Barrere v. Somps

Citations

• 113 Cal. 97
• 45 P. 177
• 1896 Cal. LEXIS 751

Syllabus

<p>Assumpsit—Pleading—Common Count—Money Deposited for Use of Plaintiff—Special Contract—Pledge—Variance.—While the common counts are in some cases sufficient under the code, they are insufficient in those cases where they were insufficient under the old system of pleading; and an action of assumpsit for money deposited with the defendant for the use of the plaintiff will not lie where the money was deposited by way of pledge as security for the performance of a special contract izi writing, which is still open and unexecuted in part, and nob rescinded by mutual consent, but, in such case, it is necessary to declare specially upon the written contract; any modification thereof and proof of such special contract under the common count is a material variance, and a motion for a nonsuit should be granted therefor upon the ground that the cause of action alleged in the complaint is not proved and that the allegations and proofs do not agree.</p> <p>Id.—Nature of Contract Immaterial.—It is immaterial whether the written contract should be construed as one of employment or one of purchase and sale, where the money sued for was deposited as security for the performance of the contract, and was applicable to whatever relation was in fact created by it, and covers every injury the defendant may have suffered from failure of the plaintiff to perform it.</p> <p>Id.—Agreement to Return Property in Good Condition.—Where the written contract or pledge .expressly provided that the money deposited was “ to secure the return of all property hired by said party of the second part as aforesaid, in good order and condition,” and it appears that the plaintiff had not returned such property, effect must be given to such express provision, and the plaintiff is bound by the terms of the contract, and can urge that it is a hardship to be compelled to pay for losses not attributable to his want of ordinary care.</p> <p>Id.—Interest on Deposit.—Interest on money deposited as security is not r