Ray Lambert v. W. E. Morton, (No. C. C. 447)
| Decision Date | 08 September 1931 |
| Docket Number | (No. C. C. 447) |
| Citation | 111 W.Va. 25 |
| Court | West Virginia Supreme Court |
| Parties | Ray Lambert v. W. E. Morton |
1. Judgement
Under Code 1923, ch. 121, sec. 6, one may proceed by motion for judgment upon a contract implied in law.
2. Estoppel
One will not be permitted, ordinarily, to profit through his own mistake at the expense of another who has proceeded lawfully and in good faith.
Case certified from Circuit Court, Kanawha County.
Action by Ray Lambert against W. E. Morton. The circuit court overruled a demurrer to notice of motion for judgment and sustained a demurrer to a special plea offered in reply and certified the case.
Affirmed in part; reversed in part.
Emmett bor an, for plaintiff.
A. N. Breckenridge, for defendant.
This is a certified ease, presenting the sufficiency (1) of a notice of motion for judgment, and (2) of a special plea offered in reply. The circuit court overruled a demurrer to the notice and sustained a demurrer to the plea.
1. The notice states that the plaintiff, Lambert, was the legal sheriff of Nicholas county from January 1, 1929, to March 18, 1929, inclusive, and was entitled to receive the salary of that office; but that during this period the defendant, Morton, illegally claimed to be the sheriff, and was unlawfully paid the salary of the office, amounting to $537.67; that such payment was for the use and benefit of the plaintiff; and that motion would be made for a judgment therefor.
Code 1923, ch. 121, sec. 6, provides that judgment may be recovered on motion for money due "on any contract." This broad language embraces implied, as well as express, contracts. "For the purpose of the remedy" the law implies a promise by the holder to pay over money which he has received for another. This implication is well explained in 13 C. J., subject, Contracts, sec. 10, as follows:
'' Contracts implied in law, or more properly quasi or constructive contracts, are a class of obligations which are imposed or created by law without regard to the assent of the party bound, on the ground that they are dictated by reason and justice, and which are allowed to be enforced by an action ex contractu. They rest solely on a legal fiction, and are not contract obligations at all in the true sense, for there is no agreement; but they are clothed with the semblance of contract for the purpose of the remedy, and the obligation arises not from consent, as in the case of true contracts, but from the law or natural equity. So, when the party to be bound is under a legal obligation to perform the duty from which his promise is inferred, the law may infer a promise even as against his intention. Among the instances of quasi or constructive contracts may be mentioned cases in which one person has received money which another person ought to have received, and which the latter is allowed to recover from the former in an action of assumpsit for money had and received, or money received to the use of plaintiff.''
The notice is therefore sufficient at law, and the ruling of the circuit court thereon is affirmed.
2. The plea sets up (in part) the following facts: That Lambert and Morton were rival candidates for the office of sheriff at the general election in 1928; that upon the official canvass of the election returns, Morton had a majority of 19 votes; that upon a recount by the board of canvassers, Morton had a majority of 10 votes; that upon proceedings in this Court, it was determined on December 12, 1928, that each candidate had received 3, 795 votes (see Lambert v. Board of Canvassers, 106 W. Va. 544); that on December 20, 1928, the county court of Nicholas county decided the tie...
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