Perfecto Armijo, the appellee, sets forth in his bill that in the year A. D. 1882 he was duly and legally elected, and duly and legally qualified, sheriff of Bernalillo county, as provided by the requirements of the statutes of the territory of New Mexico in such case made and provided, and he then and there became, ever since has been, and still is, sheriff of said county, duly elected and qualified, and entitled to exercise the functions and discharge the duties of said office, and to receive the fees and emoluments arising therefrom; and he further alleges that, by virtue of said office, he is ex officio collector of taxes and licenses for said county of Bernalillo, and is entitled to exercise the functions and discharge the duties of said office of collector of taxes and licenses, and to receive the fees and emoluments arising therefrom. He further alleges that he has never resigned or vacated. either of said offices; that he has never been lawfully removed therefrom; and that the term for which he was so elected and qualified has not expired.

Santiago Baca, the appellant, by his demurrer admits that the foregoing facts are all true, and then stops without claiming that he was ever elected or appointed sheriff or collector of taxes and licenses for the county of Bernalillo. It is not possible to add argument to this record to make it plainer that the title to the office of sheriff is not at issue between these parties in this action; nor does it weaken this position that the appellee has set forth in his bill that the board of county commissioners of Bernalillo county, acting without authority of law, declared the office of sheriff vacant, and that "Lionel Sheldon, governor of the territory of New Mexico, wrongfully, and without warrant or authority of law, and although no vacancy existed in either of the said offices, and while [the said Perfecto Armijo] was in the exercise of the duties and discharge of his said offices, did issue to Santiago Baca a pretended commission as sheriff of the county of Bernalillo, in the territory of New Mexico." And these allegations by the demurrer are admitted to be true.

The bill proceeds, and alleges that Santiago Baca, the appellant, is attempting to usurp Perfecto Armijo's said offices of sheriff of the county of Bernalillo, and collector of taxes and licenses of the county of Bernalillo, and to discharge the duties and exercise the functions. of said offices, and to receive the fees and emoluments arising therefrom; and the bill further alleges Santiago Baca will, unless restrained by the order and process of the court, usurp the said offices of sheriff of the county of Bernalillo, and collector of taxes and licenses of the county of Bernalillo, and will oust the appellee therefrom, and will greatly embarrass and hinder the appellee in the discharge of his duties and exercise of his functions as sheriff and collector aforesaid, to the appellee's irreparable injury, and to the irreparable injury of the public business intrusted to him (Perfecto Armijo) in his official capacity; and further charges that "all of which acts, doings, and proceedings of the said Santiago Baca are contrary

to equity and good conscience, and tend to the manifest injury and oppression of the said Perfecto Armijo in the premises." And the appellee adds that he is without remedy in the premises, save in a court of equity. All these allegations, severally and collectively, are admitted by the demurrer to be true. We think the foregoing recapitulation of the allegations and admissions of the parties make it abundantly manifest that a court of chancery has jurisdiction in the premises, and that equity requires that the appellant should be enjoined, as prayed for in the appellee's bill. The decree of the court below is affirmed, and it is ordered that the appellant pay the costs.

AXTELL, C. J. I concur.

(19 Nev. 98)

SUPREME COURT OF NEVADA.

WHITE PINE Co. BANK v. SADLER.
Filed May 16, 1885.

COMMON COUNTS IN ASSUMPSIT-MONEY HAD AND RECEIVED.

In all cases where there is nothing remaining to be done except the payment of money by the defendant, the plaintiff may declare generally upon the common counts; and the facts which create the indebtedness or liability need not, in order to sustain the count of money had and received, be stated in the complaint.

Appeal from a judgment of the Sixth judicial district court, Eureka county, entered in favor of plaintiff.

Henry K. Mitchell, for appellant.

Baker & Wines, for respondent.

HAWLEY, J. The appeal in this case, there being no assignment of errors specified in the statement on motion for new trial, presents but one question for our consideration, viz., does the amended complaint state facts sufficient to constitute a cause of action? The action is for money had and received. There are two counts in the complaint. The first alleges, in substance, that one W. T. Leyshon was indebted to plaintiff in the sum of $2,500; that said Leyshon obtained a judgment against the Albion Con. M. Co. for $2,600; that Leyshon was indebted to defendant, Sadler, and others; that, in order to secure the payment of his indebtedness to the defendant, to P. N. Hansen, and to E. R. Garber, he assigned his judgment against the Albion Company to the defendant, "with instructions to collect the said judgment and retain his own demand, amounting to the sum of five hundred dollars or thereabouts, to pay the claim of P. N. Hansen, above mentioned, and to deliver to E. R. Garber, the attorney of the said W. T. Leyshon, the balance of the money derived from the said judgment;" that the defendant sold and assigned the judgment to Prentiss Selby for $2,600; that after paying all demands which he was instructed and authorized to pay out of the same, there remained in the defendant's hands the sum of $1,591 belonging to Leyshon, which should have been delivered to E. R. Garber, under and by virtue of the arrangement between Sadler and Leyshon; that Leyshon, for the purpose of paying his indebtedness to the plaintiff, made and delivered to plaintiff an order upon E. R. Garber, for the money coming into his hands from the defendant, which order was accepted by Garber, he agreeing, in writing, to perform the request mentioned in the order, provided he received the money from Sadler; that the defendant had notice that this money had been assigned to plaintiff, "and knew of the existence of said order, and that all money in his hands was assigned and transferred to this plaintiff by virtue thereof;" that the amount due Garber from Leyshon was $250, which the defendant paid; that Garber had no further interest in said fund, and was to

receive the balance from the defendant, as the agent of said Leyshon, to pay it over to the plaintiff; that the defendant, although often requested, has failed, neglected, and refused to pay said money to Garber in accordance with the agreement between him and Leyshon, and refuses to pay the same, or any part thereof, to plaintiff.

The second count alleges that "upon the twentieth day of May, 1883, the defendant had and received from Prentiss Selby the sum of fifteen hundred and ninety-one dollars, for the use of, and to be paid over to, this plaintiff; that the defendant, although often requested, has hitherto failed, neglected, and refused, and does still refuse, to pay the same, or any part thereof, and the same is now wholly due and payable, wherefore the plaintiff demands judgment.

*

The objections urged by appellant against the second count of the complaint, that the words "for the use of" only state a conclusion of law, and that no demand is alleged, cannot be sustained. In determining whether the complaint state facts sufficient to constitute a cause of action, we are not required to consider whether any objec tions to the form of the complaint might have been raised and held good upon special demurrer.

Mr. Chitty says:

"The form of this count is extremely simple; it is merely stating that the defendant is indebted to the plaintiff in a certain sum for money had and received by the defendant, to and for the use of the plaintiff." 1 Chit. Pl. (16th Amer. Ed.) 362.

Such is the form generally used, and is sufficient. 2 Chit. Cont. (11th Amer. Ed.) 899; 1 Abb. Pr. & Pl. 173; 1 Estees, Pr. & Pl. (2d Ed.) 349.

In all cases where there is nothing remaining to be done except the payment of money by the defendant, the plaintiff may declare generally upon the common counts; and the facts which create the indebtedness or liability need not, in order to sustain this count, be stated in the complaint, (Grannis v. Hooker, 29 Wis. 67; 2 Greenl. Ev. § 104,) although in a case like the one under consideration it is certainly proper, and the better practice, to set forth the facts in detail in one count, as was done in this case, so as to advise the defendant of the particular facts relied upon to maintain the action. It is usual, in the common count for money had and received, to allege a specific demand for the money. But if the defendant has money in his hands, which it is his duty to pay over to plaintiff without demand, no demand before suit is necessary. Rosendorf v. Mandel, 18 Nev. 129; S. C. 1 PAC. REP. 672; and authorities there cited. Upon the facts stated in the first count it became the duty of the defendant to pay over the balance of the money obtained upon the Albion judgment, after deducting his own and Hansen's demands from the amount received, to E R. Garber, without any demand being made upon him so to do.

The language of the court in Stacey v. Graham upon this point is directly applicable to this case:

"Upon these facts no demand was necessary in order to maintain the action. The defendant received the fund under a positive duty to remit, and having violated that duty he became immediately liable. He may not have known that the remittance was to be made ultimately on account of the plaintiffs, and, it may be, he had never heard of them. This can make no difference. He was not, in any point of view, to hold the money until called for, but was to send it forward. It is no answer to an action of this character that a demand has not been made, unless there is something in the agreement under which the money was received, or in the circumstances attending the deposit, implying a right or duty to hold it until actually called for by the owner." N. Y. 497.

14

The second count is sufficient to sustain this cause of action. If, as stated in the first count, the defendant had any money which it was his duty to pay over to Garber, the fact that the plaintiff had received an order upon Garber for this money created such an interest therein as entitled it to bring and maintain this action.

Wharton says:

* *

"When money is received by one party to another's use in such a way that a contractual relation may be assumed to exist between them * an action for money had and received may, at common law, be maintained by the party for whose benefit the money should be held against the party holding the money. * * * Lord MANSFIELD, in a famous judgment, (Moses v. Macferlan, 2 Burr. 1005,) speaks of a suit for money had and received ‘as a kind of equitable action;' and though in England this was once regarded as going too far, yet in this country, in part from the convenience of the procedure, in part in some jurisdictions from lack of a distinctive court of chancery, Lord MANSFIELD'S opinion has been accepted in many jurisdictions, and liability maintained for money had and received in all cases in which equity would hold a party responsible for money which he ought rightfully to pay another. And even in England the preponderance of opinion is in conformity with the views of Lord MANSFIELD that, where money is due ex æquo et bono, it may be recovered in an action for money had and received."" 2 Whart. Cont. § 722.

The evidence to show such a state of facts may be introduced under the common count for money had and received. 2 Greenl. Ev.

$117.

It is true, as a general rule, that it must appear from the facts alleged in the complaint that there is a privity of contract between the plaintiff and defendant in order to render the defendant liable in the contract; but there are several exceptions to this rule, one of which is clearly applicable to this case.

In Mellen v. Whipple, cited by appellant, the court said:

"Indebitatus assumpsit for money had and received can be maintained in various instances, where there is no actual privity of contract between the plaintiff and defendant, and where the consideration does not move from the Paintiff. In some actions of this kind a recovery has been had where the promise was to a third person for the benefit of the plaintiff; such action being an equitable one, that can be supported by showing that the defendant has in his hands money, which, in equity and good conscience, belongs to the plaintiff, without cowing a direct consideration moving from him, or a privity of contract between him and the defendant." 1 Gray, 322.