Richardson v. Moffit-West Drug Co.

• Decision Date: 25 February 1902
• Citation: 92 Mo. App. 515,69 S.W. 398
• Parties: RICHARDSON v. MOFFIT-WEST DRUG CO.
• Court: Missouri Court of Appeals

69 S.W. 398

92 Mo. A. 515

RICHARDSON v. MOFFIT-WEST DRUG CO.

Court of Appeals at St. Louis, Missouri.

February 25, 1902.

MONEY HAD AND RECEIVED — PLEADING — EVIDENCE — PRIMA FACIE CASE — PRESUMPTIONS — PRIVITY OF CONTRACT — NEW TRIAL — APPEAL.

1. A petition alleging that defendant is indebted to plaintiff in a certain sum for money duly paid defendant, and unlawfully withheld from plaintiff after demand, states a cause of action for money had and received.

2. The mere fact that a life policy of plaintiff's intestate, payable to his administrator, was in the possession of and paid to defendant, did not raise a presumption that it had been assigned to defendant.

3. An allegation, in a complaint by plaintiff to recover the proceeds of a life policy payable to his intestate's representatives, and which had been paid to defendant, that the policy had been "duly paid," did not raise a presumption that defendant was entitled to keep the proceeds, especially where followed by an averment that the money was "wrongfully withheld."

4. An allegation that defendant owed decedent's estate "over and above any indebtedness on the part of decedent to defendant," even if construed as an admission that decedent was indebted to defendant, did not show any lien or right of possession in defendant which plaintiff was bound to prove had been satisfied.

5. An action for money had and received may be maintained where defendant has received money to which plaintiff is entitled, though there be no privity of contract between the parties.

6. Where, on appeal from an order granting a new trial for insufficiency of plaintiff's evidence to make a prima facie case and support a judgment for plaintiff in the absence of any evidence for defendant, the court holds that plaintiff made a prima facie case, the cause cannot be remanded to allow defendant to introduce evidence.

Appeal from St. Louis circuit court; Warwick Hough, Judge.

Action by William C. Richardson, public administrator of George W. Polston, deceased, against the Moffit-West Drug Company. From an order granting defendant's motion for a new trial after verdict for plaintiff, the latter appeals. Reversed.

R. P. Williams and Carl Otto, for appellant. Thos. J. Meng and S. T. G. Smith, for respondent.

GOODE, J.

After formal averments of the death of his intestate and his taking charge of the estate, plaintiff states in his petition: "The defendant, a corporation at all times herein named, is indebted to the estate of George W. Polston, deceased, in and to the sum of forty-five hundred dollars for money had and received for the use of said estate, over and above any and all indebtedness on the part of said Polston to defendant, which said money defendant obtained upon and from a certain policy of insurance payable to him, said George W. Polston, and duly issued to said Polston by the John Hancock Mutual Life Insurance Company; that the same was duly paid to said defendant on or about May 1, 1900, and has been wrongfully held by it ever since, although the same was duly demanded prior to the institution of this suit, but defendant refused, and still refuses, to pay the same, to the damage of plaintiff in and for the sum of forty-five hundred dollars." The petition concludes with a prayer for judgment for that sum, with interest from the date when the proceeds of the policy were collected by the defendant. Defendant's answer was a general denial. Plaintiff's official character and his charge of Polston's estate were admitted. Proof was made of the death of Polston. The insurance policy was introduced, and showed that it was issued by said insurance company on Polston's life for $5,000, payable to his executors or administrators, on satisfactory proof of his death; and it was also shown that on the 30th day of April, 1900, said insurance company paid on account of said policy $4,289 to the defendant. A demand by the plaintiff of the defendant for the money collected on the policy was proven to have been made on the 11th day of September. No evidence was offered tending to show the policy had been assigned to the defendant, or the nature of defendant's claim to it or its proceeds. This was all the evidence introduced by plaintiff, and at its close the defendant requested an instruction in the nature of a demurrer to said evidence, which the court refused to give. Thereupon counsel for defendant declined to offer any testimony in the case, and judgment was entered for plaintiff against defendant in the sum of $4,406.92, being the amount paid to the defendant on the policy, with interest to the date of the judgment. A motion for a new trial on various grounds was filed, and sustained on the ground that the evidence introduced was insufficient to support the finding and judgment. Plaintiff appealed from an order sustaining it.

Instead of having the facts before us by which this cause could be disposed of according to its merits, the disagreeable duty is imposed on us of deciding it on a naked question of procedure, though there is nothing to suggest that it would have been difficult to adduce the facts. The record leaves us entirely in the dark as to how the defendant got the insurance policy which was issued to Polston, or why the proceeds thereof were paid to it. To conclude the rights of litigants on so barren a showing of what their rights are is eminently unsatisfactory to a court, and there can rarely be a good reason for compelling it to do so. But when a case is rested on a technicality, instead of its merits, there is no other course open to a tribunal charged with the decision of it. If parties choose to risk their rights and interests on some refinement of practice or procedure, they must abide a technical judgment, whatever the hardship it may entail. This action is one on the common count for money had and received by the defendant to the use of the plaintiff. That form of assumpsit lies whenever one person has received money belonging to another which in equity and good conscience he ought to pay to the owner; and has been carried into the practice under the Code, though it is sometimes criticised as incompatible with the Code requirement of "a plain and concise statement of the facts constituting the cause of action." Fox v. Car Co., 16 Mo. App. 122; Mansur v. Botts, 80 Mo. 651. The declaration at common law is very simple, — merely a statement that the defendant owes or is indebted to the plaintiff in a certain sum of money received by the defendant for the use of plaintiff, a promise of payment by the defendant, and a prayer for judgment. The allegation of a promise to pay is unnecessary under the Code. Tamm v. Kellogg, 49 Mo. 118. The simplicity of the action is, indeed, what commends it to the favor of the courts. A plaintiff is exonerated from the necessity of stating the special circumstances of his case, and, therefore, from the danger of a nonsuit by a variance between his allegations and the proof; while as to the defendant "it is the most favorable way in which he can be sued. He can be liable no further than the money he has received, and against that may go into every equitable defense upon the general issue. He may claim every equitable allowance. He may prove a release without pleading it. In short, he may defend himself by everything which shows that the plaintiff ex æquo et bono is not entitled to the whole of his demand." Moses v. Macferlan, 2 Burrows, 1005. Such was the encomium pronounced by Lord Mansfield more than a century ago. While the petition in the case at bar states matters unnecessary to constitute a cause of action, it likewise states all that are necessary. It alleges the defendant was indebted to the estate of George W. Polston, deceased, in the sum of $4,500 for money had and received for the use of said estate; that the same was duly paid to defendant, and was unlawfully withheld after a demand made by plaintiff. Those allegations state a case of indebitatus assumpsit, — the common count for money had and received.

Was it proven prima facie? That is a question which we have found no exactly apposite precedent to aid us in answering; that is, none which, instead of resembling this case, is absolutely identical with it, for in every opinion we have read the facts of the controversy were before the court, and the special contract between the parties to the litigation, if there was one, always determines their rights when it is disclosed. Stout v. Tribune Co., 52 Mo. 342; Fox v. Car Co., supra. Here no contract or privity of any kind between plaintiff's intestate and the defendant by which the latter got the fund or the plaintiff was entitled to it is alluded to in the pleadings or proof; so we are not apprised that there was one save by the suggestion of respondent's counsel. But as to the proof, plaintiff's representative capacity was admitted. He proved the death of Polston. The apparently unassigned policy showed prima facie that plaintiff was entitled to its proceeds, and the undisputed testimony showed defendant had received them. It is on the point of the insufficiency of this proof that plaintiff's right to the judgment which the circuit court set aside is assailed, it being earnestly insisted that the evidence fell short of establishing a prima facie case in his favor. The learned and able discussion of the law by respondent's counsel in support of this position treats it from several points of view with persuasive force; but, inasmuch as we have been reluctantly compelled, after the most serious and attentive reflection, aided by two presentations of the case, to hold that the theory advanced by them is untenable, we will submit the reasons that have led us to that conclusion, and answer, as well as we can, the arguments which are urged in opposition to it. The salient fact in the case is that the policy of insurance bears no assignment on it in writing to the defendant, and no assignment or pledge, either verbal or...