Pascagoula Hardwood Co. v. Chisholm

• Decision Date: 05 December 1932
• Docket Number: 30287
• Citation: 164 Miss. 242,144 So. 710
• Court: Mississippi Supreme Court
• Parties: PASCAGOULA HARDWOOD CO. v. CHISHOLM

144 So. 710

164 Miss. 242

PASCAGOULA HARDWOOD CO. v. CHISHOLM

No. 30287

Supreme Court of Mississippi

December 5, 1932

Division B

1. MONEY RECEIVED.

Plaintiff in action for money had and received, need only show that defendant holds money which in equity and good conscience belongs to him.

2. SALES. In buyer's action to recover payments on oxen declaration held to state cause of action for money had and received.

Declaration alleged in substance that the defendant entered into a contract with plaintiff whereby it sold to the plaintiff certain oxen, for which the plaintiff was to make weekly payments; that plaintiff had paid the sum of two hundred three dollars when the defendant came and took the oxen away without any process of law and sold them; and that therefore the defendant breached its contract with plaintiff, and owes plaintiff two hundred three dollars, with interest and costs for money had and received.

3. SALES. In buyer's action to recover payments on oxen, instruction on buyer's right to recover without deduction for rent held not erroneous.

Instruction complained of authorized jury to find for the plaintiff, if they believed that defendant sold plaintiff the oxen in question and plaintiff had paid two hundred three dollars on the purchase price, and defendant afterwards took the oxen without the plaintiff's consent and under no process of law, although it had deed of trust on them, and that if the jury found for the plaintiff they should not make any deduction for rent.

HON. W. J. PACK, Judge.

APPEAL from circuit court of Jones county, HON. W. J. PACK, Judge.

Action by Essex Chisholm against the Pascagoula Hardwood Company. Judgment for the plaintiff, and the defendant appeals. Affirmed.

Affirmed.

O. F. Moss, of Lucedale, for appellant.

An action for money had and received, although an action at law, is governed by equitable principles, and in it plaintiff waives all torts, trespasses, and damage. It may, in general, be maintained whenever one has money in his hands belonging to another, which, in equity and good conscience, he ought to pay over to that other. But where money is paid to a person who receives it with a good conscience, and uses no deceit or unfairness in obtaining it, money had and received will not lie to recover it, even though it was paid by mistake; nor will the action lie where plaintiff, upon the same transaction, would be liable to a cross action to recover damages to an equal amount.

41 C. J. 28.

The question, in an action for money had and received, is to which party does the money, in equity, justice and law belong. All plaintiff needs show is that defendant holds money which, in equity and good conscience, belongs to him, but if he fails to show such superior right, that is, that defendant does hold money which so belongs to plaintiff, he cannot recover.

41 C. J. 33; 65 Miss. 387, 4 So. 93.

To maintain an action for money had and received, it must appear that the money in question belonged to plaintiff, that it was secured by defendant without plaintiff's consent, and without giving any valid consideration.

41 C. J. 42; 95 Miss. 429, 48 So. 1019.

Plaintiff can recover only such sum as in equity belongs to him, and he cannot in any event, aside from interest, recover more than the sum actually received for his use by defendant.

41 C. J. 71.

Where one sells the property of another and receives the price in money or its equivalent, the owner may waive the tort, and maintain an action for money had and received to recover it.

41 C. J. 44.

Plaintiff's recovery is limited to the proceeds, of property sold, received by the defendant, and a judgment cannot be supported on findings which did not show that any specific sum was so received.

41 C. J. 74.

The actual loss or injury suffered by plaintiff is in general the measure of damages in an action for a conversion.

38 Cyc. 2088.

In the case of the conversion of property which has been reduced to money by the defendant the measure of damages is the amount received with interest.

38 Cyc. 2089.

The measure of damages for the conversion of property is the value of the property at the time of its conversion, with interest thereon to the time of the trial.

Ingram Day Lumber Company v. Robertson, 129 Miss. 365, 92 So. 289.

The action for money had and received is subject to equitable defenses, and defendant may show that be is in equity and good conscience entitled to retain the money.

Railroad Company v. Camody, 17 Ala. 158, 82 So. 648, 203 Ala. 522, 84 So. 824, 17 Ala. 370, 85 So. 846.

Personal property may be sold, with verbal retention of title, and the claim of the seller to the price will prevail over the claims of the buyer's subsequent grantees.

Parker v. Payne, 95 Miss. 375, 48 So. 835; Adams v. Askins, 215 Ala. 632, 112 So. 199.

Appellee admits that he made the several payments on this team voluntarily with full knowledge of the facts, and for that reason the money paid cannot be recovered back.

Town of Wesson v. Collins, 72 Miss. 844, 18 So. 360.

The taking of security on the thing sold does not affect in any way the conditions of the sale.

Greenwall & Champenois v. Tinsley, 90 Miss. 38, 42 So. 89; U. S. Fidelity & Guaranty Company v. Northwest Engineering Co., 146 Miss. 476, 112 So. 580.

The first instruction is erroneous because it in effect tells the jury that, if they find for appellee, the verdict should be for two hundred and three dollars, the amount paid by appellee on the team. This instruction also stresses the fact that appellant took a deed of trust on the team to secure the purchase price.

The instruction which tells the jury that if they should find for plaintiff they could not make any deductions for rent is erroneous.

The parties could under the law make a conditional sales contract and agree that all payments might be retained by appellant as rent until the team was fully paid for.

Collins & Collins, of Laurel, for appellees.

To maintain all action for money had and received, it must appear that the money in question belonged to plaintiff, that it was secured by defendant without plaintiff's consent, and without giving any valid consideration. Or if with plaintiff's consent, upon a consideration which has failed.

41 C. J. 42; 95 Miss. 429, 48 So. 1019.

An action for money had and received will lie where one has obtained money from another by oppression, imposition, extortion, or deceit; and the law implies a promise from such person to return it to the lawful owner, whose title to it cannot be annulled by fraudulent or unjust dispossession.

27 Cyc. 863, section J.

And where a contract under which one has paid money has been rescinded under circumstances which entitle him to a return of the money or a part thereof, he may recover the same in an action for money had and received.

27 Cyc. 867; Pevey v. Jones, 16 So. 252.

The instruction is correct which says "If you find for the plaintiff, you cannot make any deductions for rent. Plaintiff said there was no agreement to pay rent, defendant said there was. The jury said there was not. Therefore no rent could be deducted.

OPINION

Anderson, J.

Appellee brought this action against appellant in the circuit court of Jones county to recover the sum of two hundred mid three dollars paid by appellee to appellant as part of the purchase price of a team of oxen and log wagon, which team and wagon appellee alleged in his declaration that appellant forcibly and unlawfully took from his possession and converted to its own use, by reason whereof he was entitled to recover from appellant the purchase money so paid. The trial resulted in a verdict and judgment for appellee for the amount sued for, from which judgment appellant prosecutes this appeal.

Since one of the question involved is whether or not the declaration stated a cause of action, we set it out in full:

"Now comes Essex Chisholm, a resident citizen of Jones County Mississippi, and files this his suit against the Pascagoula Hardwood Company, a corporation organized under the laws of the State of Delaware and having its home office at Wilmington in said state and for his cause of action against said defendant shows the Court the following facts, to-wit:

"That the defendant Pascagoula Hardwood Company entered into a contract with plaintiff whereby it sold to plaintiff a certain team of oxen and agreed that plaintiff should pay so much per week upon said oxen and the plaintiff had paid upon...