Rishel v. Pacific Mut. Life Ins. Co. of California

McDERMOTT, Circuit Judge.

These are actions at law to recover the sums paid by way of single premiums for six annuity contracts. Plaintiff declares generally upon the common counts of moneys had and received for the use and benefit of his testate, but does not stop there. Instead, plaintiff sets out the annuity contracts granted for the sums paid, with other facts thought to justify rescission of the contracts and the recoveries prayed for notwithstanding, thereby anticipating the defense and alleging facts in avoidance thereof. The general allegations of the common counts are controlled and…