Wester v. Arenz

Fowler, J. Counsel for defendant concede that plaintiff has a cause of action for whatever money of plaintiff went in any way- into defendant’s business for his benefit, but contend that there never was, and that the findings of the jury do not show, a contract of loan or for loans between him and the plaintiff. Their contention is that whatever action plaintiff has is for money had and received, and that as they were not permitted to show that part and what part of the money involved went to Marie’s credit and benefit instead of to the defendant’s, the judgment appealed from cannot stand. We are of the opinion that the findings of the jury or the evidence do not warrant the conclusion that an agreement for loans or any particular loan was made between the parties or create the relationship of lender and borrower between them. To us it appears that if under the facts found and the undisputed circumstances the plaintiff intrusted money to his daughter to be loaned to defendant, he made her his agent for delivering the money to defendant and securing his acceptance of it as a loan. It seems manifest that the appropriate action of plaintiff is for money had and received. Glendale Inv. Asso. v. Harvey Land Co. 114 Wis. 408, 90 N. W. 456. Also it may be that some of the money 175 intrusted by plaintiff to his daughter was applied by her to defendant’s benefit without being deposited to the credit of defendant in the bank named in the question relating to Marie’s deposits, and the finding of the jury only goes to the point of such deposits. A retrial should be had upon all the issues. By the Court. — Judgment reversed, and c’ause remanded with directions to permit amendment of the complaint to allege for money had and received and for further proceedings.