Everitt v. Conklin, 90 N. Y., 645. action that could not be properly joined, the defendant should 11 have demurred, and, having failed to do so, he has waived the misjoinder and could not take advantage of it at the trial. (Blossom v. Barrett, 37 N. Y., 434.) If it be assumed that there are certain allegations in the complaint that are irrelevant or redundant, then the defendant should have moved to strike out, and by omitting so to do, and answering the same, he must be held as having accepted the issues thus made. (Quintard v. Newton, 5 Robt., 22; Kellogg v. Baker, 15 Abb. Pr., 286.) The first issue between the parties was whether the note was to apply as a payment, or was for the accommodation of the defendant. The complaint anticipates the defence that it was a payment, and alleges the rescission of the contract before the maturity of the note and before the money was paid by Copley. The sixth subdivision of the complaint avers that by reason of the matters herein before alleged, the defendant became indebted to said Copley in the sum of $588.98, no part of which has been paid. Thus the ground of recovery is placed upon all the facts in the complaint set forth, and the defendant by his answer having admitted or joined issue upon all of them, we do not think the defendant at the trial had the right to require the plaintiff to be limited to a part of the issues thus made in his proofs or his grounds of recovery. The plaintiff did not introduce evidence inconsistent with his claim that the note was an accommodation note. He only claimed that, even if the defence set up was true, he was still entitled to recover on the ground that the contract upon which it was claimed he had given the note was rescinded, and by the default of the defendant before he had paid the money on the judgment recovered on the note; and in so doing he kept within the issues made by the pleadings, and which issues the defendant had accepted by going to trial thereon. We therefore conclude that no error was committed in refusing to require the plaintiff to elect what theory he would base his right of recovery upon, and confine him thereto in his proofs. 12 13 14 15 Everitt v. Conklin, 90 N. Y., 645. The Supreme Court at General Term affirmed the judgment and order on substantially the same ground without discussing the question of pleading in detail. The Court of Appeals affirmed the judgment and order. FINCH, J. We agree with the learned counsel for the appellant in the fundamental propositions of his argument, that there was but a single cause of action stated in the complaint, and that it could not be displaced on the trial by one different and inconsistent with it, and not within the scope of the pleading. But 16 we disagree with him as to what the essential cause of action. stated in the complaint really was. He describes it as an action to recover moneys paid on an accommodation note. We deem it an action for money had and received by the defendant to the use of the plaintiff's assignor, and which, ex aequo et bono, the defendant ought not to retain. The details of fact and the special circumstances which go to establish and prove this cause of action, may be very various and differ widely while yet such cause of action may remain the same. It was upon such a theory that the complaint was framed. Practically, the plaintiff said : 17 The defendant has got my money without any consideration and without any legal or equitable right to retain it, and refuses to pay it back on demand; and this is true; because I made and paid a note for his accommodation; and even if it should be found, as he is likely to claim, that the note was applied on a land contract, still I insist that my cause of action remains and the money was mine and not his; because I rescinded that contract, as I lawfully might, and so am still entitled to recover for money had and received. We can see no impropriety in such a 18 mode of pleading. It states all the facts, and states them consistently with one cause of action and one right of recovery, whether the facts out of which it arose are found to be in accord with either the plaintiff's or the defendant's version of them. There is, therefore, no ground for the complaint that the trial court submitted to the jury the double question whether the note was accommodation paper; and, if not, and found to have been applied on the contract, whether the latter had been lawfully rescinded for the failure of the defendant to perform, so Everitt v. Conklin, 90 N. Y., 645. that the cause of action to recover back the money paid, re- 19 mained. And it follows also that the trial court was right in refusing to require plaintiff to elect whether he would proceed upon the theory of an accommodation note or that of a payment on the contract. 20 But a further objection is taken. The defendant's counsel asked the court to charge that, "If the agreement to pay $3,000 before the 1st of January was made at or before the making of this land contract, and this five hundred dollar note was a payment in pursuance of said agreement, then it was a payment upon the contract." The court declined to charge further than or differently from what it had already charged, and an exception was taken. This refusal is now alleged as error, and upon the ground that, whether the agreement was valid or not, its existence was material upon the question whether the note was in fact given to apply upon such promised payment. But it is apparent that the fact of such an agreement antedating the note in existence when that instrument was made is all that was material for the purpose declared. If such an agreement was in fact made before the note was executed it is of no consequence 21 whether it was concluded before or after the land contract was signed. Now the defendant was allowed to prove and did prove that such an agreement was made at the time the land contract was executed, but after its signature, and also Copley's admissions of that fact. On the other hand, Copley testified that the agreement was conditioned upon his being able to get the money. Both parties conceded that the agreement antedated the note and was in existence when that was made; and the controversy between them respected not its date, but its terms. Now the trial court called the attention of the jury to Conklin's claim of the existence of this agreement and repeated to them his version of what it was, and submitted to them the question whether the note was without consideration or was applied upon the land contract. The defendant got the full benefit of his claim that such an agreement antedated the note; and that was all that was material to characterize the latter transaction. Substantially, the court had already charged the defendant's proposition except as to the date of the agreement. All the parties agree that the 22 Everitt v. Conklin, 90 N. Y., 645. 23 conversation about the advance of the three thousand dollars occurred after the contract was executed. The defendant's witnesses proved that explicitly, and Copley says the same thing. He testifies that it was after the contract was signed, though before a duplicate was made and he got his copy. The court steadily refused to admit evidence of an agreement preceding the contract which varied its terms, and there was no evidence in the case of such an agreement. Indeed, the defendant's counsel expressly claimed that the agreement to advance $3,000 upon the land contract was "consummated after" that contract was 24 made, although some conversation on the subject preceded it (fol. 91 of case). And the defendant himself so testified. The request to charge, therefore, was properly refused for the double reason that it assumes that the agreement for an earlier payment was made "at or before" the land contract; and also because the material part of the request, that if the note was given in pursuance of that agreement it was a payment upon the contract, had already been substantially charged. Whether the note was so given was expressly submitted to the jury, and they were told 25 that if it was, if Copley made it for the purpose of applying on the contract, then the jury must come to the next question in the case and determine whether the contract was rescinded. There was, therefore, no error in the charge in this respect, and the exclusion of the conversations preceding the contract was defensible for the reason that they were wholly immaterial, since the agreement as to an advance was conceded by the defendant's counsel to have been consummated after the land contract was executed, and he was permitted fully to prove its existence and terms. We think the recovery was right. 26 The judgment should be affirmed with costs. Roberts v. Ely, 113 N. Y., 128. ROBERTS v. ELY. New York Court of Appeals, 1889. [Reported in 113 N. Y., 128.] 1. Money which the seller of goods collected from insurance, upon destruction of the goods before delivery, and belonging equitably to the * buyer, constitutes a cause of action for money had and received; and the statute of limitations runs accordingly. 2. Whenever one person has money which he cannot conscientiously retain from another, the latter may recover it in this form of action, if the mode of trial, and the relief which can be given in a legal action are adapted to the exigencies of the particular case, and the transaction is capable of adjustment by that procedure, without prejudice to the interests of third persons. 3. Privity of contract is not essential. 4. The action lies irrespective of whether the original possession by defendant was rightful or wrongful. 5. The fact that there was a relation of trust between the parties does not require a resort to equity. 6. Nor does the fact that plaintiff is ignorant of the amount received, and asks an accounting, if the amount depends on simple facts ascertainable as readily in a legal as in an equitable action.† 7. In such a case the limitation applicable to legal causes of action must apply. This action was against executors. The features of the complaint essential to the question of pleading may be concisely stated thus : I. That in the month of, etc. [about ten years before the commencement of the action], one G. and plaintiff purchased from the testator 1,611 half chests of tea at the agreed price of $14,000, said tea then being in the custody of a specified corporation. II. That about the same time it was agreed between G. and plaintiff and said company, that the company should hold the tea in store for them and insure it for their benefit to the amount of the cost value; that it was subsequently represented to them * As to who bears the fire risk pending an executory contract, see note in 23 Abb. N. C., 349. + But an equitable action may lie, and the equitable limitation apply, if the complaint shows that defendant was under a fiduciary duty to keep and render accounts. Carr v. Thompson, 87 N. Y., 160; Marvin v. Brooks, 94 id., 71. 1 2 |