Minor v. Baldridge

Citations

• 123 Cal. 187
• 55 P. 783
• 1898 Cal. LEXIS 1011

Syllabus

<p>Money Had and Received—Pleading—Common Counts—Money Obtained by False Representations.—The common counts in assumpsit may be used in this state, and in the absence of a special demurrer, the common counts for money had and received will lie to recover money obtained by false and fraudulent representations, and the proof may be made at the trial that it was so obtained, without any special pleading of the facts constituting the fraud; though such pleading must fail before a special demurrer.</p> <p>Id.—Conditional Contract—Subscription to Railroad Stock—Misrepresentations .—An action for money had and received will lie to recover back money paid under a conditional contract for subscription to railroad stock, on condition that a railroad should be constructed up the river, on which plaintiff’s sawmill was situated, and that the railroad company would buy lumber from such mill, where it appears that the money was obtained under a false representation that the condition had been complied with as to the location of the railroad, and that the corporation would at once order a large amount of lumber.</p> <p>Id.—Basis of Action — Rescission not Required.— Such action is not based upon the breach of contract, but is based upon the theory that the money was obtained under a false representation that it had become due under the contract by the performance of' the condition precedent by the railroad company; and it is not necessary to effect a rescission of the contract in order to maintain the action.</p> <p>Id.— Right of Corporation to Perform.—The contract .not being rescinded, and being still in force, it may yet be performed by the corporation, which may become entitled to demand and enforce payment from plaintiff.</p> <p>Id.—Liability of Misrepresenting Agent.—The agent of the railroad company who made the misrepresentations, cannot be held liable in an action for money had and received, if no money was in fact received by him, though he might be held justly liable wi