Hireen v. R. W. English Lumber Co.

Mr. Justice Gabbert delivered the opinion of the court: The It. W. English Lumber Company, a corporation, was engaged in buying and selling lumber, coal and building material at the town of La Junta. One A. W. English was the manager of its business at .that point. In September, 1903, he assumed, on behalf of the1 company, to borrow of the appellant, Amanda Hireen, the sum of five hundred dollars, and executed and delivered to her the note of the company, also signed by himself. The note was not paid at maturity and suit was brought thereon by Mrs. Hireen. In her complaint she declared upon two counts, the first upon the note, the second for money had and received. The defendant denied the authority of English to execute the note, and also denied that it received the money, as stated in the second count. At the conclusion of the testimony the court directed a verdict for the defendant. From a judgment accordingly, plaintiff appeals. The testimony discloses that Mrs. Hireen gave her check for the money loaned payable to the order of the company; that this check was indorsed by A. W. English as manager; that it was deposited to the credit of the company in the La Junta State Bank, where the company kept an account, and the proceeds used in paying bills of the company by checks drawn by the manager. On oral argument counsel for plaintiff conceded that, under the testimony and on the authority of [218] Rizzuto v. R. W. English Lumber Co., 11 Colo. 113, 98 Pae. 728, an action conld not be maintained upon the promissory note, but contended that the case should have been submitted to the jury on the second count. For money had and received it is only necessary to show that the defendant has obtained money of the plaintiff, which, in equity and right, he ought to return.—Zang Brewing Co. v. Bernheim, 7 Col. App. 528; Mumford v. Wright, 12 Col. App. 214. The testimony brings the case squarely within this rule. Manager English had no authority to borrow money on behalf of the company, neither had he any authority to execute its note for money borrowed; but, notwithstanding his want of authority in these respects, it appears that the company received the money directly, and that it was used for its benefit. In equity and good conscience it should repay the money so obtained. This case is clearly distinguishable from- the Rizzuto case. In that case suit was brought upon the note only, and it was sought to hold the company upon the ground that it had ratified the transaction because it had received the benefit of the money borrowed. The evidence disclosed that the money realized on the note was paid to the manager, English, in his - individual capacity, who subsequently deposited it to the credit of the company, and it was therefore held that the company had not ratified the act of its agent. In the case at bar the action is for money had and received, and it appears by the check of the plaintiff, the indorsement, and the transaction with the La Junta State Bank, that the money borrowed was paid directly to the company by the plaintiff. It is true, as contended by counsel for appellee, that at the time the manager borrowed the money he was short in his accounts with the company, and that [219] the money was borrowed for the purpose of covering up such shortage; but this condition of affairs is immaterial, where it appears conclusively that the money borrowed was paid directly to the company, and that it received the full benefit of the money so borrowed. The judgment of- the district court is reversed and the cause remanded for a new trial in accordance with the views expressed in this opinion. Reversed amd remmded. ' Chief Justice Steele and Mr. Justice Hill concur.