Common Counts

• Author: Kevin R. Culhane
• Pages: 848-892

31-848

Chapter 31

Common Counts

§3100 Introduction

§3110 Elements of Plaintiff’s Claim

§3120 Basic Information

§3130 Common Counts for Stated Amounts – Plaintiff to Defendant

§3140 Common Counts for Stated Amounts – Defendant to Plaintiff

§3150 Common Counts for Reasonable Value – Plaintiff to Defendant

§3160 Common Counts for Reasonable Value – Defendant to Plaintiff

§3170 Investigatory Interrogatories

§3100 Introduction

§3110 Elements of Plaintiff’s Claim

§3120 Basic Information

§3121 Information Regarding Defendant

§3121.1 Identification of Defendant

§3121.2 Personal Data Regarding the Defendant

§3121.3 Agency Relationships

§3121.4 Similar Claims and Legal Proceedings

§3122 Information Regarding Plaintiff

§3122.1 Personal Data Regarding the Plaintiff

§3122.2 Prior Common Count Claims

§3130 Common Counts for Stated Amounts – Plaintiff to Defendant

§3131 Money Had and Received

§3131.1 Valid Express Contract

§3131.1.1 Express Contract Breached

§3131.1.2 Express Contract – Failure of Consideration

§3131.1.3 Express Contract – Contract No Longer Executory

§3131.2 Express Contract Unenforceable

§3131.2.1 Mistake

§3131.2.2 Innocent Misrepresentation

§3131.2.3 Lack of Capacity

§3131.2.4 Statute of Frauds

§3131.3 Express Contract Void

§3131.3.1 Illegality

§3131.4 Quasi-Contract

§3131.4.1 Money Paid Due to Mistake of Fact

§3131.4.2 Money Paid Due to Fraud

§3131.4.3 Money Paid Due to Coercion

§3131.4.4 Waiver of Tort Remedy

31-849 coMMon counts

§3132 Services Rendered

§3133 Goods Sold and Delivered

§3134 Money Paid to/for Defendant

§3135 Money Lent to Defendant

§3136 Account Stated

§3140 Common Counts for Stated Amounts – Defendant to Plaintiff

§3141 Money Had and Received

§3141.1 Valid Express Contract

§3141.1.1 Express Contract Breached

§3141.1.2 Express Contract – Failure of Consideration

§3141.1.3 Express Contract – Contract No Longer Executory

§3141.2 Express Contract Unenforceable

§3141.2.1 Mistake

§3141.2.2 Innocent Misrepresentation

§3141.2.3 Lack of Capacity

§3141.2.4 Statute of Frauds

§3141.3 Express Contract Void

§3141.3.1 Illegality

§3141.4 Quasi-Contract

§3141.4.1 Money Paid Due to Mistake of Fact

§3141.4.2 Money Paid Due to Fraud

§3141.4.3 Money Paid Due to Coercion

§3141.5 Waiver of Tort Remedy

§3142 Services Rendered

§3143 Goods Sold and Delivered

§3144 Money Paid to/for Defendant

§3145 Money Lent to Defendant

§3146 Account Stated

§3150 Common Counts for Reasonable Value – Plaintiff to Defendant

§3151 Quantum Meruit

§3151.1 Unenforceable Contract

§3151.1.1 Unenforceable Contract – Statute of Frauds

§3152 Quantum Valebant

§3160 Common Counts for Reasonable Value – Defendant to Plaintiff

§3161 Quantum Meruit

§3161.1 Unenforceable Contract

§3161.1.1 Unenforceable Contract – Statute of Frauds

§3162 Quantum Valebant

§3170 Investigatory Interrogatories

§3171 Witnesses

§3172 Expert Identification

§3173 Surveillance

§3174 Insurance

§3175 Due Diligence in Preparation of Response

§3100 Model InterrogatorIes 31-850

§3100 Introduction

As most practitioners are aware, modern pleading rules throughout the United States embrace the concept of

“code pleading” whereby the common law forms of pleading are abolished and replaced by pleadings identified in

the relevant statutes. (See, e.g., California Code of Civil Procedure §422.18 et seq.) The system of code pleading

embraces several fundamental principles, including, as noted above, the concept that the common forms of pleading

are abolished. Instead, it is said that a claim must be set forth in ordinary and concise language, and that the court may

award any relief consistent with the case made by the complaint. (California Code of Civil Procedure §§425.10(a)

(1) and 580.) Traditional doctrine holds that under this approach to pleading, the claim must be stated in terms of

ultimate facts, omitting evidentiary facts on one end of the spectrum and legal conclusions on the other. (See Witkin,

California Procedure, Pleading (5th ed.) §378 at 513.)

Notwithstanding the foregoing, certain vestiges of the common law forms of action remain. One example is

sourced in the common law action of assumpsit, in which the pleader is permitted to allege an indebtedness by using

one or more “common counts.” As one authority has stated, these are “. . . statements to the effect that the defendant

is indebted to the plaintiff in a particular sum for a generalized, formal reason such as ‘money had and received,’

‘goods sold and delivered,’ ‘work and labor done,’ ‘materials furnished’ and the like.” (Witkin, California Procedure,

Pleading (5th ed.) §553 at 680-81.)

As Witkin also has noted, the practice of pleading an indebtedness not by stating the ultimate facts but by using

a generalized form that includes legal conclusions is directly opposed to a basic principle of code pleading. (Witkin,

California Procedure, Pleading (5th ed.) §553 at 681.) Nevertheless, the common counts were sufficiently familiar to

attorneys and convenient enough in practice to survive the adoption of code pleading, and they are today recognized

throughout the United States.

As will be seen in the materials that follow, common counts are included in the pleadings in a wide variety of

scenarios, including cases involving enforceable express and implied contracts, cases involving contracts that are void

or voidable, and even cases in which the plaintiff elects to “waive the tort” and sue in quasi-contract. Given this fact,

the purpose of this chapter is to provide analysis of and interrogatories relating to common issues that arise where

plaintiff seeks recovery under a common count. As is the case throughout this book, the analysis and interrogatories

are organized according to the elements of plaintiff’s claim and the affirmative defenses thereto; each of these issues

is treated from both the plaintiff and defense perspectives.

§3110 Elements of Plaintiff’s Claim

As suggested in the general discussion above, a claim for recovery under a common count requires the plaintiff

to plead and prove: (1) defendant is indebted to the plaintiff in a certain sum; (2) the consideration, i.e., money had

and received, goods sold and delivered, etc.; and (3) nonpayment. (See Farmers Insurance Exchange v. Zerin (1997)

53 Cal.App.4th 445, 460.) This chapter contains legal analysis and interrogatories exploring the parties’ respective

contentions regarding each of these essential elements, and does so from both the plaintiff and defense perspectives.

§3120 Basic Information

§3121 Information Regarding Defendant

§3121.1 Identification of Defendant

A basic litigation issue relates to the proper identification of the defendant. Accordingly, the interrogatories set

forth in section 211.1 should be consulted to determine the basic facts regarding the identity of the defendant, the

defendant’s business format and related issues.