Schaper v. Smith

• Decision Date: 07 February 1933
• Docket Number: No. 22329.,22329.
• Parties: SCHAPER v. SMITH et al.
• Court: Missouri Court of Appeals

56 S.W.2d 820

SCHAPER v. SMITH et al.

No. 22329.

St. Louis Court of Appeals. Missouri.

February 7, 1933.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be published in State Reports."

Action by Randolph H. Schaper, administrator with the will annexed of the estate of John Daniel Roehrig, deceased, against P. A. Smith and another. Judgment for defendants, and plaintiff appeals.

Affirmed.

Jesse H. Schaper, of Washington, Mo., for appellant.

W. L. Cole and T. P. Hukriede, both of Union, for respondents.

BECKER, P. J.

This is an action by plaintiff as administrator c. t. a., of the estate of John Daniel Roehrig, deceased, for money had and received.

The trial court sustained defendant's instruction in the nature of a demurrer at the close of plaintiff's case. From the resulting judgment the plaintiff in due course appeals.

Plaintiff, in his petition, alleges that his decedent testator, Roehrig, was a man about 50 years of age, single and unmarried, and was residing in Washington, Franklin county, Mo.; that he made his home with two sisters and a brother. In the early part of 1929 the family residence, which had been occupied by them, had been sold under a deed of trust, and out of the proceeds of the sale the decedent had received $1,200 in cash. The petition alleges further that for several years prior to March 12, 1930, Roehrig had been physicially and mentally infirm and subnormal and unable to attend to his personal business without advice and counsel; that he had practically no experience in the purchase or sale of real estate or in attending to money matters; that he had a trustful and confiding disposition; that he talked very slowly and was not able to carry on an intelligent conversation; that all of these things were known to the defendant; that the defendant fraudulently devised a scheme to obtain the money which Roehrig had received out of the sale of the family homestead, and did in fact, by fraud and undue influence, persuade and induce Roehrig to buy from him certain property of the actual value of but $600 for the sum of $1,800, Roehrig paying him $1,200 in cash and giving defendant a promissory note for the balance, secured by deed of trust on the property purchased. The petition further alleges that the defendant falsely represented that the real estate was a fine and desirable residence, most suitable for Roehrig and his two sisters and brother for a home; and further fraudulently represented that lands in and thereabout, of like character and condition, were being bought at a higher price; that these various representations were relied upon by Roehrig and were the inducing cause of his purchasing the property, which had no greater value than $600, and prayed judgment for $1,200.

The answer admits the sale of the land described in plaintiff's petition for the sum of $1,800, and denies each and every other allegation in plaintiff's petition.

An action for money had and received is very similar to a bill in equity and is governed by equity principles. "Though an action at law, it is so favored by courts and is so flexible in form and relief that it levies tribute indifferently on equitable as well as strictly legal principles. * * * The accepted rule is that `the action lies where defendant has received or obtained the money of plaintiff, which, in equity and good conscience, he ought to pay over to the plaintiff.'" Third Nat. Bank of St. Louis v. St. Charles Sav. Bank, 244 Mo. 554, 149 S. W. 495, 502.

This general doctrine has frequently been applied where money has been paid another or with reference to some contract induced by fraud or deceit by persons receiving the money, and it may be recovered in an action for money had and received against the party receiving it. Fisher v. During, 53 Mo. App. 549; Magoffin v. Muldrow, 12 Mo. 512; Steele v. Brazier, 139 Mo. App. 319, 123 S. W. 477; Stout v. Hdwe. Co., 131 Mo. App. 520, 110 S. W. 619.

Though, in testing the correctness of the ruling upon the instruction in the nature of a demurrer given at the close of plaintiff's case, we have taken as true all of the testimony adduced on behalf of plaintiff and allowed him all reasonable inferences to be drawn therefrom, we are still constrained to the view that the demurrer was well ruled.

The deceased, at the time he purchased the property in question from the defendant, was a man about 50 years of age, in bad health, and below the average in mentality. It appears that he had worked in a pipe factory for a time; thereafter had been helper at a railroad station, where he did sweeping and attended to the fires. More recently he had worked on a government boat. For a year or two prior to his demise he had been in ill...