Stewart v. Phy
| Decision Date | 14 February 1884 |
| Citation | 3 P. 443,11 Or. 335 |
| Parties | STEWART v. PHY. |
| Court | Oregon Supreme Court |
Appeal from Union county.
J.A Stratton, for appellant.
Bonham & Ramsey, for respondent.
The judgment appealed from is, in effect, that the complaint states no cause of action. The action was brought in the justice's court, and taken from thence to the circuit court by appeal. From the judgment of the latter court the present appeal was taken.
The complaint states, in substance, that appellant, on September 21, 1881, gave respondent an order for $600, on Bamberger & Frank, of Baker City, as an advance, and to be applied and credited upon a contract then existing between them for the purchase of calves; that respondent obtained the money on said order, but failed, neglected, and refused to credit the same, or any part thereof, except the sum of $400; that said contract was therefore fully paid and satisfied by the appellant without any credit being given by the respondent for any portion of the $600 received from Bamberger & Frank on appellant's order, except the sum of $400. The prayer is for judgment for $200, with legal interest from September 21, 1882, and costs. It appears from these allegations that the respondent has money belonging to the appellant, to the amount for which judgment is demanded, in his hands, which he clearly has no right to retain from the appellant; and we think the action lies.
The respondent received the money for a particular purpose, which was otherwise satisfied by the appellant, and it is his duty to repay it. It is no objection to a recovery in this action that appellant might have insisted on being credited with the whole amount received upon his order in the settlement of the amount due on the contract for the purchase of calves. The complaint shows it was not so credited; and it was as competent for the parties to waive the credit at the time of the settlement as it was for them to agree to the application of the amount received on the order in the first place. It was not necessary to allege a promise to repay. The respondent's legal obligation to do so arises from the facts alleged. Glenny v. Hutchens, 4 How.Pr. 98. Now, is there any ground for the objection that the sum for which judgment is asked appears from the allegation in the complaint to have been a voluntary payment. It is shown by those allegations to have been no payment at all. It was intended to be, but...
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Snow v. Tompkins
...equitably belonged to the plaintiff.' In Waite v. Willis, 42 Or. 288, 70 P. 1034, it was held, following the rule announced in Stewart v. Phy, 11 Or. 335, 3 P. 443, that a complaint alleging that the defendant received a certain sum of money for plaintiff's use and benefit was sufficient, t......
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Keene v. Eldriedge
...equitably belonged to the plaintiff." In Waite v. Willis, 42 Or. 288, 70 P. 1034, it was held, following the rule announced in Stewart v. Phy, 11 Or. 335, 3 P. 443, that complaint alleging that the defendant received a certain sum of money for plaintiff's use and benefit was sufficient, thu......
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Williamson v. Johnson
... ... It was held that to entitle the donee to claim that the gift was irrevocable and invested him with a right to the property it must be shown that he had complied with the conditions on which the gift was made. And in Stewart v. Phy, 11 Or. 335, 3 Pac ... Rep. 443, it was held that assumpsit for money had and received would lie to recover money paid by a debtor to his creditor to be applied in satisfaction of a particular obligation, when it was not so applied, and the obligation was otherwise discharged ... ...
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Waite v. Willis
...implies the requisite promise on the part of the defendant to render him liable to a money judgment. 14 Enc.Pl. & Prac. 53; Stewart v. Phy, 11 Or. 335, 3 P. 443; Betts Bache, 14 Abb.Prac. 279. The complaint is therefore sufficient. The answer we deem defective in statement, but, waiving tha......