Central Manufacturing Company v. Montgomery
| Decision Date | 06 June 1910 |
| Parties | CENTRAL MANUFACTURING COMPANY, Respondent. v. EMMA MONTGOMERY, Executrix, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the St. Louis City Circuit Court.--Hon. William M Kinsey, Judge.
Judgment affirmed.
Frank K. Ryan for appellant.
(1) The defendant's motion in arrest of judgment should have been sustained on the point that each count of the respondent's petition is fatally defective in not alleging that the respondent had the possession or the right to the immediate possession of the money charged to have been converted, and therefore fails to state a cause of action the omission of such an essential allegation being a defect that is not cured by verdict. Bank v. Land Co., 152 Mo. 145; House Fur. Co. v. Wallace, 21 Mo.App. 128; Golden v. Moore, 126 Mo.App. 518; State v Bacon, 24 Mo.App. 403; Pier v. Heinrichoffen, 52 Mo. 333; Scott v. Robards, 67 Mo. 289; Frazer v. Roberts, 32 Mo. 457; Jones v. Tuller, 38 Mo. 363; Clinton v. Williams, 53 Mo. 141. (2) Appellant's motion for a new trial should have been sustained, because as to each count of the respondent's petition there was a failure of proof; there being no evidence going to show that P. H. Montgomery converted or received any of the money mentioned in respondent's petition, and respondent's evidence only tended to prove a cause of action not set forth in such petition. Sandeen v. Railroad, 79 Mo. 282; Timber Co. v. Railroad, 180 Mo. 420; Revised Statutes 1899, sec. 798; Petit v. Bouju, 1 Mo. 64; Kreher v. Mason, 33 Mo.App. 297; Knecht v. Savings Inst., 2 Mo.App. 563; Kenneth Co. v. Bank, 96 Mo.App. 125; McKeen v. Bank, 74 Mo.App. 281; State v. Reed, 125 Mo. 51; Waldhier v. Railroad, 71 Mo. 518; Carson v. Cummings, 69 Mo. 325; Moore v. Hutchinson, 69 Mo. 429. (3) Money had and received will not lie for that which is taken under a claim of right. Bank v. Rice, 161 F. 828; Ferguson v. Carrington, 9 B. & C. 59; Silway v. Fogg, 5 M. & W. 83; Skeen v. Johnson, 55 Mo. 25; Finley v. Bryson, 84 Mo. 664; Sandeen v. Railroad, 79 Mo. 282.
B. N. Simpson for respondent.
(1) This action is in assumpsit on the common count for money had and received by defendant to the use of plaintiff. The petition states a cause of action in assumpsit. Maxwell on Code Pl. 247; Richardson v. Drug Co., 92 Mo.App. 515; Bank v. Bank, 116 Mo. 558; Davis v. Krum, 12 Mo.App. 286; Tamm v. Kellogg, 49 Mo. 118. (2) The cause of action in assumpsit stated in each count of respondent's petition was proved and the referee so found. Banking Co. v. Donovan, 195 Mo. 262; 2 Greenleaf on Ev. (16 Ed.), 118; Chitty on Contracts, 274; Jacoby v. O'Hearn, 32 Mo.App. 566. (3) There was no valid contract and Montgomery knew it when he took the money. 2 Perry on Trusts, 821; 1 Story on Eq. Jur., sec. 468; Cook on Corp., 709; Hutchinson v. Greene, 91 Mo. 367; Hill v. Mining Co., 119 Mo. 9; Alta Co. v. American Co., 78 Cal. 367; Colorado Co. v. American Co., 97 F. 843; Land Co. v. Webster, 75 Mo.App. 457; 1 Thompson on Corp., sec. 458; St. Louis Co. v. Partridge, 8 Mo.App. 570.
Plaintiff commenced this action to the February term, 1906, of the St. Louis Circuit Court, by filing its petition, in three counts. The first count charges that plaintiff is a corporation organized under the laws of Missouri, and that the defendant is the executrix of the estate of P. H. Montgomery, deceased; that on the 7th day of July, 1902, said P. H. Montgomery being then the President of the plaintiff corporation and in full and sole charge of the business affairs and accounts of said company, wrongfully appropriated to his own use the sum of five hundred dollars of the money of plaintiff; that since the aforesaid appropriation, the plaintiff herein has received no consideration, nor has repayment to said company of said five hundred dollars, or any part thereof, been made; that defendant has funds and property in her hands as such executrix, sufficient for the payment of plaintiff's claim; that payment of said claim has been demanded and payment thereof refused; that the defendant is therefore indebted to plaintiff in the sum of five hundred dollars and interest thereon from July 7, 1902.
The second count is the same as the first, except the amount alleged to have been appropriated is fifteen hundred dollars, and alleges that the appropriation was made on the 21st day of July, 1902.
The third count is the same as the first, except the date of the appropriation is given July 28, 1902.
To this petition in due time the defendant answered, admitting the relation of defendant to P. H. Montgomery, as stated in the petition to be true, and so far as the issues now are concerned the balance of the answer was a general denial. In addition to the answer to plaintiff's cause of action, the defendant filed a counterclaim, asking for a judgment for nine hundred dollars and interest on a note given by plaintiff to said P. H. Montgomery, and also alleging that the corporation was indebted to her as executrix in the sum of $ 52.50 on an account stated. The plaintiff replied, denying the counterclaim.
On December 4, 1906, by stipulation of the parties, John M. Holmes was appointed referee to try all the issues made by the pleadings. The referee heard the evidence and made by his report finding for the plaintiff on each of the counts in its petition, and finding for the defendant on the nine hundred dollars item in her counterclaim, and for the plaintiff on the other item of the counterclaim. To the report of the referee, defendant in due time filed her exceptions, and which were by the court overruled, and after an unsuccessful effort to obtain a new trial, and after her motion in arrest of judgment had been overruled, the defendant appealed to the St. Louis Court of Appeals, and by an order of that court, the cause is here.
The first question for consideration on this appeal is the sufficiency of the petition which defendant first assailed by motion in arrest of judgment and contends that it fails to state a cause of action, in that it does not allege that plaintiff ever had possession of the money in controversy, or the right to its possession.
If we treat the plaintiff's cause of action as one purely in conversion, then under the following authorities defendant's point is well taken: Bank v. Tiger Tail Mill & Land Co., 152 Mo. 145, 53 S.W. 902; Golden v. Moore, 126 Mo.App. 518, 104 S.W. 481.
The respondent contends that the action is not in conversion but for money had and received. The petition contains unnecessary allegations and contains allegations generally found in both conversion and assumpsit. In one part of the petition it is charged that P. H. Montgomery appropriated to his own use the sum of five hundred dollars from the money of said corporation. And it is also charged that he was in full and sole charge of the business affairs and accounts of the company, and on account of his action, the defendant became indebted to the plaintiff in the sums of money named in the different counts, with interest thereon from the dates of the appropriation. It will be noticed that no claim for damages is made in any part of the petition, but after pleading the facts, the petition alleges that the defendant is indebted to he plaintiff for the sums of money so appropriated by her husband.
No attack was made on the sufficiency of the petition until the motion in arrest of judgment was filed. While the defendant has the right to object to the introduction of evidence on account of the insufficiency of the petition, and also has the right to raise an objection to the petition by motion in arrest of judgment, this practice is one which is only tolerated, and if a petition is sufficient to sustain a judgment, the objections will be overruled. [McKinney v. Northcutt, 114 Mo.App. 146, 89 S.W. 351; Heether v. City of Huntsville, 121 Mo.App. 495, 97 S.W. 239; Fisher v. St. Louis Transit Co., 198 Mo. 562, 95 S.W. 917.]
In this case the rule should be strictly enforced. The plaintiff's petition demanded a judgment against the defendant in the sum of twenty-five hundred dollars, and the defendant in due time filed her counterclaim asking for a judgment of over twelve hundred dollars against the plaintiff. By agreement of the parties the court appointed a referee before whom the parties appeared and all the evidence was taken, report made in favor of the plaintiff on its cause of action, and in favor of the defendant on one of her counterclaims, and a judgment was rendered in favor of the party in whose favor the balance was found. After all these things had been done by agreement of the parties, the defendant challenged the sufficiency of the petition.
The petition, as one in conversion, was not fatally defective, but was subject to amendment after the motion in arrest of judgment had been filed. [Golden v. Moore, 126 Mo.App. 518, 104 S.W. 481.] The mere fact that the petition alleged that the defendant had appropriated the money to his own use, did not make the plaintiff's cause an action for conversion. [Antonelli v. Basile, 93 Mo.App. 138.] In that case Judge SMITH said: "The allegation therein that the defendant had converted the money received, to his own use, was an unnecessary and redundant allegation which was but mere surplusage. The action for money had and received can be maintained irrespective of whether it is maintainable as an action of trover and conversion. [Brinkman v. Bank, 116 Mo. 558."]
In York v. Farmers Bank, 105 Mo.App. 127, 79 S.W. 968, the court in discussing this question, used the following language: ...
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