I dissent. The action is for money had and received in the usual form. On the facts the action is grounded on the alleged deceit of the defendant in withholding the amount sued for as a portion of the plaintiff's share of the crops of 1924 and 1925, upon the representation that the estate of which the defendant was the agent had expended or incurred said amount as charges properly payable to the California Pear Growers Association when in truth it is claimed by the plaintiff that the estate was not a member of said association during the years in question. The defendant filed a general demurrer to the complaint and also a special demurrer on the ground of uncertainty, etc., which, after argument thereon, was overruled. The answer was merely a denial of the allegations of the complaint. At the trial the defendant contended first that the wrong form of action had been instituted, and, secondly, that if anyone were liable it was the estate and not the defendant, its known agent. The findings were as brief as the allegations of the complaint and the denials of the answer, merely finding that the allegations of the complaint were not true.
The same contentions made at the trial are now urged on appeal with the further contention on the part of the defendant that on the evidence the findings are supported.
Since the case of Minor v. Baldridge, 123 Cal. 187 [55 P. 783], it has been the law of this state that an action grounded in fraud may be stated in the form of the common count and that the pleading is good as against a general demurrer, but is not sufficient as against a special demurrer. Whether the demurrer in the present case should have been overruled need not be determined. On the trial the plaintiff offered evidence to establish his charge of fraud and deceit. The defendant offered evidence to meet the charge, contending that the amount sued for was represented by legitimate offsets against the plaintiff, including the settlement for a sum in *Page 430 excess of plaintiff's demand of a claim against the estate on the part of the Pear Growers Association under a contract executed by the decedent with the association whereby the decedent agreed to sell and deliver to the association all Bartlett pears produced or acquired by him during the years 1921 to 1927, inclusive. The findings of the court, necessarily implied, negative the charge of fraud or deceit on the part of the defendant and there is evidence to support the express as well as the implied findings.
On the second point, viz., that the suit should have been brought against the estate upon a rejected claim, it appears that the defendant was the agent of the administrator and known by the plaintiff to have been such. It is the general rule that an agent may be liable for his tortious act notwithstanding the principal may also be liable. (Perkins v. Blauth, 163 Cal. 782 [127 P. 50]; 1 Cal. Jur. 817.) But since the court found in favor of the defendant on the fraud charge this rule would not be applicable. In any view of the case I am satisfied that the judgment should be affirmed.
Waste, C.J., concurred.
Rehearing denied.
Waste, C.J., and Shenk, J., dissented.