Federal Land Bank v. International Life Ins. Co.

• Decision Date: 04 March 1924
• Docket Number: No. 18501.,18501.
• Citation: 260 S.W. 822
• Parties: FEDERAL LAND BANK OF ST. LOUIS v. INTERNATIONAL LIFE INS. CO.
• Court: Missouri Court of Appeals

260 S.W. 822

FEDERAL LAND BANK OF ST. LOUIS v. INTERNATIONAL LIFE INS. CO.

No. 18501.

St. Louis Court of Appeals, Missouri.

March 4, 1924.

Appeal from St. Louis Circuit Court; Prank A. Landwehr, Judge.

"Not to be officially published."

Action by the Federal Land Bank of St. Louis against the International Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Emil E. Brill, Jr., and Charles G. Revelle, both of St. Louis, for appellant.

Jones, Rocker, Sullivan & Angert and Ralph T. Finley, all of St. Louis, for respondent.

BECKER, J.

This is an action on common count in assumpsit for money had and received. Trial was had before the court without a jury. No declarations of law were asked or given, nor did the defendant file a demurrer to the evidence. Judgment resulted for plaintiff and against the defendant for $676.30, being the full amount sued for.

Plaintiff's petition admittedly is in proper form in an action for money had and received, which is an action at law and not in equity. It is an action "so favored by courts and is so flexible in form and relief that it levies tribute indifferently on equitable as well as strictly legal principles. * * * The accepted rule is that `the action lies where defendant has received or obtained possession of the money of the plaintiff, which, in equity and good conscience, he ought to pay over to plaintiff.'" Third National Bank of St. Louis v. St. Charles Savings Bank. 244 Mo. 554, loc. cit. 581, 149 S. W. 495; Whitecotton v. Wilson (Mo. App.) 197 S. W. 168, and cases therein cited.

In an action at law, where the case is submitted to the trial court without any declarations of law being asked or given, the court is intrusted with the decision of both law and fact, and if any substantial evidence supports the finding on the facts, and if any theory of the law will support the judgment under the evidence and the pleading, the judgment will be affirmed. Winfrey v. Matthews, 174 Mo. App. 713, 161 S. W. 583; Sommer v. Bryson, 168 Mo. App. 335, 153 S. W. 1069. In the situation we have before us it is only necessary that we consider the evidence adduced on behalf of plaintiff, and such evidence, if any, adduced on behalf of defendant as may be viewed in support thereof, and all reasonable inferences to be drawn therefrom. We have done this, and are satisfied that plaintiff has adduced testimony which, if taken as true, sufficiently sustains the judgment of the court below. Winfrey v. Matthews, supra.

The evidence adduced on behalf of the plaintiff, if taken as true, tended to show a payment by it to the defendant of $11,604.98 to take up or pay off a mortgage held by the defendant company on lands in Massac county, Ill., belonging to James W. Corley and Owen Corley and his wife; whereas the actual amount in full due the defendant as holder of said mortgage was in fact but $11,004.98. The mortgage in question had originally been executed and delivered by one Lillie and wife, who in turn sold the mortgaged lands to the Corleys. The Corleys, as the time of the maturity of the mortgage approached, being desirous of renewing it, entered into negotiations with one De Buchananne to procure a renewal of the loan held by the defendant. There is evidence that De Buchananne proceeded with his negotiations and apparently obtained the consent of the defendant company to renew the mortgage, and for his services asserted a claim against the Corleys for commissions in the sum of $500 and an attorney's fee of $100 for one Wilson for services done in connection with the matter of obtaining the defendant's consent to said renewal. The Corleys, however, made arrangements with the plaintiff for a loan of $9,700, and to this sum so placed to their credit by the plaintiff the Corleys added $2,768.29 in cash, so that they had in the hands of the plaintiff $12,468.29, out of which they instructed plaintiff to pay off the mortgage held by the defendant company, amounting to $11,004.98, the balance to be used in taking up an outstanding second mortgage on the property in the sum of $939.90 and certain charges incidental to the loan.

It seems that some time prior to the date on which the Corleys gave the plaintiff written instructions to pay the defendant said $11,004.98 in payment of their mortgage debt due them, that the...