Lang v. Friedman

CAULFIELD, J. (after stating the facts). — I. It is clear that under the law and the evidence plaintiff had no right to recover from Friedman the $455 which was not received by Friedman bnt was paid directly to Syrett by Lang’s agent, and as instructions numbered 4, 5 and 7, offered by the plaintiff and refused by the court, proceeded on the theory that he could so recover, the trial court did not err in refusing them. This is not an action for damages against the defendant and cannot be treated as such.' It is purely ex contractu, assumpsit for money had and received, to mantain which it was necessary for plaintiff to establish that defendant had received his money, or that Syrett had received it as defendant’s agent or for their joint benefit. It was not sufficient to show merely that defendant had acquiesced in or requested the payment to be made to Syrett, the plaintiff not being misled into the belief that he was thereby making a payment to defendant. [N. Y. Guar. & Ind. Co. v. Gleason et al., 78 N. Y. 503; 2 Ency. of Pleading & Practice, p. 1021, and cases cited; Keener on Quasi-Contracts, p. 160; see, also, Roemer Com. Co. v. Annan, 81 Mo. App. 572.] II. The court rightly authorized a verdict for defendant if the jury found that he received the $250 as the disclosed agent of Syrett, and paid it over on his principal’s order before he had knowledge that the deeds to plaintiff were forged. “It is a complete defense to to an action brought against an agent for money, which was voluntarily paid to him as agent, that he has paid the money over to his principal without notice of any claim thereto on the part of the plaintiff, from whom he received the money, the reason therefor is that' in legal contemplation the payment [363] was made by tbe plaintiff to tbe defendant’s principal; and if in addition thereto tbe money bas in fact reached tbe principal’s bands, without notice on tbe part of tbe agent that be should not pay tbe same over, then, since the money bas reached tbe very person to whom tbe plaintiff intended to pay it, in circumstances implying nothing inequitable on tbe part of tbe defendant in paying it over, tbe plaintiff should assert bis claim against tbe defendant’s principal, and not against tbe defendant.” [Keener on Quasi-Contracts, p. 62. See, also, 27 Cyc. 869; Leake on Contracts (5 Ed.), p. 72; Mechem on Agency, sec. 561; Butler v. Livermore, 52 Barb. (N. Y.) 570; Hearsey v. Boyd, 7 Johns. 182; Roemer Com. Co. v. Annan, 81 Mo. App. 572.] Our decision in St. Charles Savings Bank v. Orthwein, 160 Mo. App. 369, 140 S. W. 921, is not to be construed as bolding contrary to what is above quoted, for there tbe alleged agent bad notice at tbe time that it was receiving tbe money of plaintiff wrongfully. In this case it is uncontroverted that the $250 was voluntarily paid to Friedman by Lang’s agent and that Friedman paid tbe money over to tbe Maplewood Bank on an order of Syrett, bis principal, without notice of any claim thereto on tbe part of Lang and without any knowledge of tbe forgery. Tbe only disputed question was- whether Friedman bad disclosed bis agency and tbe identity of bis principal when be received tbe $250 from Lang’s agent. This question was submitted to tbe jury on what we deem substantial evidence and tbe jury bas found tbe fact for tbe defendant. In this view of tbe case there was no error in refusing plaintiff’s peremptory, instruction. The judgment is affirmed. Reynolds, P. J., and Nortoni, J., concur.