Thresher v. Stonington Savings Bank , 68 Conn. 201 ( 1896 )

Hamersley, J.

If one receives money of another for an express purpose, and fails to apply it, the amount so received with interest can be recovered. Wales v. Wetmore, 3 Day, 252. And it is a general rule that if any one having received the money of another, retains it without any right conscientiously to do so, such retention is a violation of his duty towards the owner, who may at any time after such breach of duty recover the sum retained with interest; Selleck v. French, 1 Conn. 32; Mason v. Waite, 17 Mass. 558, 562; and in such case where there is either a precedent debt or duty, a special demand is not necessary. Lyon v. Annable, 4 Conn. 350, 355. The right to recover springs from a principle peculiar rather to equity than to law; Northrop v. Graves, 19 Conn. 548, 555; Goddard v. Town of Seymour, 30 id. 394, 401; and the Practice Act, in abolishing the fiction which supported the usual action at law for its enforcement, and providing in all civil actions one form for the statement of facts necessary to support a plaintiff’s claims, legal or equitable, certainly emphasizes the equitable character of the right. But though enforceable by remedy at law, the right may also be enforced in equity in a case where equity has rightfully assumed jurisdiction. Downes v. Bristol, 41 Conn. 274. And under the new procedure, facts from which both legal and equitable relief is sought may be presented in one complaint, and in a proper case by a single count. Trowbridge v. True, 52 Conn. 190, 197; Butler v. Barnes, 60 id. 170, 190.

Applying these principles to the case in hand, the reasons of appeal assign no error sufficient to set aside the judgment. The complaint alleges a single transaction in which the plaintiff’s money, paid for the specific purpose of being applied to the purchase of the defendant’s interest in land, was received by the defendant charged with this trust, and upon demand for a conveyance of that interest the defendant refused to convey, and retained the money. Each material fact alleged by the plaintiff was put in issue by the general denial, and the claims for relief covered each remedy to which the proof might entitle the plaintiff. No objection appears to have been .taken by demurrer, or otherwise, to the form of stating the transaction, or the prayer for relief, and no question of this kind, or whether a money judgment would be by way of legal or equitable relief, was raised. The trial court has found the facts alleged to be true. If the court erred in holding that the defendant was estopped from denying a valid agreement on its part to convey, it fairly appears from the finding that the court was satisfied by the evidence, independently of the agent’s authority in respect to the sale of land, that the defendant in fact received the plaintiff’s money, charged with the trust stated, and retained it after its refusal to apply it to the purpose for which it was-paid; these facts being found, the judgment for the’ amount so detained with interest, is valid.

The defendant suggested in argument that in the finding the court gave a wrong reason for its judgment; it may be doubtful whether the finding can be so construed, but a judgment responding to the issues joined and supported by the facts proved should stand, although the manner of reaching the right result might be questioned. Supples v. Cannon, 44 Conn. 424, 431. Very possibly some doubtful questions might have been raised in the court below in respect to the form of the pleadings and trial of the issues; but such questions were not raised. The appeal before us shows much looseness in framing the issues, in the conduct of the trial and the finding of the court; but it very clearly shows that substantial justice has been done by the judgment. We should not set aside such a judgment unless the errors claimed in argument are fatal, and relate to questions of law that clearly appear to have been raised and decided upon the trial.

The defendant’s objections to the exhibits produced in evidence were groundless; and we incline to think there was no material error in any of the rulings of the trial court on the admission of testimony; certainly there was none that injured the defendant in view of the denial of specific performance, and the finding that the sum paid by the plaintiff-represented the precise value of the land in question.

One ruling relates to a matter of practical interest, and is the only one which calls for comment. The plaintiff had no attorney and tried his own case; when he took the stand as a witness, the defendant objected to his testifying except in answer to questions to which the' defendant might object; and the court overruled the objection. A party to an action has a right to appear in court and try his own canse; he has also a right to appear as witness in his own behalf, and notwithstanding the inconvenience and irregularity involved in the examination as witness of a party to the action who is his own lawyer, the court cannot refuse to receive such testimony. In this case however, the party to the suit was also a practicing attorney at law; and the wholesome rule of professional etiquette which holds the positions of trial lawyer and material witness to be incompatible, applies as well, perhaps more strongly, to a case where the trial lawyer is his own client. The violation of this rule is, unfortunately, not without precedent, but it should be discountenanced by court and bar.

There is no error in the judgment of the Court of Common Pleas.,

In this opinion the other judges concurred.