Atwell v. Jenkins

• Decision Date: 02 April 1895
• Citation: 163 Mass. 362,40 N.E. 178
• Parties: ATWELL v. JENKINS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

163 Mass. 362

40 N.E. 178

ATWELL v. JENKINS.

Supreme Judicial Court of Massachusetts, Suffolk.

April 2, 1895

This was an action of contract to recover $300 for money had and received by the defendant to the plaintiff's use. A man by the name of Hoes, a resident of Chicago, while temporarily at an hotel in Boston, committed an offense for which he was arrested on May 9, 1891. He was brought before the municipal court of the city of Boston on the same day, and his bail fixed at $300. On the same day of his arrest Hoes sent a telegram to the plaintiff, at Chicago, in the following words: "Boston, Mass., May 9, 1891. To W.J. Atwell, 218 La Salle Street, Chicago, Ill.: Deposit two hundred and fifty dollars for me at once, Borrow on bonds if you do not have it. After your deposit, make check to Schaffer, and telegraph at once four hundred dollars to Hon. Edward J. Jenkins, my attorney, 28 School st., Boston. Am in trouble. Don't fail. Hoes." Upon receipt of said telegram, the plaintiff deposited $400 of his own money with a telegraph company in Chicago, and procured the same amount to be paid over to defendant by the agents of the telegraph company in Boston on the same day. Plaintiff then sent the following message to Hoes by telegraph: "Money gone forward as per your telegram. Write full particulars." On receipt of the money, defendant recognized as surety in said criminal case in the sum of $300, and Hoes was thereupon released from arrest. Hoes, at the time of the commission of the offense and of his arrest, was insane, and thereafter continued in that condition until he died, in the following December, at an asylum for the insane, to which he had been removed shortly after the occurrence above mentioned. The defendant who is an attorney at law, acted as counsel for Hoes. The case was continued until June 17, 1891, when the district attorney entered a nolle prosequi therein, by reason of the insanity of Hoes, and bail was thereby released. The plaintiff put in evidence the sworn answers of the defendant to interrogatories filed to him by the plaintiff, as follows: "Interrogatory 1. Did you receive from the plaintiff, on or about May 8, 1891, the sum of four hundred dollars, which was sent to you by him through the hands of the Western Union Telegraph Company? Answer. Yes. Int. 2. If you answer the first interrogatory in the affirmative, will you state what said money was sent to you and received by you for? Ans. I received one hundred dollars as a retaining fee, which Hoes agreed to pay and did pay me for such retainer. The rest I received at first as security for securing bail for him,--the bail being that sum; and afterwards he stated to me that he desired to have the case fixed up so that there would be no imprisonment or no publicity of the matter, and offered and agreed that if I would secure both results he would pay me the three hundred dollars which had been deposited for the security of bail, in addition to the one hundred dollars which he paid me as a retainer. This I agreed to undertake to do." The plaintiff also introduced evidence to controvert the above statement of the defendant as to his alleged agreement with Hoes that the defendant might retain said sum of $300 for services; and evidence, which was not contradicted, to show that the services rendered by the defendant were worth only from $50 to $60, and that the defendant had never returned the money, nor any part of it, to the plaintiff or any one else. The defendant offered no evidence at the trial. The court ruled that upon the evidence the action could not be maintained, and directed a verdict for the defendant, to which ruling the plaintiff excepted.

COUNSEL

Chester W. Church, for plaintiff.

Peter J. Casey, for defendant.

OPINION

HOLMES, J.

This is an action to recover $400 put into the defendant's hands by the plaintiff through the Western Union Telegraph Company under the following circumstances: One Hoes, an inhabitant of Chicago, committed an offense here, and was arrested. It seems to have been for his interest to keep the matter private. He retained the defendant, who, on receipt of the above-mentioned money, recognized as surety for him, and obtained his release from arrest. Afterwards a nolle prosequi was entered by reason of the insanity of Hoes. When arrested Hoes telegraphed to the plaintiff: "Telegraph at once four hundred dollars to Hon. Edward J. Jenkins, my attorney. *** Am in trouble. Don't fail." The plaintiff thereupon sent the money.

It hardly needs to be said that this transaction made no contract between the plaintiff and the defendant. The plaintiff's advance was to Hoes. When the money was received by Jenkins it was received by Hoes, as between them and the plaintiff; and, if the defendant kept it, that was by some arrangement between him and Hoes, with which the plaintiff had nothing to do.

But there was evidence that Hoes was insane at the time, and the plaintiff claims a right to recover on that ground. This must mean that he had a right to avoid his contract on the ground of the other party's insanity, and to demand his money wherever he could find it, unless the defendant, to whose hands it was traced, stood as a purchaser for...