Hamberger-Polhemus Co. v. Hind, Rolph & Co.

Plaintiff sued upon a complaint pleading two causes of action “for breach of contract,” one in the form of a common count for money had and received and the other based upon five written contracts for the purchase and sale of sugar. The defendants’ demurrer to the complaint was sustained without leave to amend and the plaintiff has appealed upon the judgment-roll.

The first alleged cause of action pleads that the defendant is indebted to the plaintiff in the sum of $613.25 for money had and received by said defendant for the use of plaintiff. This pleading of an indebtedness under the old form known as a common count is sufficient against demurrer under the rule of Pike v. Zadig, 171 Cal. 273, 276 [ 152 Pac. 923 ], and cases there cited. The general demurrer should, therefore, have been overruled upon the authority of that case and the special demurrer, inasmuch as it merely raised the point of uncertainty as to how the indebtedness arose, should likewise have been overruled upon the same authority (p. 277), the remedy of the defendant being to demand a bill of particulars.

The second cause of action alleged that on June 19, 1924, plaintiff and defendant entered into two…