Richardson v. Moffitt-West Drug Company
| Decision Date | 25 February 1902 |
| Citation | 69 S.W. 398,92 Mo.App. 515 |
| Parties | WM. C. RICHARDSON, Public Administrator of GEO. W. POLSTON, Deceased, Appellant, v. MOFFITT-WEST DRUG COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Warwick Hough Judge.
REVERSED AND REMANDED (with directions).
Carl Otto and R. P. & C. B. Williams for appellant.
(1) 4 Wait's Action and Defense, 471, and authorities cited. "Where the defendant, not having title to property, sells it and receives money therefor, the true owner may recover the amount received by him, in an action for money had and received." Tamm v Kellogg, 49 Mo. 118. (2) And so, in order to sustain an action for money had and received, privity of contract is not required. Citing Johnson v. Bank, 116 Mo. 568. (3) And again in the case of Pipkin v. Loan Co., 80 Mo.App. 6 this court says:
S. T. G. Smith and Thos. S. Meng for respondent.
(1) Proof of the issuance of the policy was not, as against defendant, proof that Polston's administrator was entitled to its proceeds. By the effect of the presumptions that business is transacted in the ordinary course, and that every one is presumed to discharge his obligations and perform his duties, the proceeds of the policy having been paid to defendant, it must be presumed that defendant was the assignee thereof. Williams v. Mitchell, 112 Mo. 300; White v. Ingram, 110 Mo. 474; Ivy v. Yancey, 129 Mo. 501; Allen v. Logan, 96 Mo. 591; Wendover v. Baker, 121 Mo. 273. (2) And in such case the burden of proof is upon plaintiff to show defendant's lack of interest. Lenig v. Eisenhart, 127 Pa. St. 59; Home Life Assn. v. Seager, 128 Pa. St. 533. (3) An insurance policy may be assigned by parol and delivery. In re Babcock, 12 N.Y. 841. If defendant has any peculiar knowledge of the transaction, it is only by reason of Polston's death; and in such case the statute bars its testimony as to matters peculiarly within its knowledge, but there is no rule of law which would subject it to the additional hardship of assuming the burden of proof. R. S. 1899, sec. 4652; State ex rel. v. Thompson, 81 Mo.App. 549. (4) While it is not necessary to show privity of contract in order to maintain an action for money had and received, the mere fact that there is no privity should not be considered sufficient to support a recovery. Plaintiff's right was a chose in action against the insurance company, and unless there is a showing that such right has been destroyed or impaired, or is for some reason ineffectual, he can not proceed against defendant. Funkhouser v. How, 17 Mo. 225; Funkhouser v. How, 24 Mo. 44; Dickey v. Fox, 24 Mo. 217; Green v. Timmons, 28 Mo.App. 459; Corey v. Webber, 96 Mich. 357 Hathaway v Town of Cincinnatus, 62 N.Y. 434.
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 five thousand dollars, payable to his executors or administrators, on satisfactory proof of his death; and it was also shown that on the thirtieth day of April, 1900, said insurance company paid on account of said policy forty-two hundred and eighty-nine dollars 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 eleventh 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 forty-four hundred and six dollars and ninety-two cents, 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 the 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 cause 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 plaintiff. That form of assumpsit lies, as has been said, 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 criticized as incompatible with the code requirement of "a plain and concise statement of the facts constituting the cause of action." Fox v. Pullman 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 aequo et bono is not entitled to the whole of his demand." Moses v. Macferlan, 2 Burr 1005. Such was the...
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