Hindmarch v. Hoffman ( 1889 )

Opinion,

Mr. Justice Sterrett:

This case having been submitted for trial, without a jury, according to the provisions of the act of April 22, 1874, P. L. 109, the learned president of the Common Pleas found the facts substantially as follows :

On the morning of October 10,1885, Richard Savanack stole from plaintiff, in Buffalo, N. Y., a large sum of money, four hundred dollars of which he afterwards, on the same day, deposited with defendant, to be returned to him or upon his order. When defendant received the money, he was ignorant of the fact that it had been stolen from plaintiff by Savanack, but, while it was still in his possession and under his control, he was notified of that fact by plaintiff’s attorney, and that plaintiff claimed it as his property. Notwithstanding the notice, he afterwards paid the money, “ upon the order of Savanack, to Messrs. Brundage, Weaver & Bell, of Buffalo, receiving from them a bond to indemnify him against any liability to any other person for the money.” Afterwards, upon defendant’s refusal to pay the amount to plaintiff, this action of assumpsit was brought to recover the same.

It does not appear to have been even questioned in the court below, that, upon the established facts, plaintiff had a good cause of action, but the learned judge was of opinion that he could not recover in the present form of action, and he accordingly entered judgment for defendant. His conclusions of law were duly excepted to, and they now constitute the specifications of error before us.

As found by the learned judge, the money sued for as money had and received by defendant to the use of plaintiff, never belonged to Savanack, nor could he have legally recovered any part of it. On the contrary, it was plaintiff’s money, stolen from him by Savanack, and by the latter left with the defendant. While it was thus in his custody and under his control. he was fully informed, of the theft, and also that plaintiff, as owner of the money, claimed it. Under these circumstances, it was clearly his duty to hold it for plaintiff, and, upon satisfactory proof of ownership, to pay it over to him. From the existence of that duty the law raised an implied promise by defendant to do so, but, in disregard of his duty in the premises, he paid it over, on the order of the thief, to parties who had no right whatever to receive it. Justice demands that he should now be compelled to pay the amount to the rightful owner, and there is no good reason why it should not be recovered in the present form of action.

In Clarke v. Shee, 1 Cowp. 197, it was held that case, for money had and received, will lie by the true owner of money against a third person into .whose hands it came mala fide, provided its identity can be traced or ascertained. Referring to the form of action in that case, Lord Mansfield characterized it as “ a liberal action in the nature of a bill in equity; and if, under the circumstances of the case, it appears that the defendant cannot in conscience retain what is the subject matter of it, the plaintiff may well support this action.”

In 2 Greenl. Ev., 13 ed., §§ 102 and 120, the principle is thus stated : “ Where' the defendant is proven to have in his hands the money of plaintiff, which ex Eequo et bono he ought to refund, the law conclusively presumes that he has promised to do so, and the jury are bound to find accordingly, and after verdict the promise is presumed to have been actually proved.” “ So, if money of the plaintiff has in any other manner come to the defendant’s hands, for which he would be chargeable in tort, the plaintiff may waive the tort and bring assumpsit on the common counts.”

Assumpsit was also sustained in Mason v. Waite, 17 Mass. 558, upon the following facts : Bank notes, done up in a package, were delivered by the owner to a carrier, who, without authority, paid them to a third party for a loss at a faro table. In an opinion sustaining a judgment in favor of the owner of the notes, against the party to whom they were thus paid, the chief justice, after remarking that trover would have been the better action but for the difficulty of identifying bank notes, said: “ We do not see, however, why the action for money had and received will not lie. The notes were paid and received as money, and as to any want of privity or any implied promise, the law seems to be that where one has received money of another, and has not a right conscientiously to retain it, the law implies a promise that he will pay it over.”

The defendant, in the case at bar, did not better bis position by improperly banding over the money in question to those who had no right whatever to receive it, after ho knew it had been stolen and that plaintiff was its true owner. The undisputed facts connected with his possession of the money, immediately before be parted with it, are quite sufficient to raise such an implied promise as will support assumpsit. W e are therefore of opinion that the court erred in not entering judgment in favor of plaintiff for the amount claimed, viz.: four hundred dollars with interest from May 24, 1886, the time suit was commenced before the city recorder.

Judgment reversed and judgment is now entered in favor of tlie plaintiff and against tbe defendant for four hundred dollars with interest from May 24,1886, and costs.