he had been damaged, who had damaged, the party liable therefor, and concluding with him, and the extent of detriment sustained, a prayer for the relief sought. These statutory and that such had been caused by breach of requisities being complied with, the litigant has an obligation to pay money. The statutes placed himself within the cognizance of the provide a clear, easy, adequate solution to court, and his rights are to be determined, unsuch problems. der the law, from the facts, conditions, and It may be said that but few problems can parties under our statutes are not determined circumstances involved. * The rights of possibly arise under pleadings in civil actions by the form of the action. but from the facts in this state, but which may be readily solv-in the case, as governed by statute, aided by ed by the statutes. Our statutes purport, at least, to provide a remedy either in law or equity for every detriment one may sustain through the wrongful acts of another.

In Owens v. Purdy et al. (Okl. Sup.) 217 Pac. 425, not yet officially reported, the statutes pertinent to the question here are fully set out and analyzed, and by referring thereto it is unnecessary to again quote them here. In the body of the opinion, after commenting on the statutory provisions, it is said:

"It is the plain, persistent, unyielding intent of the Legislature to make the foregoing Code provisions mandatory. When a plaintiff has complied with such provisions, and stated facts which show that he has sustained a detriment without fault on his part, and shows that such detriment has been caused by the wrongful conduct of another, states facts which show with reasonable clearness that in law or equity the party guilty of such wrongful conduct is liable to plaintiff for the results thereof, it then becomes the duty of the court, under the purpose for which they are created, to determine from the allegations and proof what relief the plaintiff may be entitled to, and, in order to enable them to fulfill such purpose, the district courts are endowed with the dual power of a chancellor and a court at law, so that, under the facts stated and proven, if the law be adequate, then the court will award such relief as the law authorizes, but, if the law be inadequate to proper relief, then the court in its powers as a chancellor will award such relief as in equity and good conscience the allegations and proof show the plaintiff entitled to receive. St. L. & S. F. Ry. Co. v. Yount, 30 Okl. 371, 120 Pac. 627; West v. Madansky, 80 Okl. 161, 194 Pac. 439; Smith v. Gardner, 37 Okl. 183, 131 Pac. 538."

[6, 7] In St. L. & S. F. Ry. Co. v. Yount, supra, 30 Okl. 371, 120 Pac. 627, the controversy was whether the suit was an action ex contractu or ex delicto. After quoting and analyzing the statutes on forms of actions and pleadings, the court said:

"The object of the Legislature in enacting these statutes was not only to abolish distinctions between actions at law and suits in equity, but also to relieve litigants of the intricacies and technical distinctions involved in commonlaw rules of pleading, and to provide a plainer, simpler, more speedy and less cumbersome system of procedure, by which their rights might be determined. Thus the abolition of all former distinctions in pleading and forms of action leaves but the one form--a civil actionwhich consists in a statement, in a proper court, in plain, ordinary, and concise language, of the facts showing the injury complained of, the redress to which the litigant is entitled,

the decisions under similar circumstances. These rules of statutes are mandatory with the courts and redressive to litigants; and where a party to an action has brought himself clearly within them he cannot be denied the right to have his grievances determined by them. There is nothing accomplished by the adoption of the Code of Procedure, if the intricate distinctions ing are still to be maintained. If it were necand cumbersome forms of common-law pleadessary to maintain them, in order to determine rights which cannot be determined or obtained under our Code procedure, then our Code is inadequate. But such is not the case. Any right which could be obtained under the common-law system of pleading can be as easily obtained under our Code procedure. Any wrong which could be redressed under the common-law system can be as speedily and adequately redressed under our Code, possibly much more so; the Code being broader, simpler, more liberal, and more comprehensive.

*

"It is true, as stated above, that courts, in determining the right of parties from certain condition of facts, quite often, and we might say universally, turn to the common-law precedents to ascertain what the courts, governed by the distinctions made in forms of pleading under the common law, have held under the same circumstances. But in such cases it is not for the purpose of maintaining those distinctions of forms, but to find out what a court, compelled under the common law to recognize those distinctions in forms of pleading, has held, where the facts were the same."

[3] In West v. Madansky, supra, 80 Okl. 161, 194 Pac. 439, after quoting section 4650, R. L. 1910, the same being section 178, C. S. 1921, the court said:

"This section, construed in the light of sections 4644 and 4738, makes it clear that the one court, endowed alike with the powers of grant relief upon a statement of facts which a chancellor and court of law, has power to constitutes a single wrong, and, if the wrong be such as under the evidence the court can grant relief equitably, it will do so, and, if it be such that relief is afforded under the law, then the same court will grant it in the same action."

In Smith v. Gardner, supra, 37 Okl, 183, 131 Pac. 538, the court said:

"Where a petition contains an allegation of facts which show that the plaintiff has been wronged, shows of what such wrong consists, and the damage plaintiff has sustained thereby, and shows that defendant perpetrated such wrongs and is liable therefor, and asks judgment for the amount of damage sustained by reason thereof, such petition states a cause of action."

(220 P.)

In Stone v. Case, 34 Okl. 5, 124 Pac. 960, 43 L. R. A. (N. S.) 1168, it being necessary to determine whether different causes of action were improperly joined in the petition therein, it was necessary that the court go into a thorough analysis and interpretation of the terms "subject of action," "cause of action," "object of action," etc., and to define the essential elements of each term in order to determine whether separate causes of action were improperly joined in the same petition. In discussing the elements of the cause of action, it is said:

"In its legal and logical significance, a cause of action is a wrong for which a remedy is prescribed by law or afforded in equity. The delict and the remedy are the primary elements. These elements are indispensable. The wrong, per se, the act of infringement, if it be a wrong for which a remedy is afforded, constitutes the cause of action. The existence of a primary right is no more a part of the cause of action than the existence of the possessor of such right, or the existence of his right to exist. The possessor of the right might live a century and the right be possessed during the entire time, and yet no part of a cause of action, in the sense of being a ground for a suit, exists until the right is infringed upon, until a wrong is committed. When the wrong is committed, the first element of a cause of action springs into existence; and if it be a wrong which is forbidden by law, or one for which redress is afforded by law or in equity, then the cause of action is complete. There is no union of the primary right and the wrong. It is not the primary right and its infringement which unite; but it is the wrong and the right to redress which unite to constitute a cause of action. Bliss on Code Pleading (section 2) says: 'We sue because of the wrong, to redress or protect it.' We think this is sufficient, and that it leaves it perfectly clear as to what is meant by the term

'cause of action.''

Scarborough v. Smith, 18 Kan. 399, is cited in Stone v. Case, supra.

[4, 5] In Wheeler & Motter Mer. Co. v. Moon, 49 Mont. 307, 141 Pac. 665, in the body of the opinion, the Montana court said:

In Burford v. Ter. Land Co., 84 Okl. 102, 204 Pac. 274, this court said:

action in several counts, if any of the counts "Where a petition states several causes of in the petition state facts sufficient to constitute a cause of action, though such facts may not entitle the plaintiff to the entire relief prayed for, a general demurrer to such petition should not be sustained."

In Threadgill et al. v. Board of Education, 85 Okl. 121, 204 Pac. 1100, this court said:

"It is the duty of a court, in considering a general demurrer, to apply the law to the facts stated in the petition. If, upon applying the law to the facts so pleaded, the petition states a cause of action, it is reversible error for the court to sustain such demurrer."

In Bush v. Mo. State Life Ins. Co., 86 Okl. 182, 207 Pac. 317, this court said:

"Where a pleading states any facts upon which the pleader is entitled to any relief under the law, a general demurrer should not be sustained thereto."

We deem the foregoing sufficient to give a fair idea of what a petition in a civil action should contain, and when the allegations constitute a cause of action. It is the purpose of this court to follow the provisions of the Code of Civil Procedure from the of the statute, and to interpret the provisions standpoint of the Code makers rather than from the standpoint of a previous knowledge of common-law pleading.

The facts stated in the petition herein, being taken as true upon demurrer, constitute a cause of action and the statutes above quoted afford the measure of relief. It is un"We shall not stop to determine the form of is entitled to equitable relief, but, should it necessary to say whether or not the plaintiff action presented by this complaint. The form be developed by proof that plaintiff is entiin which an action is brought is of no consequence; nor does it matter that the complaint tled to equitable relief in the nature of a contains allegations not appropriate to the pur- receivership of the property of defendant pose sought to be attained. In determining against further dissipation, or should the the issues of law presented by a general demur-proof show plaintiff entitled to a decree that rer to the complaint, the property be held in trust for the benefit of plaintiff, the trial court, in a further proceeding, in the exercise of its equity powers, should grant such relief as the facts show plaintiff entitled to receive.

* matters of form will be disregarded, as well as allegations that are irrelevant or redundant; and if, upon any view, the plaintiff is entitled to relief, the pleading will be sustained. Raymond v. Blancgrass, above."

For the reasons given, the judgment sus

[8] In Schanbacher v. Payne et al., 79 Okl. taining the demurrer is reversed, and cause 101, 191 Pac. 173, this court said:

"Where the petition of the plaintiff contains allegations sufficient to entitle the plaintiff to relief either at law or in equity, it is good as against a general demurrer."

I remanded, with directions to overrule the demurrer, and grant such further proceedings as are not inconsistent with the views here in expressed.

Reversed and remanded.

JOHNSON, C. J., and KANE, NICHOL-15. Embezzlement
SON, COCHRAN, MASON, BRANSON, and
KENNAMER, JJ., concur.

1 State v. Harcombe, 48 Utah, 89, 158 Pac. 1096, in the district court of Salt Lake county

of the crime of embezzlement, and appeals. In view of the errors assigned and the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(220 P.)

questions presented for decision it becomes the committee, and requested that his check necessary to set forth the charging part of be held by the defendant until the matter the information upon which the conviction was adjusted. The defendant promised is based, which reads as follows:

Gardner that he would "protect" him in the matter.

ever, that the matter was not finally adjusted between the committee and Gardner before the state fair opened, and Gardner commenced to exercise his rights under the concessions. From the record it seems, however, that the matter remained in the condition outlined, and that no other disposition was made of the check by defendant, except

"That the said J. L. Horne, at Salt Lake Pending the controversy between county, state of Utah, on the 15th day of Sep- the committee and Gardner, and on Septemtember, 1921, he being then and there an agent ber 15, 1923, the defendant deposited the of the Utah State Fair Association, a corpora- check in a bank to his own credit. He, howtion organized and existing under and by vir- ever, contended that he did so pursuant to tue of the laws of the state of Utah, and by his promise to Gardner that he would "provirtue of his being such agent, then said J. Ltect" the latter in his bid. It seems, howHorne came into possession of, was intrusted with, and had under his care and control, a $480 check drawn on the National City Bank of Salt Lake City, Utah, dated September 15, 1921, of the value of $480 lawful money of the United States of America, made payable to the Utah State Fair Association, and signed by Art Gardner, said check being the personal property of the said Utah State Fair Association, * and the said $480 check intrusted as aforesaid to the said J. L. Horne as such agent, he, the said J. L. Horne, in violation of his trust, did then and there willfully, unlawfully and fraudulently, and feloniously appropriate, embezzle, and convert to a use not in the lawful execution of his trust, to wit, to his own use."

*

that he deposited it as aforesaid, claiming, however, that he did so pursuant to his promise to "protect" Gardner. It was also made to appear that, although Gardner exercised his rights under his bid, he nevertheless requested that, in case the executive committee should stop or interfere with him in selling soda water at the prices charged by him, the defendant should "protect" him on his bid by withholding the check until the matter should be adjusted, so that, if he were interfered with by the committee, he might have some of the money represented by the Gardner, it seems, check returned to him.

was not interfered with by the committee, and he exercised all of his rights to the end of the state fair. After the state fair had closed, the defendant did not account for the check, except as before stated, and hence the charge of embezzlement.

The facts material here are to the effect that the check in question was issued by Art Gardner, and was delivered to the defendant as secretary of the Utah State Fair Association on August 29, 1921, as Gardner's bid for [1] It is vigorously contended by the dewhat are called the "hamberger" and "soda fendant that, under the circumstances just water" concessions, which Gardner intended stated, the Utah State Fair Association did to operate during the state fair which was not become the legal owner of the check, and held in the fall of 1921 at Salt Lake City. hence the charge in the information that it The Utah State Fair Association had adver- was the owner thereof was not established. tised for bids for those and other concessions, State v. Harcombe, 48 Utah, 89, 158 Pac. 1096, and the bidders were required to deposit is cited and relied on as supporting this conchecks with their bids equal to the amount tention. A mere cursory reading of that case of their bids. Gardner had filed his bid for will disclose, however, that the contention is the two concessions mentioned, and, in com- not supported by what is there held. In that pliance with the terms of the advertisement case the accused was charged with the emof the association, had deposited the check in bezzlement of money, the proceeds of certain question with the defendant as the secre- checks, which, it was alleged, was the money tary of the association. After the check had of a certain law firm. The checks there in been deposited as and for the purpose afore- question were, however, made payable to said, some controversy arose between Gard- the order of the creditors of the drawer of ner and the so-called executive committee the checks. It was accordingly held that the of the state fair, which, it seems, was in proceeds of those checks did not belong to the charge of the concessions respecting the price law firm but were the property or money of for which Gardner should sell soda water. the creditors or of the drawer of the checks. The committee's contention was communi- No other conclusion was permissible under cated to the defendant, and he advised Gard- the facts there disclosed. Here, however, ner of the committee's contention, to which the check was delivered to the defendant as Gardner demurred, and told the defendant the secretary and agent of the State Fair that he would not consent to the committee's Association. He is charged with the embezrequest, and that he did not want the soda zlement of the check and not with the embezwater concession under the terms imposed by zlement of the proceeds thereof.

He re

ceived the check, and could only have re-, that he withheld the property in good faith ceived it, as the property of the Utah State and upon some reasonable ground, then the Fair Association. True, in view of the cir- necessary felonious intent cannot be inferred cumstances, as will hereinafter appear, al- from the mere fact that he failed to account, though he did not account for the check ex- but the jury must be instructed that the cept as stated, he nevertheless, may have necessary felonious intent must be deduced done what he did without a felonious intent, from all the facts and circumstances when and hence may not be guilty of the crime of considered in connection with the claims of embezzlement. If that be so, however, it is the accused respecting the failure to account not because the State Fair Association was for the property or the money. That such is not the owner of the check, but for the rea- the law is made quite clear by the authorisons hereinafter stated. This contention of ties. See McElroy v. People, 202 Ill. 473, 66 the defendant must therefore fail. N. E. 1058; People v. Royce, 106 Cal. 173, 37 Pac. 630, 39 Pac. 524; People v. Lapique, 120 Cal. 25, 52 Pac. 40; Eatman v. State, 48 Fla. 21, 37 South. 576; State v. McDonald, 133 N. C. 680, 45 S. E. 582. See, also, State v. Coyle, 41 Utah, 320, 126 Pac. 305.

[2] It is, however, also insisted that the trial court committed prejudicial error in its instructions to the jury; in refusing some of the defendant's requests to instruet; and in the admission of certain evidence. Let it be remembered that the defendant is charged with the embezzlement of a certain check and with nothing else.

The court charged the jury as follows: "You are instructed that the law presumes that every man intends the natural and probable consequences of his own acts, and, if you find from the evidence, beyond a reasonable doubt, that the defendant feloniously and fraudulently converted the property alleged in the information to have been embezzled to his own use, you will be authorized to infer therefrom a criminal intent, and that he did at the time

intend to embezzle and convert the same to his own use, and to deprive the Utah State Fair Association of it. And in this connection you are instructed that 'feloniously' means a wrongful act willfully done."

In People v. Royce, supra, the Supreme Court of California held that the mere fact that an officer or agent of an association deposits a check drawn in favor of the association and belonging to it to his own credit is not sufficient to constitute the crime of embezzlement, since the necessary felonious intent is not thereby established. That case is referred to only for the purpose of showing that the felonious intent necessary to constitute embezzlement cannot be inferred from the act of withholding the property.

In People v. Lapique, supra, it is held that, under a statute from which ours is copied, the claim that the property was withheld by the defendant for a specific reason, if made in good faith, may be sufficient to constitute to appear to be untenable, as matter of law, a defense, although the reason may be made in a civil action for conversion.

It will be observed that the court charged "that the law presumes that every man intends the natural and probable consequences of his own acts," and that if the jury found intent to constitute the crime of embezzleThe question that there must be a felonious the facts outlined in the instruction they ment is very ably and exhaustively considmight infer the necessary criminal intent ered in the case of State v. McDonald, supra. to constitute the crime of embezzlement. It It is there shown that the necessary felonious no doubt is the law that, ordinarily, the pre-intent may not be inferred from the mere sumption prevails that men intend the "natural and probable consequences" of their acts, but it does not necessarily follow that one who is accused of the crime of embezzlement necessarily intended to commit a felony merely because he failed to account for the property which it is charged he has embezzled. In order to convict one of the crime of embezzlement the proof must go beyond the mere fact of showing that the accused obtained the property of another in some fiduciary capacity, and that he failed

fact that the property was withheld from
the owner by the one to whom it was en-
trusted or who received it in a fiduciary rela-
tion or capacity; that the criminal intent
must be deduced from all the facts and cir-
cused for withholding the same.
cumstances, including the reasons of the ac-

To the same effect is the case of McElroy v. People, supra. In the latter case it is said:

failed to prove with that degree of certainty "We are also of the opinion that the evidence

to account for it on demand. While there required by the rules of evidence in criminal may be cases where the felonious intent may cases that the defendant fraudulently converted be inferred from the circumstances surround-to her own use, or took and secreted with ining the receipt and withholding of the prop tent so to do, without the consent of her emerty, nevertheless that cannot be so, where, ployer, the money in question. The only evias in this case, the accused claims the with-dence of a criminal intent is the inference to She at no time holding of the property to have been in good be drawn from the act itself. faith and without a felonious intent. True denied or attempted to conceal the indebtedit is that the reasons the accused may assign for having withheld the property may not be believed, but, if he claims as a defense

ness."

So must it be said here. The defendant at no time concealed or attempted to conceal