Corey v. Webber

• Decision Date: 25 July 1893
• Citation: 96 Mich. 357,55 N.W. 982
• Court: Michigan Supreme Court
• Parties: COREY v. WEBBER et al.

55 N.W. 982

96 Mich. 357

COREY v. WEBBER et al.

Supreme Court of Michigan

July 25, 1893

Error to circuit court, Ionia county; Vernon H. Smith, Judge.

Assumpsit by Lorenzo Corey against Oscar Webber and Clarence W. Chapin. Defendants set up a counterclaim, which was disallowed, and they bring error. Affirmed.

Frank A. Miller and William O. Webster, for appellants.

N. O Griswold, for appellee.

MONTGOMERY J.

The sole question in this case is whether the plaintiff is liable to the defendants for money coming into his hands, under the circumstances stated below, as in an action for money had and received. The facts are that on October 14, 1890, the firm of Trip & Delanoy, of Mamaroneck, N. Y., were indebted to one C T. Cadwell in the sum of $505.27, and that on that day the firm made its note, payable to the order of said Cadwell two months after date, to secure the payment of said amount. This note was, before maturity, indorsed by Cadwell to defendants and transferred in the regular course of business, and for value. In the fall of 1890 the plaintiff brought suit in a New York court having jurisdiction against Cadwell, and garnished Trip & Delanoy. Trip & Delanoy thereupon made disclosure, and paid the money over to the sheriff, who remitted it to the plaintiff. It does not appear whether the note was due at this time or not. It is claimed by the defendants that under these circumstances the plaintiff should be held to have received this money for the use of defendants, and is liable for money had and received. It is clear that the payment of this money to the plaintiff by Trip & Delanoy in no way affected the defendants' right to sue and recover upon their note. They acted at their peril in making such payment. Hosley v. Scott, 59 Mich. 420, 26 N.W. 659; Hitchcock v. Miller, 48 Mich. 603, 12 N.W. 871; Hirth v. Pfeifle, 42 Mich. 31, 3 N.W. 239. The question of whether Trip & Delanoy could themselves recover back the money paid to plaintiff cannot, perhaps, be definitely solved from the facts appearing on this record. The general rule, however, is that money paid under judicial process cannot be recovered back, the remedy being, if any, by a reversal of the judgment, and, if this cannot be done, the payor is without remedy. Bish. Cont. � 272; Walker v. Ames, 2 Cow. 428; Cobb v. Curtiss, 8 Johns. 470. Have these defendants, who have lost nothing by the action taken by the plaintiff, a greater right than Trip & Delanoy are shown to have? We think not. The remedy by an action for money had and received is comprehensive, and may be employed in a great variety of cases where the right to a fund in possession of defendant exists; but it should not be so extended as to create rights which do not exist either at law or equity. It is conceived that where no privity exists between plaintiff and defendant, and where the plaintiff has no title to the fund, and where also it appears that there is no relation of trust, legal or equitable, no right exists in the plaintiff to demand the money, and hence that no remedy by action for money had and received can be applied.

The cases cited by counsel for defendants do not, as we read them, establish any rule in conflict with the foregoing statement. In Beardslee v. Horton, 3 Mich. 563 defendant was agent of one Mrs. Culver, and, as such, collected the money in question,-a specific thing in the hands of the agent. By an assignment the title to this passed to the plaintiff. He was permitted to recover after demand and refusal. In Moore v. Mandlebaum, 8 Mich. 433, the defendant was an agent of the plaintiff, and held the money sought to be recovered as trustee. In Walker v. Conant, 65 Mich. 194, 31 N.W. 786, the money was paid to the defendant under a mistake of fact, the circumstances showing that the defendant had no right to receive the fund. He would therefore hold the money subject to an equitable trust. In that case it was said: "There need be no privity of contract alleged or proved other than such as arises out of the fact that the defendant had received the plaintiff's money, and which, in equity and good conscience, she ought not to retain." The question presented in this case, as reported in 65 Mich. 194, 31 N.W. 786, was disposed of on demurrer, but the case was again before the court after the facts had been developed on a trial, and is reported in 69 Mich. 321, 37 N.W. 292. It there appeared that the situation of Mrs. Conant had been changed, so that in equity she could not be asked to return the money. "She received it in good faith in satisfaction of a just and equitable...