— An action was brought in the district court of Santa Cruz county by the appellee against the appellants for a sum of money alleged to have been paid by the appellee and his assignor, L. Lindsay, to the appellants, for the purchase of the San Francisco mine, in the state of Sonora, Republic of Mexico, by the appellants as the agents of the appellee and his assignor, Lindsay. From a decision for the plaintiff, the defendants appealed.
The facts found by the trial court, before whom the case was tried without a jury, are as follows': “In or about the spring of 1905 the defendants A. Sandoval and P. Sandoval entered into a certain agreement with the plaintiff and one Lyeurgus Lindsay, whereby the defendants agreed that they, on behalf of the said plaintiff and the said Lindsay, would undertake to purchase for them a certain mining claim called the ‘ San Francisco mine, ’ in the Altar mining district, in the state of Sonora, Republic of Mexico, at the lowest possible price. Thereafter the said defendants, in pursuance of such agreement, and on behalf of the said Lindsay and this plaintiff, did purchase the said mining claim from the owners thereof for the full consideration of $20,000, Mexican silver, and that the defendant P. Sandoval, as copartner of the defendant, A. Sandoval, did thereupon obtain a deed of the said mining claim from the original owners thereof, and did pay therefor the sum of $20,000, Mexican silver, and no more; and the said defendants did thereupon, and in further pursuance of said agreement, procure the said P. Sandoval to convey the said mining claim to one H. S. MacKay, who was the agent of the plaintiff and of the said Lindsay; and the said Lindsay and the plaintiff in pursuance of said agreement, and in the belief that the defendants had paid for the said *376mine the said sum of $20,000, American gold, did pay to the defendants the said sum of $20,000, American gold. The plaintiff and the said Lindsay paid the said sum of $20,000' in gold in three separate installments, the last thereof being paid on the twenty-fifth day of May, 1906, in the sum of $12,000, American gold. The said sum of $20,000 Mexican silver paid by the defendants to the original owners of the said mining claim was worth in American gold the sum of $10,000 at the time the said payments were made. The said Lycurgus Lindsay prior to the commencement of this action duly assigned his claim against the defendant arising out of the aforesaid transaction to the plaintiff for a valuable consideration.”
The first error assigned by the appellant is that the complaint does not state facts sufficient to constitute a cause of action, and is subject to a general demurrer. No general demurrer was interposed in the lower court prior to the trial; hence no error was committed by the trial court in permitting the ease to come to trial. It would be error to render a judgment on a complaint so fatally defective as to be insufficient to support a judgment, but such error is not assigned. However, if the record should disclose that the complaint was not sufficient to support a judgment, the rendition of a judgment thereon would constitute fundamental error as manifest in the record, and the judgment would be reversed in the appellate court, even if the point was not raised by the appellant. It is urged by the appellant that this is an action for fraud, and, inasmuch as the complaint does not contain the allegations of facts constituting fraud that are essential in a complaint for fraud, it fails for that reason to state facts sufficient to constitute a cause of action. We cannot agree with the counsel for the appellant that the action is one of fraud. It is true that the complaint contains the words “with intent to deceive and defraud,” but, in addition to this charge, the complaint alleges (omitting the part not pertinent to this question): “The defendants agreed, as agent for Lindsay and the plaintiff, ... to buy a certain mine for the use and benefit of the said Lindsay and the plaintiff at the lowest possible price. . . . That thereafter . . . the said defendants did . . . as agents as aforesaid . . . purchase said claim . . . and pay therefor the sum of $20,000, Mexican silver, . . . and the owners of said cjaim did . . .■ convey the said claim to the defendants . . . and the said conveyance was accepted by the' *377said defendants for the use and benefit of the said Lindsay and the plaintiff. . . . That the defendants . . . did report to Lindsay and the plaintiff that they had agreed to pay the owners of said mine $20,000 American gold therefor, and said „ sum was the lowest sum for which they could purchase the same from said owners, and that Lindsay and the plaintiff, relying upon said statements of defendants, did pay to the said defendants the sum of $20,000, American gold. . . . That at the date when the defendants paid the said sum of $20,000 Mexican silver to the owners of said claim the said $20,000 Mexican silver was worth the sum of $9,600, gold, and no more, and that, by reason of the foregoing facts, the defendants became indebted to the said Lindsay and the plaintiff in the sum of $10,400, gold, and that they have not paid the same, or any part thereof, though often requested so to do.” The facts thus alleged in the complaint are sufficient to constitute a cause of action without the necessity of alleging fraud. That being the ease, the allegation of fraud that the appellant characterizes as defective and insufficient having been pleaded as matter of inducement only is immaterial, and may be treated as surplusage, and the complaint, independent thereof, is fully sufficient to sustain an action of debt for money had and received.
Another error assigned is that the court erred in overruling the demurrer of the defendants. ' This demurrer was urged upon the ground that the court had no jurisdiction over the persons of the defendants or the subject matter of the action. The record shows jurisdiction over the persons of the defendants acquired both by service of the summons and the copy of the complaint, and by a general appearance entered by their answer filed February 12, 1908. As to the jurisdiction of the court over the subject matter, this is a transitory action, and may be brought in any county where the defendants can be served with process. In Mostyn v. Fabrigas, 1 Cowp. 161, it is held that, if A becomes indebted to B in Paris, an action may be maintained against A in England, if he is there found. And in this case Lord Mansfield said: “Any action which is transitory may be laid in any county in England, though the matter arises beyond the seas. ’ ’ This doctrine in respect to transitory actions has been repeatedly affirmed in the courts of the United States. McKenna v. Fisk, 1 How. (U. S.) 241, 11 L. Ed. 117; Mitchell v. Harmony, 13 How. (U. S.) 115, 14 L. Ed. 75. At the conclusion of the plaintiff’s evi*378denee, the defendants asked leave to file an amended answer, setting up the statute of limitations. The plaintiff refused consent to the amendment, and the court denied the application. This denial is assigned by the appellant as error. After the trial of a case has begun, the court may, in its sound discretion, permit or refuse an amendment to the pleadings. This action, like any other that rests in the discretion of the trial court, will not be reviewed on appeal unless it is plainly shown that the lower court has abused its discretion. United States v. Atherton, 102 U. S. 372, 26 L. Ed. 213. The statute sought to be pleaded by the proposed amendment was the limitation provided by Act 16, Laws of 1903. The actions barred under this statute by the lapse of more than one year from the discovery of the acts constituting the fraud are those brought to obtain equitable relief, which are based wholly on fraud, and in which no relief can be granted unless fraud be proven. ' This action is not a bill in equity for relief on the ground of damage from fraud, but is a suit at law to recover money alleged to have been advanced to defendants as agents to pay the price of a mine purchased by them for plaintiff and Lindsay as principal. The complaint alleges that $20,000 gold was furnished defendants, and only $9,600 was paid by them, wherebj they became indebted to the plaintiff in the sum of $10,400, gold, which was not applied to the purpose for which it was furnished, and remained in their hands, the property of their principals. Before application to amend was made, it was established by undisputed evidence that of the money furnished defendants, $12,000, which included all the excess over the price actually paid (for which excess this action was brought), was furnished in May, 1906. No cause of action arose prior to the receipt of the money by defendants, May 25, 1906. This action was begun on the twenty-sixth day of November, 1906, six months after the statute began to run. Consequently it is apparent that in refusing to permit the defendants to amend, and plead the statute of limitations, the court deprived them of no defense.
The appellant assigned as error the findings of fact and conclusions of law of the trial court. The evidence is conflicting. There is abundant testimony to warrant the findings of the court. It is the rule that the appellate court will not disturb the findings of fact of the trial court based upon conflicting evidence when they are supported by any substantial *379testimony. The conclusions of law expressed by the trial court are proper, in connection with the facts as found.
The appellee calls attention to section 23, chapter 74, page 131, Laws of 1907, Territory of Arizona, and urges the enforcement of the penalty therein provided. We do not assume the responsibility of holding that the appellant was in this case actuated in taking the appeal solely by the desire to delay, and therefore will not impose the penalty.
The judgment of the trial court is affirmed.
KENT, C. <T., and SLOAN and CAMPBELL, JJ., concur.