regard to the assent of the parties bound, on the ground that they are dictated by reason and justice, and which are allowed to be enforced by action ex contractu. They rest solely on a legal fiction, and are not contract obligations at all in the true sense, for there is no agreement; but they are clothed with the semblance of contract for the purpose of the remedy, and the obligation arises, not from consent, as in the case of true contracts, but from the law or natural equity. So, when the party to be bound is under a legal obligation to perform the duty from which his promise is inferred, the law may infer the promise even as against his intention." 13 C.J. 244.

The same authority says: "Where public moneys have been paid in violation of the law they may be recovered in an action for money had and received." 41 C.J. 51. Again the same authority says: "Where one has received money from a third person through some mistake or fraud by law or authority, which, but for the mistake or fraud, would have vested the right to the money in plaintiff, plaintiff may recover such money in an action for money had and received." 41 C.J. 41, § 21.

One of the authorities cited in support of the text is Jeff Davis County v. Davis (Tex.Civ.App.) 192 S.W. 291, 294. This was a suit by a county against a sheriff and his bondsmen to recover money paid the sheriff without lawful authority. Principles applicable to that case, it is believed, are likewise so here. As indicating the nature of this suit the court said: "His [i. e., the sheriff's] liability arose upon an implied contract to refund the same as for money unlawfully had and, received from the county."

If it be the proper construction that the cause of action is one for money had and received, then it is correct to say that the acts of fraud relied on do not constitute the cause of action, but simply the evidence to show the existence of the duty to refund. It scarcely requires the citation of authority to support the proposition that, unless the fraud be the gist of the cause of action, its existence is not sufficient to support venue. In Slaughter v. Oakes (Tex.Civ.App.) 203 S.W. 405, it was held that, in order to fix venue out of the county of defendant's residence, under exception 7 of article 1995, it is necessary that the fraud alleged be the gist of the cause of action. Also in Sheffield v. Rousey (Tex.Civ.App.) 153 S.W. 653, 655, the court, in sustaining a plea of privilege, said: "We have reached the conclusion that the alleged fraud is not the gist of and does not constitute the plaintiff's cause of action. His cause of action rests upon the fact he has been and is unlawfully deprived of the possession and custody of his minor child; and, in so far as his right of recovery is concerned, it is immaterial that the defendants, by false and fraudulent representations, induced him to consent to the removal of the child from Brown county."

Where fraud does not enter into the cause of action, venue cannot be fixed by showing as an independent matter that there was fraud connected with the cause of action, or in some way incident thereto. Latshaw v. McLean (Tex.Civ.App.) 238 S.W. 1003. As said by Judge Walthall in Neal v. Barbee (Tex.Civ.App.) 185 S.W. 1059, 1061: "Where, however, a party elects to sue on his contract rather than for his damages for fraud, trespass, or conversion, he waives the fraud, trespass, or conversion as a fact fixing the venue of his suit."

In passing upon this question only the facts alleged in the controverting affidavit should be looked to, and nothing is added to their effectiveness to show venue by designating the facts as fraudulent. Mere general statements that fraud was committed should not properly be given weight in passing upon the sufficiency of the facts. See Baines v. Mensing Bros. Co., 75 Tex. 200, 12 S.W. 984.

From the conclusions announced, it follows, as the writer sees it, that the plea of privilege was properly sustained, and the judgment of the trial court should be affirmed.