Jones v. Winsor

22 S.D. 480, 118 N.W. 716 (1908)


The Jones' (P) employed Winsor (D) as their attorney. P wanted a railway license from the city council. P had to pay $2,500 to the city, and he gave the money to D along with $130 more for D to consummate the transaction. The city refused to issue a license to D and returned the monies to D. D took the funds and D charged $1,250 for his services by rendering a bill and the balance of the monies. P sued and claimed that D's services were worth less than $250 and that the money received by D was for the benefit and use of P. D still had the $1,000, but had returned the balance of the monies to P. The complaint alleged that P asked D to return the money, that he refused to do so, and that D had wrongfully and fraudulently converted the $1,000 to his own use. D demurred; the complaint does not state facts sufficient to constitute a cause of action under trover or conversion (it did not allege that P owned the $1,000 at the time that D allegedly converted it). D also claimed a defect in the complaint as it could not be determined if P was suing for conversion or in assumpsit for money had and received. P replied that the action was for money had and received, and the rest was surplusage. The court did not grant the demurrer and D appealed. The court states that it could not determine from the complaint whether P intended that the action should be for money had and received or conversion.