Ford-Davis Mfg. Co. v. Maggee

• Decision Date: 03 July 1921
• Docket Number: No. 16531.,16531.
• Parties: FORD-DAVIS MFG. CO. v. MAGGEE.
• Court: Missouri Court of Appeals

233 S.W. 267

FORD-DAVIS MFG. CO. v. MAGGEE.

No. 16531.

St. Louis Court of Appeals. Missouri.

July 3, 1921.

Rehearing Denied July 18, 1921.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by the Ford-Davis Manufacturing Company against Charles L. Maggee. From a judgment for defendant, plaintiff appeals.. Affirmed.

Perry Post Taylor, Emil Mayer, and Ben L. Shifrin, all of St. Louis, for appellant.

M. U. Hayden, of St. Louis, for respondent.

DAUES, J.

This is an action for money had and received. Petition alleges that one E. W. Oelfcken, secretary and treasurer of the plaintiff corporation, obtained a cashier's check for $1,027, issued February 27, 1917, to the order of the plaintiff by the Third National Bank of St. Louis, and indorsed same as such secretary and treasurer over to defendant, and that defendant two days later returned same in the form of his (defendant's) own check, made payable to Oelfcken personally; that the check passed to the defendant without consideration; that plaintiff received no consideration therefor; that defendant, being so indebted to plaintiff, promised and agreed to pay same to plaintiff ; that the plaintiff was at the time the owner of and entitled to the possession of said check.

The answer was a general denial, and, answering further, averred that defendant received the check, but only for and as the agent of Oelfcken, and that at the time of the transaction plaintiff was indebted to Oelfcken in a sum greater in amount than the face of the check. The reply denies all new matters in the answer, except that defendant collected the proceeds of this check. The case was tried before the circuit court without a jury. Judgment was for the defendant. Plaintiff appeals.

The suit was instituted originally by appellant and its assignee for benefit of creditors jointly. The assignee being eliminated, the appellant and respondent alone are now here face to face on appeal.

The facts are few and undisputed. E. W. Oelfcken, a physician, with offices at Olive street and Compton avenue, St. Louis, was secretary and treasurer of the Ford-Davis Manufacturing Company, and Oelfeken's office was diagonally across the street from the defendant's drug store. Dr. Oelfcken had been cashing checks at this drug store, and, in some instances at least, checks drawn by the Ford-Davis Manufacturing Company were there cashed. Oelfcken secured a cashier's check from the Third National Bank for the amount named, made payable to the order of the Ford-Davis Manufacturing Company. He testified that he was leaving town that day, and, his bank having closed, he sent the cashier's check to the defendant's drug store for safe-keeping. Same was indorsed, "Pay to the order of C. L. Maggee, Ford-Davis Mfg. Co., E. W. Oelfcken, Secy. & Treas." Defendant took the check and deposited same to his credit in the Cass Avenue Bank, through which same was cleared and paid. Two days later Dr. Oelfcken returned to the city, and defendant returned the money by another check drawn by Maggee on his own account to Oelfcken personally. The defendant testified there was no special reason for drawing the check in this manner, and that it had not occurred to him to draw it otherwise.

No conversation passed between Oelfcken and the defendant concerning the check, as the defendant understood that he was to hold or deposit the check as an accommodation to Dr. Oelfcken, and give it back to him when he called for it. Defendant did return the exact amount to Dr. Oelfcken after two days, when Oelfeken returned to the city. There was no demand for the money made of the defendant until. March 23, 1917, nearly a month afterwards.

The court refused the first declaration of law requested by plaintiff, but gave its declarations No. 2 and No. 3. Declaration of law No. 1 was to the effect that if the check was payable to plaintiff's order and was its property, but was indorsed by Oelfcken to his own order, and that defendant received the proceeds thereof, but gave no consideration therefor to the plaintiff, and that plaintiff was not indebted to the defendant at the time, then the finding of the court must be for the plaintiff. Declaration of Law No. 2, given at the request of plaintiff, declared that the evidence whether the Ford-Davis Manufacturing Company, plaintiff, was indebted to Oelfcken at the times mentioned in the pleadings and evidence was immaterial, and should be disregarded, and to like effect declaration No. 3 excluded such evidence as being incompetent.

Appellant's complaint as addressed to this court is that the court erred in refusing the first declaration of law requested by it, and, again, that it was error for the court "on the facts undisputed to find for the defendant and fail to find for the appellant."

An action of this character, being one for money had and received, has been specially treated by our courts. As is said in Richardson v. Drug Co., 92 Mo. App. loc. cit. 521, 39 S. W. loc. cit. 399:

"The simplicity of the action is indeed what commends it to the favor of the courts. A plaintiff is exonerated from the necessity of stating the special circumstances of his case, and therefore, from the danger of a nonsuit by a variance between his allegations and the proof, while as to the defendant: `it is the most favorable way in which he can be sued; he can be liable no further than the money he has received, and against that may go into every equitable defense upon the general issue; he may claim every equitable allowance; he may prove a release without pleading it; in short, he may defend himself by everything which shows that the plaintiff ex æquo et bono is not entitled to the whole of his demand.' Moses v. Macferlan, 2 Burr. 1005."

See, also, York v. Bank, 105 Mo. App. 127, 79 S. W. 908; Crigler v. Duncan, 121 Mo. Alp. 381, 99 S. W. 61; Johnson-Brinkman Com. Co. v. Bank, 116 Mo. 558, 22 S. W. 813, 38 Am. St. Rep. 615.

These adjudications bespeak a flexibility of the action, the purpose being to afford relief...