Koch v. Quick

Phillips, J. Action of assumpsit for money had and received and amount stated. John Pruitt, by contract with the drainage commissioners of Columbia Drainage and Levee District No. 3, of Monroe county, Illinois, had performed cer-tain work for such commissioners, to be paid for in the bonds of the district, and being indebted to appellee, made and delivered to her an order, as follows: “ Messrs. L. Warnock, F. Koch and J. Fischer, Commissioners of Columbia Drainage and Levee District No. 3, of Monroe county, Illinois: Please issue and deliver to Mrs. M. E. Quick, payable to her order, bonds to the amount of $552, and this shall be your receipt for the same. “This 6th day of June, A. D. 1885. “John Peuitt.” On June 7, 1885, that order was presented to Warnock and Koch, at Columbia, Illinois, by Mrs. M. E. Quick, and they said to her whatever was coming to Pruitt on final measurement she should have. The order was left with them, by them delivered to their clerk, who kept the same with the papers, and was retained until after the commencement of this suit. A short time after the presentation of this orfier Pruitt quit work and left the State, and at that time the record-of the commissioners show his work not paid for amounted on final measurement to $316.80. Appellant had incurred liability as security for Pruitt, and claims that on final measurement, when the amount of Pruitt’s work was determined, bonds were issued and delivered to Pruitt, and by him turned over to appellant. The record, however, as- made by the commissioners, of whom appellant was one, was offered in evidence, and is as follows: “John Pruitt was allowed on old contract a balance of...§ 1.08 John Pruitt was allowed estimates of 1,750 cubic yards, at 18 cts............................. 315.00 Total amount allowed Pruitt...................... §310.80 which was placed to the credit of Frederick Koch, Sr. L." Wakhock, F. Koch, Sr., J. Fischer, Commissioners.” On trial in the Circuit Court of Monroe county a verdict was found for appellee for §327, and appellant prosecutes this appeal. On the order made by Pruitt to appellee being executed and delivered, and the same presented to Warnock and Koch and by them delivered to their clerk, they promised that whatever was coming to Pruitt on final measurement should be appellee’s. That order and promise made an equitable assignment of the amount that might be found owing to Pruitt from the district. , Phelps v. Northup, 56 Ill. 156. Warnock and Koch, as such commissioners, had knowledge of that assignment, and the order having been delivered to them and thus retained until after Pruitt left the State and until after the commencement of this suit, with no notice to appellee of any claim made on the part of another to the same money, or bonds, and appellee thus caused to remain quiet and not attempt to collect her claim from Pruitt, Koch should be held estopped from asserting a claim to either the money or bonds thus, on final measurement, found owing for that work. Kinnear v. Mackey, 85 Ill. 96. Whether, therefore, the money was placed to the credit of Koch, as appears by the record he aided to make for the commissioners, or the bonds were issued and delivered to Pruitt and by him turned over to Koch, in either case it would be inequitable for him to thus retain the same. It is insisted, however, that appellee has misconceived her action and trover only would lie, and that an action for money had and received can not be maintained on the state of facts here shown. By the order drawn in appellee’s favor the commissioners were directed to issue and deliver bonds payable to her order. Whether the bonds were issued in favor of appellant payable to his order, as would be the inference to be drawn from the record of the board, or whether, as appellant testifies, the bonds were issued to Pruitt and by him turned over to appellant, in either case the legal title to the bonds would be so in appellant that he alone could sue on the same, and we hold the action for money had and received will lie, and that there was such privity that appellee is entitled to recover. It is further claimed that the verdict and judgment, being for.the sum of $327, is excessive and not sustained by the evidence. We have seen that $316.80 owing Pruitt was placed to the credit of appellant, as appears from the records, and, as appears from the testimony of appellant, bonds to the amount of $300 were issued to Pruitt and by him turned over to appellant. That, as appears from the evidence, was on July 25,1885. The judgment was rendered October 25,1887. From the facts appearing in the case, interest was recoverable^ and the verdict is not too much. We find no error in the record and the judgment is affirmed. Judgment affirmed.