Labelle v. Minneapolis Trust Co. ( 1928 )

¹ Reported in 219 N.W. 167. The plaintiff appealed from the probate court to the district court of Hennepin county from an order disallowing his claim of $1,500 against the estate of Thomas J. Skellet, deceased. In the district court pleadings were framed and a trial had before a jury which, under the direction of the court, found a verdict for the defendants, executors of the estate of Skellet. The plaintiff appeals from an order denying his motion for a new trial.

The plaintiff and the deceased, Thomas J. Skellet, were the principal stockholders of the Skellet Transfer Company. Skellet owned the larger part. They were induced to purchase lots in Miami, Florida, and were offered flattering promises of profits. On October 30, 1925, Skellet drew a check of the company for $1,500, $750 of which was charged to LaBelle and $750 to himself, and this money was used in making the first payment on the two lots. A designated lot was assigned to each. There can be no question but that LaBelle knew and assented to what was done. He as well as Skellet was eager for a profit on resale. It is clear that they did not intend a permanent investment. It is beyond question that LaBelle was an active participant, and we do not find it necessary to discuss the evidence.

Skellet died on January 23, 1926. The deal had not been closed. Only the first payments had been made. An effort was made to obtain a return of the money. The company with which the plaintiff and the decedent dealt returned to the representatives of Skellet the amount paid on his lot. It refused to return the money paid on the LaBelle lot. So far as appears it need not have returned either sum. The transaction was not a joint one. The money returned to the executors was not joint money. Skellet did not convert money of LaBelle when he drew the $1,500 check. The executors did not receive money in equity belonging in part to LaBelle when the company paid the $750. The facts do not make a case of money had and received. On no theory can the plaintiff recover.

Order affirmed.