money was furnished was that Mrs. Fontaine should occupy the house as long as she should live, unless the property should in the meantime be sold. This evidence certainly supports the finding attacked.

The defendants also rely for a reversal upon a question of pleading, claiming that the facts above set forth will not support a judgment for "money had and received." The language of the pleading material to this question, to be exact, is as follows: "That . . . the defendant received the sum of $439.50 from the plaintiff for the use and benefit of plaintiff." It is plain from these facts that the money was furnished by Mrs. Fontaine to Mrs. Lacassie to be used by the latter for Mrs. Fontaine's benefit, namely, to provide a home for her in her old age, and that she was within a comparatively short time after having furnished the money deprived of its benefit and use by being ejected from the house. The view of the trial court was that this evidence sustains the judgment. With this view we are constrained to agree.

The contract here was entire within the rule announced in the leading case of Wooten v. Walters, 110 N. C. 251, [14 S. E. 734, 736], upon the construction of entire and divisible contracts a rule approved by our own supreme court in Sterling v. Gregory, 149 Cal. 117, [85 Pac. 305]. In the latter case it was also held that where a contract is entire, there is a right of rescission thereof for partial failure of consideration under section 1689 of the Civil Code. This proposition is illustrated in this state also by Howlin v. Castro, 136 Cal. 605, [69 Pac. 432]-a case of somewhat different nature, where the facts were that Castro undertook to take care of Howlin during the remainder of the latter's life in consideration of receiving Howlin's property at his death. Howlin delivered a deed to one Rowling as security for the performance on his part of this agreement, and Castro after performing the agreement on his part for a year discontinued doing So. The supreme court held that the contract being executory and having been broken, the plaintiff was not confined to a remedy for damages, but might have the deed delivered up and canceled in an action for that purpose, thus receiving back all the consideration which he had promised for the performance of Castro's agreement to care for him. The ancient rule of the court of king's bench, the fountain of commonlaw pleading, was that where there is an entire contract, and

86 Cal. App.-12

by defendant's default plaintiff could not perform what he had undertaken to do, he had a right to put an end to the whole contract and recover back money which he had paid thereunder. (Giles v. Edwards, 7 Term Rep. 181.)

Lord Mansfield, in Moses v. MacFerlan, 2 Burr, 1005, adapted the count for money had and received to an action of the character of the case of Mrs. Fontaine. Previous to the decision of that case a debt proved in support of this action had always been a debt arising under the operation of purely legal principles. In that case there was clearly no debt. Indeed, the only possible ground of recovery was that it would have been inequitable under the circumstances to permit MacFerlan to retain the money. The real question, therefore, was whether a debt sufficient for the purposes of an action indebitatus assumpsit might arise from the operation of purely equitable principles. The court unanimously answered the question in the affirmative, Lord Mansfield stating the scope of the obligation as follows: "If the defendant be under an obligation, from the ties of natural justice, to refund, the law implies a debt, and gives this action, founded in the equity of the plaintiff's case, as it were upon a contract . . . This kind of equitable action, to recover back money which ought not in justice to be kept, is very beneficial, and therefore much encouraged. It lies only for money which, ex aequo et bono, the defendant ought to refund. . . . In one word, the gist of the action is that the defendant upon the circumstances of the case is obliged by the ties of natural justice and equity to refund the money."

"From the use of such expressions as 'obliged by the ties of natural justice and equity' it must not be inferred that the right of recovery in a particular case is a problem of moral philosophy. Recovery does not depend upon the trial judge's idea of justice in the particular case, nor yet upon the jury's notion of what is right between man and man. Here, as elsewhere, the courts must be guided by principles and rules fairly capable of uniform administration. These must be sought in the reports of decided cases." (7 Modern American Law, p. 372.)

Here, as we have seen, the courts of our own state have held that an agreement such as that made by the parties to this action mav, under circumstances such as the trial court found to exist here, namely, where the contract is entire and

the consideration has partially failed by reason of the default of one of the parties, be rescinded by the other party, who may then recover the money which he has paid thereunder.

From this discussion we think it fairly deducible that in an action such as this the plaintiff need not set forth the entire contract but may sue quasi ex contractu for money had and received.

It is argued that the house was personal property and could have been removed by Mrs. Fontaine. The terms of the agreement under which it was built negative this contention, for the intent of the parties evidently was that it should remain permanently on the land; and the trial court found that M. E. Lacassie retained the house for her own use and benefit.

This disposes of the points urged in support of the appeal. The judgment is affirmed.

Lennon, P. J., and Kerrigan, J., concurred.

[Civ. No. 1556. Third Appellate District.—February 7, 1918.] BERTRAM W. COLE et al., Respondents, v. OLIVE J. MUGRIDGE, Appellant.

CONTRACT-TRANSFER OF PROPERTY-CARE AND SUPPORT FOR LIFE-ENFORCEMENT.-Contracts to transfer property in consideration of care and support for life are enforced without reference to the form or phraseology of the writing by which they are expressed.

ID. BREACH OF CONTRACT-SUFFICIENCY OF EVIDENCE.-In this action for damages for breach of contract to convey land in consideration of personal care, attention, companionship, and consolation and furnishing defendant with necessary food during the remainder of her life, it is held that the evidence is sufficient to support the verdict in favor of the plaintiffs.

ID. INSTRUCTION-MEASURE OF DAMAGES.-An instruction in such an action that in cases of bad faith the measure of damages would be somewhat different did not impute bad faith to the defendant, notwithstanding no issue of fraud, concealment, or bad faith was raised

in the case.

ཁ་ལག

APPEAL from a judgment of the Superior Court of Solano County. Henry C. Gesford, Judge Presiding.

The facts are stated in the opinion of the court.

Leon Samuels, for Appellant.

James H. O'Leary, and E. S. Bell, for Respondents.

CHIPMAN, P. J.-This is an action for damages for breach of an alleged contract entered into by plaintiffs, who are husband and wife, and defendant on or about March 11, 1914, by the terms of which it is alleged that in consideration of plaintiffs' giving defendant their personal care, attention, companionship, and consolation and furnishing defendant with necessary food during the remainder of her life, defendant would convey to plaintiffs a certain lot of land situated in the city of Vallejo, together with the dwelling-house thereon and the furnishings therein, defendant to reserve unto herself an estate in said property during her life, plaintiffs to reside with her in said dwelling-house on said premises, "free from rent, during the remainder of defendant's natural life."

It is alleged in plaintiffs' second amended complaint that on March 23, 1914, and for a long time prior thereto, plaintiffs resided in the county of Worcester, state of Massachusetts; that about March 23, 1914, plaintiffs departed from their former home in the said county of Worcester for the city of Vallejo, arriving in said city about April 14, 1914; that on said day defendant had not conveyed said property to plaintiffs in accordance with said contract or at all; that on or about March 11, 1914, and April 14, 1914, and at all times between said dates, plaintiffs were ready and willing to comply with the terms of said contract, and on April 14, 1914, at the said city of Vallejo, plaintiffs offered defendant immediate compliance with the terms of said contract; but defendant then and there rejected plaintiffs' said offer of performance, and then and there refused to convey said property to plaintiff's in accordance with the terms of said. contract, or at all, and then and there refused to allow plaintiffs to reside in said dwelling-house with or without the use of said furnishings, during the remainder of defendant's natural life, or during any other period free from rent, or other

wise, or at all, and then and there refused to comply at all with the terms of said contract. By defendant's failure and refusal to comply with the terms of said contract as aforesaid, plaintiffs have suffered injury and damage as hereinafter alleged." That in order to comply with the terms of said contract on their part, plaintiffs were compelled to and did surrender a certain leasehold interest in certain land in said Worcester County, that had four years to run and which was yielding plaintiffs an annual profit of one thousand two hundred dollars and were obliged to pay the lessor the rents reserved, to wit, the sum of $480, to plaintiffs' damage in the sum of $5,280; that plaintiffs were for like reason obliged to sell, and did sell, certain farm implements and other personal property described, at a loss of $602; that in coming to California in order to comply with the terms of said contract, they incurred certain expenses, the items of which are enumerated, amounting to $329, and that to return to Massachusetts, the expense to plaintiffs will be a like amount; that plaintiffs were unemployed by reason of defendant's failure to perform on her part for a period of forty-eight days, resulting in plaintiffs' further damage in the sum of $240. The prayer of the complaint is for the sum of $6,781.70 and costs of suit. The complaint is verified. The answer consists of specific denials of the averments of the complaint, with the single exception that defendant admits that she would not convey said property to plaintiffs on or about the fourteenth day of April, 1914, or at any time. The cause was tried with a jury and plaintiffs had a verdict for one thousand five hundred dollars, for which amount the court entered judgment with interest from its date, September 2, 1915, and for costs fixed at $111.20.

Appellant says in her brief that the facts are "extremely unusual," which may be said of most of the cases in this class, for it would be difficult to find any two alike in their facts. While this is true, it is also true, as was said in Bruer v Bruer, 109 Minn. 260, [28 L. R. A. (N. S.) 608, 123 N. W. 813 "By the modern trend of authority these transactions are placed in a class by themselves and enforced without reference to the form or phraseology of the writing by which they are expressed."

The contract in question is chiefly derivable from letters exchanged between plaintiff, Mrs. Cole, and defendant, Mrs.