Parks v. Fogleman
| Decision Date | 19 January 1906 |
| Docket Number | 14,563 - (39) |
| Citation | 105 N.W. 560,97 Minn. 157 |
| Parties | H. PARKS v. DAVID FOGLEMAN |
| Court | Minnesota Supreme Court |
Action in the district court for Stevens county to recover $100 for money had and received. The case was tried before Flaherty J., and a jury, which rendered a verdict in favor of plaintiff for the sum demanded. From an order granting a motion for a new trial, plaintiff appealed. Reversed and judgment ordered upon the verdict.
Action by Agent.
If an agent by mistake pays to a third party money in his possession belonging to his principal, he may maintain in his own name an action for money had and received to recover it back.
R. A Stone and C. B. Randall, for appellant.
Smith & Beise, for respondent.
Action to recover money paid to defendant for plaintiff's use. The complaint alleged that the plaintiff on July 14, 1904, paid to the defendant $100, to the use and account of plaintiff; that he duly demanded of the defendant its repayment, which was refused. The answer was a general denial. The evidence on the part of the plaintiff was sufficient to establish these facts: On July 14, 1904, the plaintiff was the agent of the Monarch Elevator Company in charge of their grain elevator at Cyrus, this state; that he had in his possession and control money belonging to the elevator company, and was authorized to purchase wheat and pay for it out of such money; that he purchased a quantity of wheat of the defendant, and by mistake overpaid him in the sum of $100; and, further, that on the same day he discovered the mistake and demanded for the defendant the return of the $100, which was refused. The evidence on the part of the defendant tended to show that he was not overpaid in any amount for his wheat. The jury returned a verdict for the plaintiff for the $100 and interest. Thereupon the defendant made a motion to set aside the verdict and for a new trial, which the court granted, and the plaintiff appealed from the order.
There is nothing in the record to indicate that the motion was granted upon the ground that the verdict was not justified by the evidence; hence it must be assumed that a new trial was granted on the ground of alleged errors of law occurring at the trial. The alleged errors relied upon by the defendant are to the effect that the trial court erred in denying his motion to dismiss the action, and, further, in not instructing the jury to return a verdict for the defendant for the reason that the evidence on the part of the plaintiff did not tend to prove the cause of action alleged in the complaint, but, on the contrary, the evidence proved a cause of action in favor of a third party, the elevator company; or, in other words, that there was a fatal variance between the allegations of the complaint and the proof.
The case of Dennis v. Spencer, 45 Minn. 250, 47 N.W 795, is cited in support of this contention. In that case the complaint alleged as the subject-matter of the action a contract made between plaintiff and defendant. There was no evidence to prove such contract, but the evidence did tend to prove a contract between the defendant and a third party which had been assigned to the plaintiff. It was held that this was not a variance, but a failure of proof. The case, then, is not here in point, if the evidence in this case tended to prove the alleged cause of action in favor of the plaintiff. The question here to be decided is whether an agent, having in his possession and control the money of his principal, may maintain an action in his own name to recover it, if a stranger, having no interest therein, obtains it from the agent by mistake or fraud or trespass. It is clear that, if the defendant in this case had taken the money from the possession of plaintiff under circumstances constituting an actual conversion, the plaintiff could have recovered in his own right and name from the defendant the...
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