Jensen v. Miller
| Citation | 162 Wis. 546,156 N.W. 1010 |
| Parties | JENSEN v. MILLER. |
| Decision Date | 14 March 1916 |
| Court | United States State Supreme Court of Wisconsin |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Racine County; E. B. Belden, Judge.
Action by Jens C. Jensen against William Henry Miller. Judgment for plaintiff, and defendant appeals. Affirmed.
Action to recover $100 paid defendant as part purchase price of a farm. Defendant acted as agent for one Hansche in the sale of the latter's farm to the plaintiff. A written contract of sale was entered into between plaintiff and Hansche, which recited that $100 of the purchase price was paid. Defendant concedes that through no fault of plaintiff Hansche was unable to convey the title bargained for. After Hansche's default and while the money paid was still in the hands of defendant, a demand for its repayment to plaintiff was made. Defendant refused to pay back the money, though there was no provision for its forfeiture in case sale was not made. Subsequently he paid one-half thereof to Hansche and retained the remainder. Upon these facts found, and not disputed, the court entered judgment for plaintiff, and the defendant appealed.
H. G. Smieding, of Racine (Fulton Thompson, of Racine, of counsel), for appellant.
Simmons & Walker, of Racine, for respondent.
VINJE, J. (after stating the facts as above).
The chief contention of defendant is that the action cannot be maintained against him because he was the agent of a disclosed principal; that this is an action upon a contract made between plaintiff and Hansche, and, since in such a contract defendant did not bind himself as surety or otherwise, the action must be brought against the principal, and not the agent, citing McCurdy v. Rogers, 21 Wis. 199, 91 Am. Dec. 468;Charboneau v. Henni, 24 Wis. 250;West v. Wells, 54 Wis. 525, 11 N. W. 677, and numerous decisions from other jurisdictions.
[1] The claim is further made that, if money is paid to a known agent for the use of his principal, an action for money had and received cannot be maintained against the agent, even though he has not turned it over to his principal, citing 2 Corpus Juris. p. 821, § 495; 1 Ad. Contr. (Morgan's Ed.) § 87; Pars. Contr. 79; and numerous cases. The present action is one for money had and received. It is not based upon any provision contained in the contract entered into between plaintiff and Hansche. It arises from the implied agreement to return the part of the purchase price paid if conveyance is not made as agreed upon. The person in possession of the money has without consideration been enriched at the expense of plaintiff, hence the latter's right to recover it back. Siggins v. Chicago & N. W. Ry. Co., 153 Wis. 122, 140 N. W. 1128. The cases cited to the first claim therefore do not apply, since the action is not founded upon covenants made in a contract with the principal. As to the second claim, there is a division of authorities.
[2] Practically all...
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