
    Donald Mann v. George B. Morewood, John R. Morewood, and Marshall Lefferts.
    A complaint must state the facts upon which the plaintiff relies, as establishing his right to maintain the action, not, instead of those facts, the inferences which the pleader may deem to be conclusions of law.
    It belongs to the court to draw the legal conclusions from the facts which are alleged to constitute the cause of action, and to enable the court to perform that duty, all those facts must be stated in the complaint.
    A pleading under the code must be so expressed as to be plain, that is, intelligible to those who understand the language, and hence the words are to be understood in their ordinary and popular sense.
    When a complaint alleges an overpayment, and claims judgment for the sum overpaid, the averment will be construed to mean an overpayment in money, and can only be sustained by proof of that fact.
    The satisfaction of a debt by the delivery of stock is not necessarily equivalent to a payment in money, computing the stock at par.
    The relief, to which a plaintiff may be entitled, who in such a ease has delivered by mistake, more stock than the defendant ought to have received, must depend upon the nature of the transaction, ns a settlement by compromise, or full satisfaction, and upon the value of the stock, at the time, or when its return was demanded.
    Hence to enable the court to judge of the relief that ought to be given, the transaction, in all its material circumstances, must be set forth in the complaint.
    Judgment dismissing complaint, affirmed, with costs.
    (Before Sandfokd, Duer, and Bosworth, J. J.)
    April 19 ;
    May 15, 1852.
    This was an appeal from a judgment entered at special term, upon the report of a referee, dismissing the complaint, with costs.
    The following were the pleadings in the case.
    The plaintiff, Donald Mann, complains :—
    1st. That the defendants do now, and have for a long time, composed a firm, as partners, doing business in the city of New York, under the name and style of Geo. B. Morewood & Co.
    2d. That one Henry O’Rielly had large dealings with said' defendants prior and up to the 26th day of September, 1850, during which period the said defendants furnished telegraph wire for said O’Rielly, and also, the said defendants held certain promissory notes against said O’Rielly; that on the said 26th day of September said defendants rendered their account with said O’Rielly, which account showed an indebtedness to the defendants of $16,150 55 ; that said O’Rielly believing said account to be correctly stated, paid the said amount to the defendants, but that he, O’Rielly, subsequently learned that in said account he had been overcharged, and had overpaid the sum of $1990 34, charged in said account as due said defendants, for a note which they rendered as due them by the said O’Rielly.
    3d. That since the said over-payment as aforesaid, the said O’Rielly has stated the said error to the said defendants, and demanded of them a re-payment of said $1990 34, which the said defendants have refused to repay.
    4th. That on the 16th day of December, 1850, and since the demand of repayment as aforesaid, the said O’Rielly, under his hand and seal, for a good and valuable consideration, duly assigned his claim against the said defendants for said over-payment to the plaintiff in this action. Í
    Wherefore, the plaintiff demands judgment against the said defendants for one thousand, nine hundred and ninety dollars and thirty-four cents, with interest thereon, from the 26th day of September, A. D. 1850.
    The defendants, George B. Morewood, John R. Morewood, and Marshall Lefferts, answer the complaint of Donald Mann, plaintiff, as follows, viz. :—
    That it is true and they admit that the said Henry O’Rielly was indebted to them before and on the 26th day of September, 1850, in a large sum for certain telegraph wire sold and delivered to him for the construction of the line of the New York State Telegraph Company, and also in seven promissory notes made by him to them for value received, and that the defendants had rendered an account to the said O’Rielly charging him as follows, viz.:—
    1850, Sept. 10th. To balance of acct. for the N. Y. State Telegraph Co., - - $11,473 25 “ 16th. To H. O’Rielly’s Notes per acct., 4642 10 To 16 days' interest on $11,473 25 at 7 per c., - 35 20 $16,150 55
    And the defendants upon information and belief further say, that the said O’Rielly on the said 26th day of September, 1850, proposed to these defendants to transfer to them in satisfaction of said account and demand, which was settled and admitted by the said O’Rielly, stock of the corporation called the New York State Telegraph Company, at the rate of ninety dollars for each share of one hundred dollars, and these defendants did then agree to receive, and did receive, for their said account, an.assignment or order of the said O’Rielly upon the said New York State Telegraph Company for one hundred and seventy-nine shares of the capital stock of said company, which order was accepted by the officers of said company, and certificates for said one hundred and seventy-nine shares were issued to these defendants, and these defendants deny that said account or any part of it was ever paid by said O’Rielly in any other way than by said order for stock received as aforesaid.
    And these defendants further upon information and belief deny that the sum of one thousand nine hundred and ninety dollars and thirty-four cents, or any other sum, was ever charged in said account for a note as alleged in the complaint; but they upon such information and belief admit that in the charge for telegraph wire in said account was included by mistake, and not otherwise, a charge for one hundred and nine coils of wire, amounting to one thousand nine hundred and ninety dollars and thirty-four cents,which was for certain wire sold and delivered for the construction of the same telegraph line to one L. W. Jerome, and justly chargeable to him, and not to the said O'Rielly, which, by a mistake, had been charged in the said O’Rielly’s account.
    And they further upon information and belief deny that the said O’Rielly ever discovered or stated to them the said or any error in their account, but on the contrary, they aver that the said error was first discovered by them after the receipt of said stock, and communicated to said O’Rielly with an offer to return to him the proportionate excess of stock transferred by him, and afterwards and before the commencement of this action, and before and on the 14th December, 1850, the defendants transferred back to the said O’Rielly on the books of the said telegraph company, twenty-two shares of said capital stock, and procured a certificate in the name of said O’Rjelly for said twenty-two shares, and tendered to said O’Rielly said certificate for twenty-two shares, and ten dollars and thirty-four cents in cash, which said O’Rielly refused to receive, arid, thereupon, they gave notice to said O’Rielly that said certificate and stock and cash remained ready for him at any time, and the same ever since have been, and now remain in their hands ready to be surrendered and paid and delivered, and they deny that they ever refused to return the same.
    And the defendants further answer that they have no knowledge or information sufficient to form a belief whether the said O’Rielly assigned his claims to the plaintiff in manner and form as is alleged in the complaint, and they therefore deny the said allegations, but they say, upon information and belief, that they have not any information or notice of any such assignment, (if any there has been,) before the commencement of this action.
    The .plaintiff to the defendants’ answer replies :
    1st. That said Henry O’Rielly did not offer to give, or give, either stock or any order for stock in the New York State Telegraph Company, but did give and the defendants did receive in full payment of their claim, a certificate or instrument entitling defendants to claim one hundred and seventy-nine shares in the New York State Telegraph, then being built by said O’Rielly, when an incorporated company should be organized, and should receive said telegraph and empower their officers to issue stock.
    2d. Plaintiff has no information sufficient to form a belief whether said New York State Telegraph Company ever issued stock upon such or any order, but if any stock was issued, it was without authority by the officers of said company.
    3d. Plaintiff has no information sufficient to form a belief whether any stock has been transferred to said O’Rielly on the books of said company and now stands in his name.
    4th. Plaintiff states that defendants never offered to return said certificate or instrument delivered to them as aforesaid, or any part thereof.
    5th. Plaintiff insists that from the time said O’Rielly made payment to the said defendants of their claim as aforesaid, to the time when they offered to deliver to said O’Rielly stock to refund the amount so overcharged as aforesaid, the said stock and the certificate or instrument delivered to them was greatly depreciated in value, and as much as fifty per cent, of the par value thereof, as plaintiff verily believes.
    Upon these pleadings, the cause was brought to a hearing before Alexander S. Johnson, Esq., sole referee, and upon the trial, after the assignment of his claim to the plaintiff was proved, Henry O’Rielly being sworn as a witness on the part of the plaintiff, testified as follows :—
    The defendants, George B. Morewood & Co. had an account against me in September, 1850, for about $20,000. I paid them in an order, of which this paper is a copy. The following is a copy of such order :
    New York, Sept. 26,1850.
    This certificate entitles George B. Morewood & Co. to one hundred and seventy-nine shares of stock in the New York State Telegraph Line, for value received by me, at $100 per share on settlement of account to this date.
    Henry O’Rielly.
    I have their receipt, taken by me at the time.
    The receipt was then read in evidence by the plaintiff’s counsel, and the following is a copy thereof.
    New York, Sept. 26th, 1850.
    Received from Henry O’Rielly, Esq., his order on the New York State Telegraph Co., for one hundred and sevqnty-nine shares of $100 each, to be issued to us ; also his order on the Boston and Portland Line Telegraph Co., for sixty-two shares of $100 each, to be issued to us, which is in full for all demands to date—being for wire furnished, and certain notes amounting to $4642 10, beyond the bills of wire.
    Geo. B. Morewood & Co.
    The assignment of this claim was given by me at or about the date of the assignment.
    The witness, on being cross-examined, testified :■ This assignment had nothing to do with my general assignment—the deeds of trust of the 10th and 26th December, to Mr. Mann.
    This was to pay Mann money I owed him on account of the construction of the New York State Telegraph Line.
    The direct examination of the witness being resumed, the plaintiff’s counsel asked the witness the following question :
    What was the value of the certificates you gave them ?
    The defendants’ counsel objected to the question.
    The referee sustained the objection, and the plaintiff’s counsel excepted.
    The plaintiff’s counsel then rested his case, whereupon the defendants’ counsel moved for a non-suit, which was granted.
    To which decision the plaintiff’s counsel excepted.
    Upon the report of-the referee, judgment was entered for the defendants for their costs, adjusted at $111 69.
    
      
      J. H. Rodman, for the plaintiff.
    The referee erred in dismissing the complaint, since, upon the facts proved, the plaintiff was certainly entitled to some relief, if not to a judgment for the whole sum demanded by the complaint ; but I contend that we were entitled to judgment as demanded, and that our complaint was fully sustained by the evidence. The order or certificate for the stock having been given and received in payment as money, must be treated as money for every purpose. The sum of $1990 having been overpaid in this manner by mistake, O’Rielly was entitled to recover it back. As the law formerly stood, the,whole sum might have been recovered back in an action of assumpsit, and it is the form of the action, not the right of action, that the code has changed. It has even been held that the value of land taken as money may be recovered as money paid, or had and recovered—a fortiori the value of stock, which for so many purposes, is money and circulates as such. I rely upon the following authorities— Bardsley v. Root (11 John. 464), Waite v. Leggett (8 Cow. 195), Ainslie v. Wilson (id. 662), and Tinslar v. May (8 Wend. 561). Nor has any real defence been set up to our demand. The only defence in the answer is the tender of 22 shares and of a small sum of money in addition. But O’Rielly was not bound to receive the shares three months after the settlement, when they may have greatly depreciated. He had given an order, and was not bound to receive certificates. He was entitled either to receive back the order which he gave, or the value of the excess of shares which it embraced, according to the valuation put upon them by the parties in the settlement.
    
      H. S. Dodge, for the defendants.
    The plaintiff was rightly non-suited. He gave no evidence whatever, in support of his demand as stated in the complaint. As stated, it is a money demand upon contract, not for an over-delivery of stock, but an over-payment of money. Hence, the evidence given, had it, in other respects, made out a case, was not admissible in this action. (Code, § 275, id. § 129.) Nor is the plaintiff helped by his reply, for the reply is a complete departure. It sets up a new case, and gives up the case made by the complaint. Yet even if we look to the reply, it shows that the plaintiff has no right to maintain an action. It admits that the defendants offered to return the excess of shares, and does not aver that any demand either for the original order or the stock that it covered, or for the excess of shares, was ever made by the plaintiff. Yet it is plain, that to enable the plaintiff to recover at all, such an averment was indispensable, and the proof, so far from supplying the defect, is directly the reverse. There was, in fact, no demand. We further contend that in no form of action could the plaintiff convert the defendants’ liability to return the excess of stock received by mistake (admitting that such a liability legally exists), into a contract to pay any price therefor, either its actual value or the valuation at which the defendants agreed to take the residue for a debt, otherwise desperate. (Wilt v. Ogden, 18 John. 56; Battle v. Rochester City Bank, 3 Corns. 88; Lewis v. Lozee, 3 Wend. 79.) Upon every ground, therefore, the judgment at special term should be affirmed, with costs.
   . By the Court.

Duer, J.

Although in compliance with the wishes of the plaintiff’s counsel, we reserved this case for further consideration, our conviction, as expressed upon the argument, is unchanged—that the referee, had he refused to dismiss the complaint, would have committed a grave error, which we should have felt it our duty to correct. There was an entire failure of the proof that the plaintiff was bound to give.

A complaint must, in all cases, be so framed and expressed as to convey to the mind of the defendant full information of the facts which are relied on as the ground of the action, and in judging of its meaning the words used are to be understood in their ordinary and popular sense. It is this that the code evidently means in requiring that the complaint shall be “ a plain and concise statement of the facts constituting the cause of action.” A plain statement is one that may be readily understood, not merely by lawyers, but by all who are sufficiently acquainted with the language in which it is written.

The plain and obvious meaning of this complaint, that which its words immediately and naturally suggest, is that O’Rielly settled the account rendered by the defendants by paying to them, in money, the whole amount they claimed to be due, and that it is a sum of money which he then over-paid, in consequence of an over-charge in their account, that the plaintiff, as his assignee, now seeks to recover. The evidence, however, shows, and the plaintiff’s reply, in effect, admits, that no money whatever was paid, but that the settlement between O’Rielly and-the defendants was wholly effected by an order given by him for the delivery of stock. The variance between the complaint and the proof is, therefore, manifest and fatal, unless we are bound to give a construction to the former widely different from that which, it is not denied, its terins plainly import.

That we are so bound is the argument on the part of the plaintiff. The argument is, that a payment in stock is, in judgment of law, a payment in money,and may consequently, with entire propriety, be described as such in the complaint; and in support of the argument, we were assured that the supreme court has recently decided that a mode of pleading which substitutes a legal interpretation of the facts constituting the cause of action for the facts themselves, is not only reconcilable with the provisions of the code, but is that which, in all cases, it is desirable should be followed. According to this argument, therefore, and the decision or decisions to which we were referred, this complaint would have been good, and would have been sustained by the proof actually given, had it merely stated that the defendants were indebted to O’Rielly for the sum demanded, as money had and received by them to his use, and that this claim had been assigned to the plaintiff, since it is quite certain that money over-paid by mistake in a settlement of accounts, is, in judgment of law, money had and received by the creditor to the use of the debtor.

We cannot, however, without renouncing entirely the exercise of our own judgment, assent to the argument of the counsel, or follow the decision upon which it seems to have been founded. The language of this court, and I believe of all its judges, from the time the code has been in operation, has been uniform, that a complaint must set forth all the material and issuable facts which are relied on as establishing the plaintiff's right of action, and not the inferences from those facts, which, under the advice of his counsel, he may deem to be the conclusions of law. To draw the proper conclusions from the facts which are relied on as constituting a cause of action, or a valid defence, is the exclusive province and duty of the court, and to enable the court to discharge that duty, the facts themselves, not the conclusions that are supposed to flow from them, must be stated in the pleading, without prolixity, but with reasonable fulness and certainty. Every pleading under the code must be so framed as to raise upon its face the question, whether, admitting the facts stated to be true, the plaintiff or defendant is entitled to judgment, instead of leaving that question to be raised and determined upon the trial, as it necessarily must be left in all cases where the facts are concealed, and their legal construction, or supposed legal construction, alone is stated. > There can be no demurrer to a count for money had and received, and if such a complaint is good, every pleading under the code may be so framed as to leave the adverse party in total ignorance of the facts meant to be proved, and yet be safe from a demurrer. Thus, the manifest design of the code in compelling parties to plead specially, by requiring the facts to be stated, would be completely frustrated, and a system of pleading be introduced which, as universal in its application, would be far more obscure and deceptive than that which has been abolished.

We deem it needless to pursue the discussion. We believe that the construction to which we must adhere, is not only necessary to carry into effect the principal and governing intent of the code, but that there is no other construction that can be reconciled with its language. The “ facts ” which are required to be stated as “ constituting the cause of action,” can only mean real, traversable facts, as distinguished from propositions or conclusions of law, since it is the former, not the latter, that can alone, with any propriety, be said to constitute the cause of action. It may be true, that the code has not carried out its own principles to their legitimate result, by requiring the parties, in all cases, to conduct their pleadings to a definite issue, but this is certainly no reason for violating those principles in the construction of the pleadings that are required. We are not to repeal the code, by judicial construction, because we may believe it to be imperfect.

In affirming, as we must, the decision of the referee, that the evidence given, was not admissible in support of the complaint, we are not to be understood as assenting to the rule of law, by which alone the complaint, in its actual form, was sought to be justified. We can by no means admit, that a delivery of stock is, in all cases, equivalent in law, to a delivery of money, corresponding in amount with the agreed value of the stock, when received. So far as the mere satisfaction of a debt is concerned, it is so, but whether it is so, as the measure of a liability, which the delivery creates, must depend entirely upon the nature of the transaction, and the actual intentions of the parties. If the settlement between O’Rielly and the defendants, was in truth, as has been alleged, nothing more than a compromise of a very doubtful debt, the application of the supposed rule might lead to the greatest injustice, since its effect might be to compel the payment, by the defendants, of a sum of money, perhaps exceeding the whole real value of the stock which they received. The shares which they consented to receive at ninety per cent., may not have been worth five, perhaps, may not have been convertible into cash at all.

We shall not now express any opinion upon the nature or extent of the relief to which the plaintiff, as the assignee of O’Rielly, may be entitled. It is sufficient to. say, that the dismissal of this complaint will be no bar to any relief, legal or equitable, to which his title in a future suit may be established.

The judgment, upon the report of the referee, is affirmed, with costs. 
      
       In Nightingale and others v. Davisson, (5 Burr. 268-9,) it was held by Lord Mansfield and his brethren, that East India stock, which the defendant, as against the plaintiffs, was not entitled to retain, could not be treated as money, in an action for money had and received; the proper remedy was in equity.
     