Porter v. Hermann

Citations

• 8 Cal. 619

Syllabus

<p>A complaint, alleging that the defendant collected and received certain money, as the agent, or attorney in fact, of the plaintiff, and had embezzled and converted the money to his own use, and praying that he be adjudged guilty of fraud, and for judgment and execution against his person and property, is insufficient to sustain a verdict convicting the defendant of fraud.</p> <p>The allegation is, in substance, that the defendant collected the money as agent, or, if not as agent, then as attorney in fact.</p> <p>Where the character or capacity in which a party is alleged to have acted is essential to the charge of fraud, that character or capacity must be averred in direct and positive terms, or the charge must fall.</p> <p>A charge in the alternative cannot be cured by verdict, nor by a judgment by default. The words “ attorney in fact” are not synonymous with the term “agent.”</p> <p>Attorneys in fact act under a special power created by deed; the term agent includes all classes of agents, and an agent is not necessarily an attorney in fact, though an attorney in fact is an agent.</p> <p>Per Burnett, J.—Where judgment by default is entered, in an action against a party, for fraudulently converting money of the plaintiff, the summons must have apprised the defendant that, on failure to answer, judgment would be taken against him for the fraud; a mere notice in the summons that a money-judgment would be taken will not support a judgment for fraud.</p> <p>Such a proceeding is, in its essential character, a quasi criminal proceeding, and the defendant should be distinctly apprised of the facts intended to be proved against him.</p> <p>The complaint should state the facts that constitute the fiduciary capacity, as well as its nature and extent.</p> <p>It is necessary, in such a case, to charge not only that defendant received the money as agent, but that ho converted it in the course of his employment as such.</p>