Mut. Sav. Inst. v. Enslin

• Decision Date: 31 March 1866
• Citation: 37 Mo. 453
• Parties: MUTUAL SAVINGS INSTITUTION, Respondent, v. CHARLES ENSLIN, Appellant.
• Court: Missouri Supreme Court

37 Mo. 453

MUTUAL SAVINGS INSTITUTION, Respondent,

v.CHARLES ENSLIN, Appellant.

Supreme Court of Missouri.

March Term, 1866.

Appeal from St. Louis Court of Common Pleas.

Taussig, for appellant.

I. The defendant, as administrator of the estate of Henry Golberg, was entitled to the possession of the note, and had a right to apply its proceeds to the payment of the debts of the firm of Koehls & Golberg.

II. Admitting, for the sake of argument, that the defendant was not legally entitled to the possession of the note, and that it was delivered to him by mistake, it appears that plaintiff acted with full knowledge of all facts, and therefore is not entitled to relief from a mistake of law. (Chit. Cont. 490-1; 2 Greenl. Ev. § 123, n. 8; Tyler v. Smith, 18 B. Mon. 793; Marietta v. Slocumb, 6 Ohio, n. s., 471; Snelson v. State, 16 Ind. 29; Bond v. Coats, 16 Ind. 202; 5 Taunt. 143; 9 Cow. 674; Brumaghin v. Tillinghast, 18 Cal. 165; Garrison v. Tillinghast, 18 Cal. 404.)

III. The plaintiff obtained no title to the note by the assignment of Bredow, made on the 14th of January, 1860. The plaintiff finding it impossible to recover from the defendant money paid under a supposed mistake of law, undertakes to recover from the defendant as the assignee, under Bredow, of the note in question.

a. Nor would it help the plaintiff's case if it appeared from the evidence that he has a good cause of action, although different from the one set forth in his petition. (Link v. Vaughn, 17 Mo. 585; Butcher v. Death, 15 Mo. 271; Beck v. Ferrara, 19 Mo. 30; Payne v. Clark, 19 Mo. 152; Duncan v. Fisher, 18 Mo. 403; Perry v. Barrett, 18 Mo. 140.)

b. And the same rule applies, although the plaintiff and defendant agreed upon the facts in the case, the cause being submitted on the petition, answer and facts agreed upon. (Chouquette v. Barada, 23 Mo. 331.)

c. Bredow could not have sued the plaintiff for money had and received to his use because the plaintiff had refused to pay over to him. (Hall v. Marston, 17 Mass. 560-3.) He had to sue for a wrongful conversion. The plaintiff now claims as assignee of Bredow, and stands in his shoes; hence it can no more sue for money had and received than Bredow could.

Submitted for respondent on brief formerly filed by Judge Holmes.

I. On the facts stated in the agreed case, it simply amounts to this that defendant has collected the proceeds of a note, of which the plaintiff is the owner, and refuses, on demand made, to pay over the money. It is a clear case of money had and received to the plaintiff's use. (Chit. Contr. 606, & n. 1.) No express privity of contract is necessary between plaintiff and defendant, nor is it material that in fact the defendant, received the money with intent to appropriate it to his own purposes, supposing he had a right to do so; it is enough that he has another's money, which he has not a right conscientiously to retain. (Mason v. Waite, 17 Mass. 560-3; Hall v. Marston, 17 Mass. 575-9.) No privity necessary, and the action may be maintained though the note be given up under a mistake, or “an unfounded belief of payment.” Eagle Bk, v. Smith, 5 Conn. 71; Dickson v. Cunningham, Mar. & Yerg. 203-221; Ely v. Wolcott, 4 Allen, 506--though acknowledged in a bill of sale to have been received.

II. It was decided in Bredow v. Mut. Sav. Inst., 28 Mo. 181, that Enslin, adm'r of Golberg, had no title to the note, or the proceeds.

LOVELACE, Judge, delivered the opinion of the court.

Plaintiff brought her action, for money had and received by defendant to the use of plaintiff, in the Court of Common Pleas of St Louis county.

The evidence shows that one Heiderman executed his note to the firm of Keohls & Golberg, a mercantile firm in the city of St. Louis, for about the sum of four hundred and thirty dollars, due October 4, 1856; that for the purpose of securing a debt, which Keohls & Golberg owed to the Mutual Savings Institution, they deposited with the plaintiff this note, sometime in July or August, 1856; that on the 27th of August, 1856, the partnership of Keohls & Golberg was dissolved by mutual consent, and due notice given; that on the 7th day of September, and eleven days after the dissolution of the partnership, Golberg, one of the partners, died; that on the 1st of December, Keohls, acting as surviving partner, by agent, made an assignment of the note to Bredow & Shaffner, and on the 2d December, Bredow & Shaffner demanded the note of the Mutual Savings Institution, which refused to give it up, upon the ground that the debt, to secure which it was deposited, was not yet paid.

About the first of January, 1857, Enslin, the defendant, was appointed administrator of the estate of Golberg, deceased, and about the first of February demanded the note of the institution, the indebtedness of Koehls & Golberg having been paid off. Plaintiff at that time had sent the note to the Central Bank of Peoria, Ills., for collection, and therefore gave defendant Enslin an order on that bank for the note, or its proceeds in case it had been collected; and the defendant took the order, and collected the proceeds on the 11th July, 1857.

On the 15th January, 1857, Bredow & Shaffner assigned their interest in the note to...