White v. McCoy Land Co.

• Decision Date: 25 May 1936
• Docket Number: No. 18376.,18376.
• Citation: 101 S.W.2d 763
• Parties: WHITE v. McCOY LAND CO. et al.
• Court: Missouri Court of Appeals

101 S.W.2d 763

WHITE v. McCOY LAND CO. et al.

No. 18376.

Kansas City Court of Appeals. Missouri.

May 25, 1936.

Rehearing Denied and Transferred to Supreme Court February 1, 1937.

Appeal from Circuit Court, Jackson County; Brown Harris, Judge.

Action by Grace B. White against the McCoy Land Company and another. From a judgment for plaintiff, defendants appeal.

Affirmed.

Scarritt, Jones & North, of Kansas City, for appellants.

Roy Rucker, of Kansas City, for respondent.

BLAND, Judge.

This case was tried jointly with the case of Grace B. White v. McCoy Land Company upon petitions alleging substantially the same facts. The trial resulted in a verdict and judgment against both defendants in a single sum of $2,688.87. Both defendants have appealed. In the appeal of the defendant, McCoy Land Company, the judgment against it was affirmed by this court. See White v. McCoy Land Co., 229 Mo.App. 1019, 87 S.W.(2d) 672.

The two cases were submitted to us upon the same abstract. The facts are fully set out in the opinion in the McCoy Land Company Case and it is unnecessary for us to again detail them. However, we deem it necessary to state some of the evidence that is applicable particularly to the case against the defendant in the present case. This evidence is as follows:

Said defendant, William C. Scarritt, is a member of the partnership of Scarritt, Jones & North, attorneys-at-law, in Kansas City. As such he is paid 30% of the money received by the firm in the practise of the law. This firm of attorneys was, at all times, the attorneys for the McCoy Land Company in the matter of instituting and prosecuting the taxpayers suit against Jackson County, referred to in the opinion in the McCoy Land Company Case. At the time of the employment of the firm by the McCoy Land Company the handling of the litigation was turned over by the firm to the defendant, William C. Scarritt.

Defendant testified that he was the "directing mind" in the legal work connected with the litigation; that in the dealings with Mr. Conrad, attorney for the property owners, he was the "chief spokesman"; that there were six or eight conferences between himself and Mr. Conrad; that other members of the firm were present when the conferences occurred between Mr. Conrad and the defendant, but the defendant was in charge of and took the leading part in reference to the matter. However, he consulted his associates relative to what action he took.

The evidence further shows that the defendant was a director and the president of the McCoy Land Company; that he owned 25% of the stock of the corporation and that he and his brother owned a little over 50% of the stock in the company; that after settlement was made with the property owners the McCoy Land Company called a directors meeting, the defendant acting as presiding officer; that the defendant retired from the room and the following took place, according to the minutes of the meeting: "A resolution was adopted referring to the fact that W. C. Scarritt had served as president of the company for many years without salary; that for more than six months last past he had devoted himself assiduously to the services of the company in investigation, from which the suit of the McCoy Land Company against Jackson County was developed, and on which it was founded, and thus had performed unusual services, and accordingly it was resolved that he be allowed and paid $2,500.00 as and for salary and as compensation for extraordinary and unusual services already performed and yet to be performed in closing up the settlement of said case and in connection with other matters, and said resolution was unanimously carried, said W. C. Scarritt, not being present". There is no question but that defendant received the $2,500.00 from the McCoy Land Company.

The evidence further shows that the firm of lawyers, of which defendant was a member, received from the McCoy Land Company, as its fee in the matter, the sum of $13,500.00.

Defendant insists that the court erred in overruling his instruction in the nature of a demurrer to the evidence and, in this connection, raises the same points that were urged by the McCoy Land Company in its appeal. This court in the appeal in that case went extensively into the points raised in connection with the claim that the demurrer to the evidence should have been sustained. We did this not only on the original submission of the case but on the original and also on the second motion for a rehearing. Two opinions were written, one on the original submission and the other on the first motion for rehearing. We feel that it would serve no useful purpose to again go into the points therein discussed and decided and will content ourselves by saying that we are satisfied with the conclusions reached in said opinions. Upon the authority of that case we will rule the points in this case, in reference to the demurrer to the evidence, against the present defendant.

However, in this connection there is one point that we wish to again mention. Defendant devotes a considerable portion of his brief in the case at bar to the point that the question of public policy was not pleaded and that no mention of it was made in the trial court. For these reasons, among others, it is insisted that it is improper for us to consider it as an element affecting the case, defendant taking us to task for having injected it into the case in the opinion in the appeal of the McCoy Land Company. It is only necessary to say that it is the duty of any court, where a question of public policy is suggested from the record, to pass upon the question, even though it is not raised by any of the parties (see 13 C.J. p. 507) and the appellate court may well raise the question for the first time. Crichfield v. Bermudez Asphalt Paving Co., 174 Ill. 466, 51 N.E. 552, 42 L.R.A. 347, 353; Gravier's Curator v. Carraby's Ex'r, 17 La. 132. We might say here that a good discussion of the term "public policy" is to be found in the opinion in the case of State ex rel. Smith v. Bowman, 184 Mo.App. 549, 170 S.W. 700.

It is necessary for us to take up in detail one point made by the present defendant which is not raised in the appeal in the other case. This point is as follows:

"A suit to recover back money paid, that is, a suit `for money had and received', cannot be maintained against a party to whom plaintiff did not pay the money; and it appears, indisputably, that plaintiff here did not pay to defendant Scarritt, the money in question, or any part of it, or any money."

There is no question but that the general rule is that in a suit for money had and received recovery cannot be had as against any one who received no part of the money sued for. 48 C.J. p. 770; 41 C. J. p. 62. In an action for money had and received plaintiff waives all torts, trespasses and damages. 41 C.J. pp. 28, 29. Where such an action is founded upon a tort committed by the defendant against the defendant, the plaintiff, in a proper case, may waive the tort and sue in assumpsit, that is, sue upon the contract, whether it be an express or implied one. 1 C.J. p. 1031.

We do not construe the petition in this case as an action for money had and received. It merely states the facts, without alleging that the wrong committed against plaintiff was waived. It alleges that, by reason of the duress practised upon the plaintiff by the defendant, she paid out the sum of $2,450.00. The prayer of the petition does not ask that this sum be recovered back but that she have judgment against the defendants in the sum of $2,450.00. It is sometimes difficult, in a proceeding of this kind, to ascertain the exact nature of the action but we are of the opinion that the cause of action stated by the plaintiff was one founded upon the wrong committed and not an action for money had and received, at least we may so treat it at this stage of the proceedings. 27 C.J. p. 28; 1 C.J. pp. 1019, 1020, 1021; Lambert v. Jones, 91 Mo.App. 288; Armelio v. Whitman, 127 Mo.App. 698, 106 S.W. 1113. It would appear that the case was tried on the theory that the suit was one for damages. The court instructed the jury that in case the verdict was for plaintiff it should be in the following form:

"We, the jury find the issues in favor of the plaintiff, and against both defendants, and assess the plaintiff's damages at the sum of _____ Dollars." (Italics ours.)

There is no point raised by the defendant that the giving of this instruction was improper. The jury, following the form of instruction, returned a verdict as follows:

"We, the undersigned jurors, find the issues in favor of the plaintiff, and against the defendants, and assess the damages at the sum of two thousand six hundred eighty-eight dollars and eighty-seven cents." (Italics ours.)

There is no question but that defendant is liable even though he may not have received, in a legal sense, any benefits from the duress practised upon the plaintiff. 26 C.J. p. 1180; 27 C.J. p. 13; Weber v. Weber, 47 Mich. 569, 11 N.W. 389. We held in the appeal in the McCoy Land Company Case that there was evidence from which the jury could find that the taxpayers suit was brought in bad faith and was for the purpose of compelling the payment of the money by the plaintiff to the McCoy Land Company. In other words, that the McCoy Land Company knew that it did not have a meritorious cause of action when the proceedings in that case were undertaken.

The defendant, in the case at bar, was not only the attorney, having charge of the prosecution of the taxpayers suit, but he was the president of the land company. In his latter capacity, according to the resolution of its Board of Directors, he played an important and affirmative part in the litigation and was paid the sum of $2,500.00 for his services connected therewith, though also for services connected with other matters of the company.

It is quite apparent that if the McCoy Land Company, which was merely an...