Downing v. Mulcahy
Downing v. Mulcahy
Opinion of the Court
Action for money had and received by defendants, as brokers, for the use of plaintiffs. The cause was tried by the court without a jury, and plaintiff had judgment, from which, and from the order denying defendants’ motion for a new trial, this appeal is taken.
1. Defendants demurred to the complaint on the grounds: (1) Insufficiency of facts; (2) want of jurisdiction of the subject matter of the action and of the parties; (3) for ambiguity and uncertainty. The objections on the last two grounds alone are insisted upon. Want of jurisdiction is claimed because “the complaint does not allege the place where the alleged cause of action accrued.” The complaint is in the usual form for money had and received by defendants as brokers for plaintiffs between certain stated dates, and we think the pleading sufficient. It was not essential to
2. It is claimed by appellants that “plaintiff failed to establish his ease by a preponderance of evidence.” Plaintiff testified to certain statements of account between the parties rendered by defendants to plaintiff from time to time and up to November 1, 1894, which showed a balance due plaintiff at that time of $3,883.40. He also testified to certain credits to which defendants were entitled, leaving an actual balance due plaintiff of $431.45, for which amount the court gave judgment. There is much evidence in the record explanatory of the nature of the brokerage business, out of which the cause of action arose, and the state of the account between the parties. At most this evidence may be said to show its preponderance to be 'against plaintiff’s claim. But we cannot decide upon the weight or preponderance of the evidence. There was sufficient evidence to sustain the findings, and, as the findings sustain the judgment, we think the judgment and order should be affirmed and so advise.
We concur: Britt, C.; Haynes, C.
For the reasons given in the foregoing opinion the judgment and order are affirmed.
Reference
- Full Case Name
- DOWNING v. MULCAHY
- Status
- Published
- Syllabus
- Money Received.—In an Action for Money Received it is not essential to jurisdiction of the parties or of the subject of the action to allege where the cause of action accrued. Money Received.—It is not Essential to a Complaint in an action for money received that it recite every detail out of which the cause of action arises, since, under Code of Civil Procedure, section 454, defendant can demand a bill of particulars, if the complaint is too general. Appeal—Weight of Evidence.—The Appellate Court cannot decide on the weight of the evidence.