Chouteau v. Filley

• Decision Date: 31 March 1872
• Court: Missouri Supreme Court
• Parties: CHOUTEAU, HARRISON & VALLE, Appellants, v. O. D. FILLEY, Respondent.

50 Mo. 174

CHOUTEAU, HARRISON & VALLE, Appellants,

v.O. D. FILLEY, Respondent.

Supreme Court of Missouri.

March Term, 1872.

Appeal from St. Louis Circuit Court.

Lackland, Martin & Martin, for appellants.

I. The court may grant any relief consistent with the case made by the evidence and embraced within the issues. The plaintiff's relief must be determined by the facts alleged and proven, and it makes no difference by what name soever he may designate his cause of action. (Ashley v. Winston, 26 Mo. 213; Northcroft v. Martin, 28 Mo. 469; Easly v. Prewitt, 37 Mo. 361.) The practice act provides that in the construction of pleading, for the purpose of determining its effect, its allegations shall be liberally constructed with a view to substantial justice. (Wagn. Stat. 1019, §§ 37, 39.) If the facts alleged and proven constitute a cause of action for money had and received, or for money paid, laid out and expended, or for any other legal cause of action, plaintiff is entitled to recover. See cases above cited.

II. Actual knowledge on the part of defendant is not necessary to render him liable. Nor is it necessary that defendant should have been actually benefited materially. (Sto. Agency, §§ 126, 128, 133, 135, 224.) A bill of exchange or a negotiable note, given in satisfaction of a debt, will support a count for money paid. (Pearson v. Parker, 3 N. H. 366; Cummings v. Hackley, 8 Johns. 202; Lapham v. Barnes, 2 Verm. 213; Cornwall v. Gould, 4 Pick. 447; Douglass v. Moody, 9 Mass. 553; Peters Barnhill, 1 Hill, 234, 236, note; Wetherby v. Mann, 11 Johns. 518; McLellan v. Crofton, 6 Greenl. 333; Ingalls v. Dennett, id. 80; Clark v. Foxcroft, 7 Greenl. 355; Dole v. Hayden, 1 Greenl. 152.) Assumpsit for money had and received is a liberal equitable action, and lies wherever, by the ties of natural justice and equity, no rule, policy or strict law intervening to prevent, the defendant ought to refund the plaintiff's money, and cannot with good conscience retain it. (Irvine v. Hanlin, 10 Serg. & R. 219; Bogart v. Nevins, 6 Serg. & R. 369; Morris v. Tarin, 1 Dall. 148; Barr v. Craig, 2 Dall. 154; Murphy v. Barron, 1 Harr. & Gill, 258; Wiseman v. Lyman, 7 Mass. 288; Wright v. Butler, 6 Wend. 290; Eddy v. Smith, 13 Wend. 488; Guthrie v. Hyatt, 1 Harrington, 447; Farmers' Bank v. Brown, id. 330; Tevis v. Brown, 3 J. J. Marsh. 175.) There need be no privity of contract between the parties in order to support the action, except that which results from one man's having another's money which he has no right conscientiously to retain. (Mason v. Waite, 17 Mass. 563; Hall v. Marston, id. 579; Eagle Bank v. Smith, 5 Conn. 71; Dickson v. Cunningham, Mart. & Yerg. 221.) But negotiable notes received by defendant are often regarded as money. (Floyd v. Day, 3 Mass. 405; Hemmenway v. Bradford, 14 Mass. 122; Willie v. Green, 2 N. H. 333; Clark v. Pinny, 6 Cow. 297.) Bank notes and any other property received as money will support the action as if money itself had been received. (Mason v. Waite, 17 Mass. 560; Ainslee v. Wilson, 7 Cow. 662; Arms v. Ashley, 4 Pick. 74; Thompson v. Babcock, Bryant, 24.) The action for money had and received will lie where money has been received by mistake of facts or without consideration, or where the consideration has failed. (McQueen v. State Bank of Indiana, 2 Carter, Ind., 41.) In general it may be maintained wherever the evidence shows that the defendant has received or obtained possession o money belonging to plaintiff which he ought in equity and good conscience to refund to him. (Lockwood v. Kelser, 4 N. H. 185.)

Sharp & Broadhead, for respondent.

I. It is not claimed by the plaintiff that there is any liability of defendant on the paper or draft offered in evidence, either as drawer, indorser or acceptor; but that there was a loan of money by plaintiff to defendant, at his request and for his benefit and accommodation. It is not pretended that Filley, the defendant, or his agent Roberts, ever requested plaintiff to draw the check or to hand it to How, or that he ever agreed to indorse for How, or to become security for him to the plaintiff. Plaintiff drew the check and handed it to How, for what purpose it does not appear; nor does it appear that How was in any sense agent for defendant, or even that How requested plaintiff to draw the check in that way, or that he requested him to draw it at all. How evidently intended to get the money on it. Filley was not indebted to plaintiff, so that the check in question was not drawn to pay any such debt. The only ground upon which plaintiff can pretend to maintain this action is that plaintiff authorized Filley to draw the money by making the check payable to his order; that Filley then took the check, and, instead of drawing the money himself, indorsed it and delivered it to How, and thereby authorized How to draw it. And this brings up the question whether the indorsement of Roberts was the indorsement of Filley; in other words, whether Roberts was authorized to indorse and deliver the paper to How. If this was the transaction, and if Roberts so understood it--that is, that How was to get the money on the check as if it came from Filley--it is strange that he as Filley's agent took no receipt or note, or obligation of any kind, from How. But the evidence shows that Roberts was not authorized to make any such indorsement for Filley. Filley was engaged in the mercantile business, selling goods. Roberts was in the habit of indorsing checks for collection or for deposit; never did indorse for the accommodation of any one; never signed a note or other paper by which Filley was bound to any one for the payment of money. The principal will be bound for the acts of his agent within the scope of the general authority conferred on him. (Sto. Agency, 115, § 126; Withington v. Herring, 5 Bing. 442.) The scope of the general authority in this case did not authorize the indorsement or signing of paper for accommodation, or to give notes or obligations for borrowed money. The authority of a general agent is confined strictly to the business in which he is engaged.

II. But this is not a suit on the paper. The plaintiff has trusted nothing to the act of Roberts as agent. The plaintiff was not deceived by the act of Roberts. It did not deal with Roberts in the transaction at all, and Filley knew nothing of Roberts' act in indorsing the paper; he accepted no benefit from it. Roberts was certainly not authorized to give away Filley's money to any one who might come along. Suppose he had taken the check and indorsed it, he certainly was not authorized within the scope of his agency to hand the money over to How; and if he was not, what authority had he to hand the check over to How after indorsing it, so as to enable him to get the money on it? If it be true that Roberts was authorized to indorse checks payable to Filley's order, he certainly was not authorized to give...