THOMAS, J.
The petition of plaintiff is as follows: "Plaintiff states that he is the surviving partner of the late firm of Guthrie & Norton, a private banking corporation, organized under the laws of the state of Missouri, composed of plaintiff and Addison T. Guthrie, and that said Guthrie departed this life about the 27th day of July, 1883. That plaintiff, at the August term, 1883, of the probate court of Platte county, state of Missouri, was regularly qualified as the administrator of the partnership estate under the laws of this state, and as such, and as surviving partner as aforesaid, has said partnership in charge. Plaintiff further states that on or about the 1st day of February, 1883, said Guthrie & Norton made a contract with the defendant, upon the terms and to the effect following, that is to say: To buy from defendant all the stock of the Platte County Bank, consisting of 200 shares, (defendant being then the owner of 150 of said shares, and undertaking to acquire the remaining 50 shares by purchase and assignment for the purpose of fulfilling his agreement with Guthrie & Norton;) that the consideration for said purchase was $10,250, (being the original amount invested in said bank one year previously, except $250, which it was mutually estimated would have to be paid to the other stockholders than defendant for interest, in order to acquire their stock pursuant to the agreement so made by defendant,) it being expressly agreed that no bonus was to be paid or received, and to buy furniture, fixtures, and stationery of the said bank, which had been acquired from the earnings of said bank, at a valuation mutually agreed upon of $1,500. It was also agreed by defendant to take up a certain note, and secure a certain overdraft. Plaintiff states that the contract, so made as aforesaid, was not formally reduced to writing, nor was it embodied in any complete or consummate memorandum; nor was any writing signed by either of the parties thereto, but the terms were indicated by figures set out in a blotter mutually used in the negotiations. That by mutual mistake, oversight, and inadvertence of all parties to said contract, or plaintiff alone, the separate value of the bank building then occupied by said Platte County Bank, and which had been paid
for out of the assets of said bank, and which represented the amount so paid for it instead of the money itself, in the purchase of said stock from defendant, was again, and for the second time, estimated as of the further or additional value of $2,000, so that, instead of the aggregate of said purchase being $11,750, to-wit, that of $10,250, and that of $1,500 for furniture and fixtures as aforesaid, intended by all parties, it was, by reason of the mistake, oversight, and inadvertence aforesaid, in estimating the value of the building the second time as aforesaid, treated as of the aggregate sum of $13,750; and so, in carrying out the transaction as aforesaid, on what was believed to be in accordance with the actual terms of the contract as aforesaid, but which was in fact in accordance with the terms as erroneously made, by reason of the mistake, oversight, and inadvertence aforesaid, which assumed a fact to be true which was false, and which could not have been intended by any of the parties thereto, inasmuch as it estimated the same item twice, the defendant was paid by Guthrie & Norton an amount exceeding, by the sum of $2,000, the amount actually agreed to be paid and mutually intended to be paid and received as aforesaid. By reason of all which defendant has had and received to the use of plaintiff, because of the mistake and oversight and inadvertence aforesaid, the sum of $2,000 more than that to which he was entitled, according to the terms of the contract actually made between defendant and the said Guthrie & Norton. Plaintiff further states that, at or about the date of the said contract and transaction aforesaid, and as soon as the mistake was discovered by Guthrie & Norton, they demanded from defendant that the said amount so overpaid, because of said mistake, should be repaid to them by defendant, but defendant refused, and still refuses. Wherefore plaintiff asks judgment for the said sum of $2,000, the amount so paid, as aforesaid, beyond the amount actually intended to be paid by said Guthrie & Norton, and received by defendant, together with interest at the rate of 6 per cent. per annum from the date of such overpayment." "Defendant, for answer to plaintiff's petition, denies each and every allegation therein contained, not hereinafter admitted or otherwise answered. Further answering, defendant admits that plaintiff is surviving partner of the firm of Guthrie & Norton, and that he is duly qualified and acting administrator of the partnership estate of said firm. Defendant admits that on or about the 1st day of February, 1883, he made a contract with said firm, but denies that then or at any other time he made with said firm any contract as set forth in plaintiff's petition; but defendant states, being the owner of 150 shares of the Platte County Bank, a banking institution organized under the laws of this state, with a capital stock of 2,000 shares, of $100 each, he did, on or about the 1st day of February, 1883, make and enter into a contract with said Guthrie & Norton, the terms and conditions of which were, at the time, reduced to writing, and was in words and figures as follows: `Contract between James M. Bohart, A. F. Guthrie, and Wm. F. Norton, in regard to the transfer of the Platte County Bank to Guthrie & Norton: (1) Guthrie & Norton are to pay J. M. Bohart capital stock and interest on same, $10,250. (2) J. M. Bohart is to obtain all the stock in said bank, and turn them over to Guthrie & Norton. (3) Guthrie & Norton are to take the business of the bank as it stands, the bank building, furniture and fixtures, stationery, etc., at $3,500. (4) Lathrop city scrip to be taken by J. M. Bohart. (5) J. M. Bohart is to square the cashier's account. (6) J. M. Bohart is to take up or satisfactorily secure the Fielding Burns and C. M. Johnson note, and to satisfactorily secure the Davis and Perry overdraft. (7) This contract is to take effect February 14, 1883.' Defendant states that he cannot file said contract with his answer, because the same is attached to the petition as a part thereof, in a certain suit of the plaintiff herein against this defendant, heretofore tried in the circuit court of Ray county, Mo., and there remains as a part of the record in said cause. Defendant states that he never at any time made any other contract with said Guthrie & Norton in relation to the sale or transfer to them of the Platte County Bank. That he has fully complied with all the terms and conditions of said contract on his part. That, in pursuance therewith, all the capital stock, the bank building, furniture, and all the assets of said bank, have been surrendered and delivered to said Guthrie & Norton, and the same was received and retained by them under said contract, and in satisfaction thereof, as their absolute property; they having paid defendant thereof the amount agreed upon in said contract, and no more." It will not be necessary to set out the evidence in detail. Suffice it to say there was evidence introduced by both parties tending to prove their respective theories of the case. The case was tried by the court without a jury, and judgment was rendered against defendant for the sum of $2,600, and he brings the case to this court by appeal.
1. There is some controversy between the parties as to whether this is a suit in equity or an action at law. We think it clearly an action at law for money had and received. 2 Chit. Cont. (11th Amer. Ed.) pp. 903, 928-932. The trial court so treated and tried it, and in this no error was committed.
2. On the main issue raised by the pleadings the court declared the law as follows: "If the court finds from the evidence that on or about the 1st day of February, A. D. 1883. Guthrie & Norton, of whom the plaintiff is the surviving partner, and duly-qualified administrator of the partnership estate, made a contract with defendant Bohart, to the effect following, to buy from defendant all the stock of the Platte County Bank, consisting of 200 shares, of $100 each, one-half of which was then paid up; and defendant, being then the holder and owner of 150 of said shares, and undertaking to acquire the remaining 50...
