Stockman v. Allen

• Decision Date: 09 January 1912
• Citation: 142 S.W. 744,160 Mo.App. 229
• Parties: FRANK D. STOCKMAN, Respondent, v. ETHEL V. ALLEN et al., Appellants
• Court: Kansas Court of Appeals

142 S.W. 744

160 Mo.App. 229

FRANK D. STOCKMAN, Respondent, v. ETHEL V. ALLEN et al., Appellants

Court of Appeals of Missouri, Kansas City

January 9, 1912

Appeal from Saline Circuit Court.--Hon. Samuel Davis, Judge.

AFFIRMED.

Judgment affirmed.

T. H Harvey and D. D. Duggins for appellants.

R. B Ruff, W. H. Meschede and A. F. Rector for respondent.

OPINION

ELLISON, J.

This is an action for money had and received, in which the plaintiff had judgment in the trial court.

The action grew out of certain facts connected with a contract for the lease of lands. On the 27th day of February, 1904 plaintiff rented of defendants for cultivation a tract of land in Saline county, which was liable to overflow, for a term of three years with the privilege of five, at an annual cash rent of $ 1200, payable in advance on the first of March of each year; but the payments were to be paid equally to defendants and two other parties, that is to say, $ 400 was to be paid to defendants and the same sum to each of two other parties. Payments were duly made, in advance, up to and including the last year. The contract contained the following provision: "In case of an overflow after corn is planted the said second party agrees to put all, or as much of said land back in corn as soon as practical and to pay to the said first named parties two-fifths of said crop, shucked and cribbed, and the said first-named parties agree to let the said $ 1200 paid in advance for that year, go for the next year's rent."

It so happened that in the spring or early summer of the last year a flood came and destroyed most of the corn planted and growing, as well as doing great injury to a field of winter wheat which had been sown the preceding fall. The ground was left in such condition that it was extremely difficult to cultivate what was left of the corn and the wheat was largely destroyed. However what there was left of the latter was harvested and two-fifths of one-third was stored for defendants and a like proportion of the corn when gathered later. Defendants refused to receive the rent in shares, thus set apart for them, and kept the cash rent which had been paid in advance.

Plaintiff, in reliance on the stipulation that if a flood came, his money payment in advance for that year should become the payment for the next year, concluded he had a right to the land for the sixth year, and refused to surrender the premises. These defendants thereupon brought an action of unlawful detainer and procured a judgment ousting plaintiff, and this was affirmed, on appeal, in this court (144 Mo.App. 85), where we held, in an opinion by the presiding judge, that the stipulation providing that in case of a year of overflow the advance payment should be applied on the next year's rent, did not apply to the last or fifth year of the lease, since to allow that would be extending a lease limited to five years to a lease for six years.

Plaintiff then found himself in this situation: He had paid $ 1200 cash in advance for a flood year, when the contract was he was to pay share rent. He thereupon brought this action, counting upon money had and received, as stated at the outset.

Defendants insist that an action for money had and received does not lie; and that on the case made by plaintiff, the action should have been based on the contract. We think the action properly brought. Money had and received is a form of action commended by the courts. The Supreme Court said that: "An action for money had and received will lie whenever one person has received money which, in justice and right, should be returned;" and that the action had "always been one favored under the law and the tendency is to widen its scope, it being a flexible form of action, levying tribute on equitable, as well as strictly legal doctrines; so that, it has become axiomatic that the action lies where 'the defendant has received or obtained possession of the money of the plaintiff which in equity and good conscience he ought to pay over to the plaintiff.'" [Clifford Banking Co. v. Commission Co., 195 Mo. 262. 288.]

The St Louis Court of Appeals, in ...