Lemans v. Wiley

• Decision Date: 04 January 1884
• Docket Number: 8127
• Citation: 92 Ind. 436
• Parties: Lemans v. Wiley
• Court: Indiana Supreme Court

92 Ind. 436

Lemans v. Wiley

No. 8127

Supreme Court of Indiana

January 4, 1884

From the Wabash Circuit Court.

Judgment reversed, with costs.

M. H Kidd, N. G. Hunter, M. B. Williams and T. E. Johnson, for appellant.

W. G Sayre and J. T. Hutchens, for appellee.

Zollars J. Howk, C. J., and Elliott, J., dissent.

OPINION

Zollars, J.

The complaint by appellee against appellant is for money had and received. Trial, verdict, and, over a motion for a new trial, judgment for appellee for $ 211.75. The overruling of the motion for a new trial is assigned as error in this court. One of the causes urged for a new trial is that the verdict is not sustained by sufficient evidence.

The following are some of the cases in which an action for money had and received will lie:

"If one man has obtained money from another through the medium of oppression, imposition, extortion or deceit, such money is, in contemplation of law, money received for the use of the injured party. It is not the money of the wrongdoer, he has no right to retain it; and the law, therefore, implies a promise from him to return it to the lawful owner, whose title to it can not be destroyed or annulled by the fraudulent and unjust dispossession. * So, where money has been received by mistake of facts, or without consideration, or upon a consideration that has failed, it may be recovered back. So, money received under a special contract that has been rescinded, may be recovered in an action for money had and received." McQueen v. State Bank, 2 Ind. 413. See, also, Muir v. Rand, 2 Ind. 291; Hatten v. Robinson, 4 Blackf. 479; Ferguson v. Dunn, 28 Ind. 58; Hunt v. Milligan, 57 Ind. 141.

"An action of assumpsit for money had and received is an equitable remedy that lies in favor of one person against another, when that other person has received money either from the plaintiff himself or third persons, under such circumstances, that in equity and good conscience he ought not to retain the same, and which, ex aequo et bono, belongs to the plaintiff." 4 Wait Actions and Defenses, p. 469. Other cases might be instanced, but these are sufficient for present purposes.

Does the evidence in this case make a case against appellant for money had and received?

The undisputed facts in the case are as follows, viz.: Jackson Wiley, the husband of appellee, died in March, 1877, the owner of a tract of land, which descended to his children and his widow, appellee. This land was purchased from appellant by said Jackson Wiley, and at the time of his death $ 400 and over of the purchase-money was unpaid. For this appellant held two notes executed by said Wiley on the 28th day of August, 1875, one for $ 100 and one for $ 300, the latter being secured by mortgage upon the land. In September, 1877, appellant being in need of money, called upon appellee with the notes and said to her that he wanted the money on the notes held by him (which were then overdue), and that if he could not get some of the money he would have to foreclose the mortgage. At the time of this call appellant was indebted to one English upon a promissory note in the sum of $ 103. Appellee had sold personal property to English, and in part payment therefor had become the owner of his note on appellant. English owed her a balance over and above the note. Appellee put this note into the possession of appellant, and paid him $ 12 in cash. Upon receiving this note and the $ 12 in cash, the following endorsement was made upon the $ 100 note held by appellant, viz.: "Wabash, September 7th, 1877. Received of Charlotte Wiley one hundred and fifteen dollars in full of this note and interest." This credit consisted of the English note so received by appellant, and the $ 12 in cash; and they together equalled the principal and interest of the note upon which the credit was so made.

After this endorsement was so made, the note containing it was surrendered to appellee, and she has held it ever since, and made no offer to return it to appellant. On the same day this note was so surrendered, a son of appellee paid to appellant $ 46.70, which was credited upon the $ 300 note held by appellant, as follows: "46.70. Wabash, September 7th, 1877. Received of James Wiley forty-six and 70/100 dollars." On the next day appellant received of appellee, or of the money due her from English, $ 78, and the same was endorsed upon the $ 300 note, as follows: "$ 78. September 8th, 1877. Received by the hands of C. Wiley seventy-eight dollars, to apply on the within note."

Appellee wanted the endorsements made on the notes, so as to show that she had paid the money. After the endorsements were made, they were read over to her. At that time appellee was living upon the land, and there was some talk about paying off the mortgage.

William Wiley, a son of appellee, told her that if the land should be sold she would get her money back. In the fall of 1878, the residue of the $ 300 note not having been paid, appellant foreclosed his mortgage for the balance due upon that note, giving credit for the amount endorsed upon it. To this foreclosure proceeding appellee was a party.

As we have said, the above are the undisputed facts in the case; they are gathered, in the main, from the testimony of appellee.

Appellant testified that all of the money received by him, including the English note, was received as payments upon the notes held by him, and that, in pursuance of such payment, he surrendered one of said notes to appellee. In...