Mudd v. Morris
| Decision Date | 06 November 1923 |
| Citation | 255 S.W. 921,213 Mo.App. 485 |
| Parties | JOE B. MUDD, Respondent, v. M. SMITH MORRIS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Lincoln County.--Hon. Edgar B Woolfolk, Judge.
AFFIRMED (conditionally).
Hostetter & Haley for appellant.
Payment ordinarily means a discharge and settlement in money; hence a simple plea of payment without more means in law payment in money. Payment in anything other than in money rests on an independent agreement and the substantive facts of such agreement must be pleaded and cannot be shown under a simple plea of payment. Bank v. Stewart, 136 Mo.App. l. c 34; Moore v. Renick, 95 Mo.App. l. c. 210; Rider v. Culp, 68 Mo.App. l. c. 530; Sutton v. Libby, 201 S.W l. c. 617.
McGinnis & Smith for respondent.
(1) Under the common counts any evidence may be given, even of fraud, going to establish the fact that defendant has obtained money or property for which he should account. Garnet & Allen Paper Co. v. Midland Pub. Co., 156 Mo.App. 187, 136 S.W. 736. It lies for money paid by mistake or for money gotten through imposition (express or implied), or an undue advantage taken of plaintiff's situation. It is a form of action favored in our State. St. Louis Sanitary Co. v. Reed, 161 S.W. 315. (2) Property other than money. Musick v. Richardson, 6 Mo. 171. 1 Abbott's Trial Evidence (3 Ed.), at page 742 and cases cited thereunder; McCormick v. Obanion, 153 S.W. 267.
This is an action for money had and received in the amount of seven hundred dollars. The cause was tried on the 6th day of April, 1922, before the court and a jury and resulted in a verdict and judgment in favor of the plaintiff for said amount, together with legal interest thereon, from which judgment the defendant appeals.
It appears from the evidence, adduced by the plaintiff at the trial, that prior to the 28th day of April, 1920, plaintiff contracted to sell to defendant his farm for the sum of twenty-one thousand dollars; that by the terms of the contract plaintiff was to carry twelve thousand dollars of the purchase price of said farm for a period of five years at six per cent interest per annum, the same to be secured by a note and deed of trust on said farm, executed by defendant and made payable to the plaintiff; that on said 28th day of April, 1920, it was agreed between the plaintiff and defendant that if the plaintiff would pay to the defendant the difference between the six per cent, which the defendant was to pay the plaintiff on the deferred payment of twelve thousand dollars, and seven per cent at which defendant could borrow the twelve thousand dollars, together with one hundred dollars, which defendant would have to pay as a commission in obtaining the twelve thousand dollars, defendant would pay the plaintiff the said sum of twelve thousand dollars in cash; that the amount which the plaintiff so agreed to pay was seven hundred dollars and that plaintiff paid this sum, as hereinafter stated, on the 28th day of April, 1920, to the defendant for the purpose and consideration above set out.
The evidence further shows that on April 28, 1920, the defendant was indebted to the plaintiff for certain articles purchased by him from the plaintiff and on said day plaintiff executed and delivered to the defendant the following receipt:
"Bowling Green, Mo., April 28, 1920.
Received of M. Smith Morris all amounts in full due me on account of purchase made at sale of Joe B. Mudd, March 24, 1920.
J. B. MUDD."
This receipt, together with a check for four hundred dollars which was executed by the plaintiff in favor of and delivered to the defendant, constitute the basis of plaintiff's claim of the alleged payment by him of the sum of seven hundred dollars to the defendant as a consideration for the payment to him by defendant of the sum of twelve thousand dollars in cash in lieu of the note of twelve thousand dollars, and which payment of twelve thousand dollars the defendant failed to make.
Defendant admitted at the trial that he received the said receipt and the four hundred dollar check, but claimed that the same were accepted by him under an agreement between him and the plaintiff, whereby plaintiff agreed to pay him the sum of seven hundred dollars for loss of time, and expenses incurred, in endeavoring to procure for plaintiff the sum of twelve thousand dollars, in cash, in lieu of a note for said twelve thousand dollars secured by deed of trust on the land purchased by him from the plaintiff.
The appeal assigns error in the denial of the defendant's request to charge the jury that "in no event can plaintiff recover anything in this action on account of articles purchased by defendant at plaintiff's sale covered by the receipt read in evidence."
We are unable to yield our assent to the defendant's contention that the special demurrer should have been given on the ground that the petition declared upon money had and received and that this action can be maintained only by showing that the defendant has actually received money which in equity and good conscience he ought not to keep.
It will be noted that the defendant owed plaintiff a money demand and that he received from plaintiff a discharge of said money obligation and accepted the same as money in part payment of the money demand which plaintiff owed him upon defendant's obtaining for plaintiff the sum of twelve thousand dollars in cash. In other words the amount that defendant owed plaintiff was regarded and treated as equivalent to money both by the plaintiff and defendant. The fact that the parties did not go through the useless procedure of actually handling money instead of what they considered as equivalent to money...
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