Mut. Sav. Inst. v. Enslin

• Decision Date: 31 March 1870
• Citation: 46 Mo. 200
• Parties: THE MUTUAL SAVINGS INSTITUTION, Plaintiff in Error, v. CHAS. ENSLIN, Defendant in Error.
• Court: Missouri Supreme Court

46 Mo. 200

THE MUTUAL SAVINGS INSTITUTION, Plaintiff in Error,

v.CHAS. ENSLIN, Defendant in Error.

Supreme Court of Missouri.

March Term, 1870.

Error to St. Louis Circuit Court.

Chapin, for plaintiff in error.

Money paid by the plaintiff to the defendant under a bona fide forgetfulness or ignorance of facts which did not entitle the defendant to receive it, or under a mistake in law under circumstances that would make it inequitable and unconscientious for the defendant to retain it, may be recovered back as money had and received. (Kelly v. Solari, 9 M. & W. 54; 2 Smith's Lead Cas. 543; Broome's Leg. Max. 177, 237.)

Taussig & Kellogg, for defendant in error.

Plaintiff acted with full knowledge of all the facts, and therefore is not entitled to relief from a mistake of law. (Chit. on Cont. 490-1; 2 Greenl. on Ev., § 123, note 8; Tyler v. Smith, 18 B. Monr. 793; Marietta v. Slocomb, 6 Ohio St. 471.)

CURRIER, Judge, delivered the opinion of the court.

This case comes up on an agreed statement of facts, from which it appears that the firm of Koehls & Golberg held a note of some $430 of one Heiderman, of Peoria, Illinois, which they indorsed in blank, and delivered to the plaintiffs for collection and as collateral security. It appears further that the firm of Koehls & Golberg was subsequently dissolved by mutual consent; that Golberg died a few days after the dissolution, and that Koehls, before any administrator was appointed on Golberg's estate, or rather before the administrator had given a bond authorizing him to deal with the firm affairs, made a written assignment and transfer of the Heiderman note to a firm creditor, in liquidation and settlement of a partnership indebtedness and that the assignee thereupon notified the plaintiffs of such transfer and assignment of said note. Subsequently, as the agreed statement further shows, the defendant was appointed to administer upon Golberg's estate, and in due time gave the bond required by statute when the administrator of a deceased partner takes charge of the partnership affairs (R. C. 1855, p. 124, § 60), and thereupon demanded of the plaintiffs the Heiderman note or its proceeds, the debt for which it was originally pledged having been paid. The plaintiffs yielded to this demand, and directed the proceeds of the note to be paid to the defendant, therein disregarding the notice which they had received from the assignee claimant under the Koehls transfer.

The defendant accounted with the Probate Court for the fund thus acquired, as constituting a part of the firm assets of Koehls & Golberg, and subsequently paid it out to the firm creditors under and by virtue of an order of that court.

In the meanwhile, and before the fund was finally distributed, Bredow, the assignee under Koehls, sued the plaintiffs for a conversion of the Heiderman note, claiming it as his in virtue of the assignment. The plaintiffs gave the defendant due notice of the pending of that suit, and that they should look to him for reimbursement in case their defense should prove unavailing.

They defended the suit, but judgment went against them for the amount of the note, notwithstanding its proceeds had been paid over to the defendant in this suit. (See Bredow v. Mutual Savings Institution, 28 Mo. 181.)

The plaintiff then paid off the judgment and took an assignment of Bredow's claim, and thereupon instituted the present suit against the defendant to recover back the moneys paid to him as above stated. The case has been in this court once before. (See Mutual Savings Institution v. Enslin, 37 Mo. 453.)

The agreed statement shows that an error has been committed, by which one of the parties must suffer. The proceeds of the Heiderman note have gone to the benefit of the creditors of Koehs & Golberg twice: once to Bredow, under the judgment of this court; and once to the creditors generally, under the order and direction of the Probate Court. The plaintiffs paid to Bredow and the defendant, to the general creditors. The plaintiffs thus far are the losing party, and seek to indemnify themselves by a recovering back from the defendant of the amount paid to him, and which he has already paid over to other parties under the orders of the Probate Court. Are they entitled to this...