Thress v. Zempel

Robinson, J. This is an action to recover $700 for money had and received. The answer is a general denial. The jury found a verdict for defendant. The court made an order granting a new trial, and defendant appeals. In July, 1912, Otto Thress being the owner of lots 4 and 5 in block 1 of New England, contracted to sell and convey the same to C. N. Murphy for $900. In August, 1912, to secure $156.50, Murphy transferred the contract to defendant. He obtained a judgment of foreclosure under which sale was made, and he bid in the title and interest of Murphy for $261.93, subject to redemption within one year. Zempel at once took possession of the lots and the large livery barn, which he insured for $1,000. And in an action for an accounting between Murphy and Zempel, the insurance premiums were charged and allowed against the rents and profits of the lots and bam. The court found that the reasonable rent and value of the premises was $300; that for repairs defendant had expended $15, and for insurance $98.90, making in all $115.10, which left to the credit of Murphy a balance of [514] $186.10 to apply on the sum necessary to redeem. Then Murphy assigned to the plaintiff his contract of purchase and all his title and interest in the premises. On December 10, 1917, pursuant to judgment of the district court, Otto Thress paid the sheriff who made the sale $143.09, with interest at 12 per cent from the date of the sale, and obtained from the sheriff a certificate of redemption. In the accounting suit of Murphy v. Zempel, no appeal was taken from the judgment which was duly given two years prior to the trial of this action, and hence it is final and conclusive. The barn was burned and defendant received insurance to the amount of $1,000 from which he paid Otto Thress $300, and put the balance of $700 to his own credit in his bank. Defendant now claims that he never actually received the $700 and never had it in his possession, and that he is the owner and entitled to the $700; but, as the trial court justly found, the plaintiff, Otto Thress, is the owner of the premises, owning both the fee to the real estate and having taken up the outstanding contract against the premises, made redemption, paid the money to the sheriff. He paid the insurance premiums, and defendant, Zempel having no interest in the property at the time of the fire, Thress, having borne the burden of the insurance premium, is entitled to the .insurance money. He is entitled to receive from defendant $700, with interest at 6 per cent from the time he received the draft for the same. In the brief of counsel for defendant it is said: The court greatly abused its discretion in granting a new trial because the undisputed evidence shows that defendant never actually received the money, and that defendant was the owner and entitled to the money. But that is just the reverse of truth. For the insurance loss the defendant received a draft for $1,000 payable to the order of himself and the plaintiff. He gave the plaintiff $300 and put $700 to his own credit in his bank when he had no shadow of an honest claim to the money. He had sustained no loss. He was not the owner of the barn that was burned. On the record and the undisputed evidence the case presented no question of fact to submit to the jury. The court should have directed a verdict in favor of the plaintiff or allowed the motion for judgment notwithstanding the verdict. Order affirmed and case remanded for proceedings in accordance with this decision.