woman, so far as the power to assert or maintain her rights in a court is concerned, should not be affected by coverture; and the lawin that respect places her where she was before the marriage. It is true this right of action grows out of a relation only arising where the married relation exists, but I have but little doubt that it comes within the spirit and intent of the law, and that it was the pnrpose of the legislature to permit a married woman to sue for a violation of her personall'ights, although such rights grow out of the marital relations. It should be remarked, in conclusion, that it is very doubtful if the words or conduct imputed to the defendant are sufficient to base this action upon, with the exceptions of the words charging the plaintiff with adultery. Lynch v. Knight, 9 H. L. 577, cited in Westlake v. Westlake. As to this particular charge, the time and place and, if possible, the words spoken should be set out in the petition, so that the defendants may be informed exactly what charge they are required to meet. The demurrer will be Bustained as to the latter objections,-that is, the insufficiency of the allegations in reference to the words spoken, as 1 have indicated,-and overruled as to the other question, with leave to the plaintiff to amend within 20 days.
CRANE 'V. RUNEY.
(Oircuit Oourt, D. Oregon. January 18,1886)
MONEY RECEIVED ON ERRONEOUS JUDGMENT.
Where money is received on an. erroneous by a party thereto, the law, on a reversal of the same, raises an obligation against such party to restore the amount, which obligation may be enforced by an action as for money had and received to the use of the plaintiff therllin.
CASE IN JUDGMENT.
In a suit to enforce a mechanic's lien, the parties thereto, with others having liens on the same property, were made defendants, and the court,by·its decree directing the sale of the property and the distribution of the p.roceeds among the parties, postponed the payment of the plaintiff's claim to .that of the defendants, which portion of the decree the supreme court, on appeal taken after the confirmation of the sale and the distribution of the proceeds, reversed, and also ordered a resale. Held that, on the reversal of the erroneous decree, the defendant, in contemplation of law, held the money wrongly received by him thereon for the use and benefit of the plaintiff, to whom it should have been originally adjudged and paid, and that he might maintain an aCtion to recover the same as for money had and received to his use; and the order of resale did not limit or affect his right in this particular.
Action to Recover Money. Claude for plaintiff. Raleigh Stott, for defendant. DEADY, J. This action is brought by the plaintiff, a citizen of California, to,recover from the defendant, a citizen of Oregon, the sum of
$1,216.25, had and received by the defendant to the use of the plaintiff. The defeudant demurs to the complaint, for that it does not state factfJl sufficient to constitute a cause of action. It is alleged in the compl'aint that on March 19, 1878, the defendant received from the county clerk of Clatsop county, to and for the use and benefit of the plaintiff, said sum of money, which of right should have been paid to him; that such clerk received said money as the clerk of the circuit court for said county from the sheriff thereof, as a part of the proceeds of the sale of certain real property theretofore sold by him to G. W. Parker, on a decree of said court, in a suit wherein J. C. Trullinger was plaintiff, and N. Kofoed, Mary Kofoed, G. W.Parker, and the parties hereto were defendants ; that the money paid to defendant as aforesaid was so paid in accordance with an erroneous provision in said decree, which, on appeal to the supreme court of Oregon, was thereafter, on August 25, 1879, so modified that the plaintiff was thereby adjudged to be entitled to the said $1,216.25, bnt the defendant still retains. the same and refuses to pay it over to the plaintiff, although often requested so to do. is well settled that on the reversal of a judgment an obliThe gation arises on the part of the party to the record who has received the benefit of the erroneous judgment to make restitution to the other party of or for what he has thereby lost. 'rhe reversal of the judgment gives a right of action as between the parties thereto, and creates an obligation against the one who has had the benefit of the same to restore to the other what he has thereby lost. At one time it was the practice to obtain this restitution, either by a writ of restitution when the record showed what had been lost or what money had been paid, and in other cases by a scirefacias quare restitutionem non, issued out of the court where the judgment was given. But with the growth of the action for money had and received, these proceedings fell into disuse, and the obligation to restore has long since been enforced by action; 'and under the Code there is no other remedy that I am aware of. Bank of u. s. v. Blink of Washington, 6 Pet. 17, 19; Clark v. Pinney, 6 Cow. 299. And see Yates v. Joyce, 11 Johns. 140; Raxter v. Poppleton, 9 Or. 482; Rapalje & S. Law Dict., "Restitution," "Scire Facias." Upon the facts stated in the complaint, this seems to be a clear case for recovery. There appears to have been a decree of the circuit court for Clatsop county, ascertaining and determining the rights of the parties in the suit mentioned therein, in a fund then in court or to be there, ariRing from the sale or disposition of certain property in pursuance of the order of the court, which decree erroneously gave the sum now sued for to the defendant herein instead of the plaintiff, and for that reason was reversed on an appeal to the supreme court. By this erroneous decree the plaintiff 1m:: $1,216.25 that the defendant obtained ; but, as Boon as i,t was reversed, the. law created an obligation against the latter to return what it then appeared did
not belong to him but to the plaintiff, for whose use and benefit the defendant is thereafter deemed to have receivecl it. On the argument, however, counsel for the defendant undertook to put a new face on the facts by citing and reading the opinions of the supreme court in the case of Trullinger v. Kojoed, 7 Or. 228, and 8 Or. 436. But while a reference to these opinions may give the court a knowledge of some matters connected with said case not contained in the complaint, they cannot be allowed to vary the legal effect of the facts stated therein. The case before the court is confined to the facts stated in the complaint. But really there is nothing in the ports of Trullinger v. Kofoed contrary to the case stated in the com· plaint. From the report in 7 Or. it appears that a suit was brought by Trullinger to enforce a mechanic's lien against certain property of N. Kofoed and Mary, his wife, in which suit G. W. Parker and B. G. Crane, mortgagees of the same property, were made defendants, and also Peter Runey, who claimed a lien thereon by virtue of a mechanic's lien and a mortgage for the same debt,-the former being prior in time to Crane's mortgage and the latter subsequent thereto. And thereupon a controversy arose between the plaintiff and defendant hel'einas to which of them had the prior lien. The court below de· cided the question in favor of Runey, and directed the proceeds of the sale of the property, which amounted to $4,218.20, to be distributed accordingly, which was done; but, on an appeal to the supreme court, it was decided that Runey, by taking a note and mortgage for his debt, waived his mechanic's lien, and the decree in this respect was reversed, and direction given for a decree postponing the payment of Runey's claim to that of Crane's. From the report of the case in 8 Or. it appears that the appeal was not taken by Crane until after the order confirming the sale was made, and that it was then taken both from the decree determining the rights and priorities of the par· ties, as well as such order; and that, on the hearing, the court re· manded the case, with the further direction that a resale be made. The court below made the order for resale in pursuance of the man· date, but it does not appear that any such sale has been made; and counsel for the defendant insists that the plaintiff'sremedy is by means of this resale. But unless the property will sell for more than it did before,-and it is not likely that it will,-a resale will be of no ben· efit to anyone, and a useless expense to whoever undertakes it; and the plaintiff is under no obligation to resort to it, if it would. The property brought enough to pay his claim, or so much of it, at the first sale. But this amount,-$1,216.25,-instead of being paid to him, was, in pursuance of the erroneous decree, paid to the ant, who is, by the reversal of such decree, bound to restore the same to the plaintiff, without any reference to the order of resale, with interest from the date of such reversal. The order of resale was presumably made for the benefit of the defendant, whose claim is now v.26F.no.1-2
postponed to all the others. By this means he may save himself by bidding at such resale a sum sufficient to cover his claim. At the first sale there was no inducement for him to do so, as the sum bid covered his claim where it then stood j and probably the owner of the property has a right to have this resale made, with a view of further satisfying the demands against him on account of it. But so far as the sum in controversy in this case is concerned, the plaintiff has no interest in the question. In contemplation of law, he has already received this amount, and cannot get it again, either from the property or its owner. He must look to the defendant, who received it in fact, but, as it turns out, only for his use. The demurrer is overruled.
CHARLESTON FRUIT Co. V. BOND.
(Jo-wrt, 8. IJ. Georgia, E. IJ.
November Term, 1885.)
CoNTRACT-BREACH-MEASURE OF DAMAGES-PENALTY.
Notwithstanding the apparent conliict of authorities. it is clear that where the damages for the breach of all the stipulations of a contract are uncertain in their character and cannot be readily ascertained, the sum fixed will be regarded as the settled and agreed damages; but where some of the breaches are ascertainable and some not, as it is a penalty as to some, it is a penalty as to all. It would be manifestly at variance with the principle of just compensation, where there are many stipulations in a contract, some trivial and some grave, some ascertainable In damages and some not, to hold that it was intended a large sum should be forfeited for any breach.
SAME-AMOUNT TO BE FORFEITED.
At Law. It was agreed that the court should direct the verdict. Garrard !1: Meldrim, for plrcintiff. Denmark et Adams, for defendant. SPEER, J. The plaintiffs are dealers in tropical fruits in the city of Charleston. The defendant deals in the saIDe products in the city of Savannah. A contract was made between these parties by which it was agreed that the plaintiffs, from November 1, 1884, to May I, 1885, would sell to the defendant, and deliver on board the cars at the Charleston & Savannah Railway depot, in Charleston, from each vessel consigned to the plaintiffs not less than 200 nor more than 5JO bunches of bananas, and not less than 2,500 and not more than 5,000 cocoa-nuts. For January, February, March t and April, 1885, not less than 200 and not more than 500 bundles of bananas, and cocoa-nuts to a number optional with defendant, hut not to exceed 5,000. The defendant agreed to receive the specified quantities of fruit and nuts on the cars at the depot, and then plaintiff had no further care concerning them. The defendant agreed to pay for· the fruit $1.10 per