Beauchamp v. Sconce

• Decision Date: 31 July 1848
• Citation: 12 Mo. 57
• Parties: BEAUCHAMP v. SCONCE.
• Court: Missouri Supreme Court

12 Mo. 57

BEAUCHAMP

v.SCONCE.

Supreme Court of Missouri.

July Term, 1848.

APPEAL FROM RAY CIRCUIT COURT.

WOOD & DUNN, for Appellant.

1st. The plaintiff below, appellee here, seeks to recover for money had and received, and the defendant below appellant here, may rely upon everything which shows that the plaintiff ex equo et bono, is not entitled to recover. Comyn on Contracts, 266. 2nd. The moral obligation created by the defendant's advancing money to the husband of the plaintiff to save his property from execution, upon his pledging this money to re-imburse him, is a sufficient consideration to support her promise that he might retain this money in payment of the money so advanced. 1 Wheaton's Selwyn, 42. 3rd. The trouble and expense incurred by the defendant in having the pension papers made out and forwarded, added to his equitable right to the money, is a consideration which renders her promise that he might retain it to pay his debt obligatory upon her. Chitty on Contracts, 32. 4th. The defendant in his affidavit of newly discovered evidence discloses a new and material fact which came to light since the trial, and which he did not know, and had not the means of proving before the court sitting as a jury and the court ought to have granted him a new trial. Stephen on Pleading, 116; Ewing v. Price, 3 J. J. Marsh. 522.

P. L. EDWARDS, for Appellee.

MCBRIDE, J.

Rachael Sconce brought her action of assumpsit in the Ray Circuit Court against John A. Beauchamp, for money had and received and for money lent. The defendant pleaded non-assumpsit, upon which issue was taken, and the cause submitted to the court, without the intervention of a jury, when the court found for the plaintiff and assessed her damages to $104. The defendant thereupon filed his motion for a new trial, and in arrest of the judgment, which being overruled, he excepted and appealed to this court. The evidence in the cause shows that the money sued for was the arrearages of a pension due to John Sconce, the late husband of the plaintiff, from the government of the United States, which had come to the hands of the defendant, who had advanced that amount of money to John Sconce during his lifetime, to save his property from execution, and under an agreement with the said John, to re-imburse the defendant out of his pension-money. It further appeared from the evidence, that the defendant had procured the making out of the necessary papers to draw the money, under an agreement with the...