Chase v. Willman Mercantile Co.

Gill, J. Plaintiffs and defendant, who were engaged in business at St. Joseph, Missouri, each had an account against one Stout, an insolvent confectioner, at DeWitt, Nebraska. The claim of the Chases amounted to about $90, and that of the Willman Company to about $100. In August, 1893, plaintiffs sent their account to a firm of attorneys in Nebraska for collection. The attorneys presented the demand to Stout, who, though not then ready to pay, gave as security the written personal indorsement of a third party, due in sixty days. About three weeks thereafter the defendant placed its claim against Stout with the same Nebraska lawyers, with like instructions to collect. These attorneys were unable to collect the Willman claim, or to get any security therefor. Stout, however, executed his individual note to the Willman Company and gave it to the attorneys. Matters remained in this condition till November 13 following, when Stout went [485] to the office of the Nebraska lawyers and paid off the claim of the plaintiffs, took up the personal security given, and got in return a .receipt in full for plaintiffs’ demand. Through a mistake of the Nebraska attorneys (or their clerk) the money thus collected by them for the plaintiffs was sent to the defendant Willman Company. A few days thereafter the mistake was discovered and defendant was asked to turn over the money thus inadvertently given it, to the plaintiffs. But the defendant refused, and plaintiffs brought this action for money had and received, resulting in a judgment in their favor for the amount so paid defendant by mistake, and from this judgment defendant appealed. The facts giving rise to this controversy are undisputed, and are, in effect, as we have already stated them. The sole question is, do they warrant the judgment which has been rendered against the defendant? It would seem that there ought not to be any question as to the right of plaintiffs to the money in dispute. If legal principles are meant to serve the ends of jus- • tice, then surely the defendant can not be allowed to retain this fund, which clearly belongs to the plaintiffs. Ingenious counsel for defendant argues that plaintiffs can not maintain the action because, he says, there is no privity of contract between the parties. No privity of contract is required. The law will imply an obligation on defendant’s part to pay over to the rightful owner the money which was paid to it by mistake. Defendant’s claim against the Nebraska confectioner was not paid; it still holds its note unsatisfied. The money in question was paid to the common agent and attorney for the plaintiffs, and not for the defendant. This is conceded. The defendant, then, has in its possession this money, which in equity and good conscience ought to be given over to the plaintiffs. [486] It has often been announced tbat tbis action for money bad and received “will lie in general whenever the defendant has received, money which is the property of the plaintiff, and which the defendant is obliged by the.ties of natural justice and equity to refund.” Winningham v. Fancher, 52 Mo. App. 458. Or, as comprehensively stated in the books: “An action of assumpsit for money had and received is an equitable remedy, that lies in favor of one person against another when that other person has received money either from the plaintiff himself or third persons, under such circumstances that in equity and good conscience he ought not to retain the same, and which, ex equo et bono.,. belongs to the plaintiff.” There is no merit in the defense. In my opinion, the judgment of the circuit court ought to be affirmed, with ten per cent damages; and, the other judges concurring, it is so ordered.