#### Grannis vs. Hooker.

Pleading *complaint in action for money obtained by*fraud— *Objection to admission of any evidence equivalent to a demurrer.*

1. A general objection, at tbe trial, to the admission of any evidence under the complaint, on the ground that it does not state a cause of action, is equivalent to a demurrer on that ground.

2. A complaint which alleged, in substance, that defendant received from plaintiff a specified sum to plaintiff’s use, and also alleged demand and refusal of payment, *held,*sufficient on demurrer.

3. Under such a complaint *it seems*that plaintiff may show that defendant obtained the money from him *by fraud.*

4. If defendant is entitled to have the facts relied upon as the cause of action more fully and specifically stated (which is not decided), he should move to have the complaint made more definite and certain.

APPEAL from Circuit Court for *Fond du Lac*County.

Action to recover money received by tbe defendant to plaintiff’s use.

. Tbe complaint alleges, in general terms, tbe receipt of $535, by tbe defendant to tbe plaintiff’s use, demand of payment, and a refusal to pay over tbe same, or any part thereof.

The answer is a general denial.

In bis opening at tbe trial, tbe plaintiff’s attorney stated tbe facts which be expected to prove, showing that tbe plaintiff was induced to pay over to tbe defendant tbe money sued for, by means of certain false and fraudulent representations made to him by tbe latter, relative to tbe purchase of oil lands for a company of which be was a member.

• Tbe defendant objected to tbe admission of any evidence under tbe complaint, on tbe ground that it does not state facts sufficient to constitute the cause of action stated by tbe plaintiff’s counsel in bis opening.

Tbe objection was sustained and judgment of nonsuit entered ; from which tbe plaintiff appeals.

*Qerrit T.*Thorn, for appellant,

as to tbe right to maintain tbe action in tbe present form, cited 3 Blackstone Com., 162; *66*Sasser v. Wallis,*1 Salkeld. 28 ; *Lochwood v. Kelsea,*41 N. H., 185; *Bliss v. 1 hompson,*4 Mass., 488; *Lyon v. Annable,*4 Conn., 350; *Morgan v. Palmer,*2 Bam. & C., 729; *Sinsdillv. White,*34 Vt., 558; *Plied v. Hides,*25 N. Y., 289; *Tollenson v. Gunderson,*1 Wis., 113; *Woodward v. Hill,*6 id., 143 ; *Simmons v. Putnam,*11 id., 193; *Flanders v. Thomas,*12 id., 410; *Lawton v. How,*14 Wis., 241; *Tenney v. Allen,*16 id., 478. As to tbe sufficiency of tbe complaint, be cited, *Fisher v. Fisher,*5 Wis., 472 ; 2 Greenleaf s Ey., 98 ; *Betts v. Bache,*14 Abb. Pr., 279; *Second Av. JR. JR. Co. v. Coleman,*24 Barb., 300; *Adams v. Holley,*12 How., 326; *Allen v. Patterson,*7 N. Y., 476; *Cudlipp v. Whipple,*4 Duer, 610.

*Gillet & Taylor,*for respondent,

cited, *Wolf v. Stoddard,*unreported; 2 Duer, 670; 35 Barb., 76; 4 Bosw.,. 337 ; 27 Barb., 424; 1 E. D. Smith, 416; 1 Whittaker’s Pr., 849; 12 Legal Obs., 29.

Cole, J.

Tbe question arising in this case is really whether tbe complaint states a cause of action. Tbe complaint contains what, under tbe former system of pleading, would be called a count for money bad and received. On tbe trial, tbe attorney of tbe plaintiff made a statement of facts to tbe court and jury out of which tbe action arose, and then proceeded to support tbe issue on tbe part of tbe plaintiff by calling and having sworn a witness. Whereupon tbe defendant objected to any evidence being given under tbe complaint, on tbe ground that it did not state facts sufficient to constitute a cause of action. This objection was sustained. Tbe case therefore stands in tbe same attitude that it would on a general demurrer to tbe complaint.

We are inclined to bold tbe complaint sufficient on demurrer. According to tbe statement made in bis opening by tbe plain- . tiff’s counsel, tbe defendant procured tbe money sued for by means of fraud in an oil land speculation. It is claimed by tbe defendant that all tbe facts in respect to tbe alleged fraud should nave been distinctly stated in tbe complaint, otherwise *67the plaintiff is not entitled to prove them. On the other hand, it is claimed that all it is necessary the complaint should contain is substantially an allegation that the defendant has received a certain amount of money to the use of the plaintiff, as in the old form of a declaration in *inckbitatis assumpsit.*We are inclined to sanction this latter view, and to hold that the facts which, in the judgment of the law, create the indebtedness or liability need not be set forth in the complaint If the complaint does not state with sufficient certainty the facts in respect to the defendant’s obtaining the money from the plaintiff, the better practice is to move to have the pleading made more definite and certain. But, we really do not see any more reason for requiring the complaint to state all the facts and circumstances about the manner the defendant received or obtained possession of money which in equity and good conscience he ought to pay over to the plaintiff, than, in case of a payment or loan of money, to require the pleading to contain all the facts in respect to such loan or payment. A complaint alleging that the defendant was indebted to the plaintiffs in a specified sum for goods sold and delivered to the defendant at his request, and that such sum was due, was held to be sufficient on demurrer in *Allen v.*Patterson, 7 N. Y., 476. Also a complaint to recover for money lent to and paid, laid out and expended for the defendant, at his request, was held sufficiently definite and certain on motion in *Cudlipp v. Whipple,*4 Duer, 610. The statement of the facts showing that the defendant had received money to the use of the plaintiff, which he was bound to pay over to birrij was of the most general character, in *Bates v. Cobb, 5*Bosworth, 29; *Adams v. Holley,*12 How. P., 326; *Betts v. Bache,*14 Abb. Prac. R, 279; *Sloman v. Schmidt,*8 do., 5; *Goelth White,*35 Barb. R., 76, and yet the actions were sustained.

The case of *Lienan v. Lincoln,*2 Duer, 670, is cited by the defendant’s counsel in support of the position that a general allegation in a complaint that the defendant has received money to the use of the plaintiff is bad on demurrer. But' a just criti*68cism upon this case will be found in note 4, p. 213, Tiff. & Smith, N. Y. Prac. The editor says that, although the head note in *Llenan v.*Lincoln, states such a doctrine, yet that the complaint there alleged that the defendant was indebted to the plaintiff’s assignor “ for moneys, *notes*and *effects*before that time had and received,” while the account annexed showed that more than all the balance claimed consisted of promissory notes received by the defendant, and there was no allegation that these notes had been paid so as to render the defendant liable for their amount. In the case before us it is, in substance, averred that the defendant received from the plaintiff five hundred and thirty-five dollars to the use of the plaintiff; that the plaintiff has demanded the payment thereof, and that the defendant has refused to pay the same or any part thereof. We are inclined to hold this complaint sufficient in substance.

*By the Court*— The judgment of the circuit court is reversed, and a new trial ordered.