140 W. Va. 305 | W. Va. | 1954
Plaintiff, Erma Case, instituted a notice of motion for judgment proceeding in the Circuit Court of Kanawha County against E. A. Haddad and Walton Shepherd. No defense was made by Haddad. The defendant Shepherd filed a counter-affidavit, a plea of general issue, and a special plea. Plaintiff demurred to the special plea, and thé trial court sustained the demurrer. The parties having agreed that the matters be submitted on the pleadings, the trial court entered judgment in the amount of five hundred dollars, the amount sued for, against Haddad and Shepherd. This Court granted a writ of error to Shepherd only.
The pleadings show that about April 8, 1947, plaintiff borrowed four thousand dollars from Haddad, for which
Shepherd contends that plaintiff has no right to maintain a notice of motion for judgment proceeding, for the reason that no contract, express or implied, existed between himself and plaintiff, and that the subsequent payment of five hundred dollars by plaintiff to Haddad constituted a voluntary payment which can not be recovered,
Code, 56-2-6, provides that: “Any person entitled to recover money by action on any contract may, on motion before any court which would have jurisdiction in an action, obtain judgment for such money after not less than twenty days’ notice * * *”. The same section provides further that: “* * * Defense to any such motion may be made in the same manner and to the same extent as to an action at law.” It will be noticed from the statute that the proceeding can be maintained only for recovery of money due “on any contract”. The word “contract”, as used in the statute, includes an implied contract. See Lambert v. Morton, 111 W. Va. 25, 160 S. E. 223. While liberality in some respects is allowed as to pleadings in a notice of motion for judgment proceeding, the notice must state facts sufficient to establish a cause of action arising on a contract, express or implied. See City of Moundsville v. Brown, 125 W. Va. 779, 25 S. E. 2d 900; City of Beckley v. Craighead, 125 W. Va. 484, 24 S. E. 2d 908; Hensley v. Copley, 122 W. Va. 621, 11 S. E. 2d 755; Mountain State Water Co. v. Town of Kingwood, 121 W. Va. 66, 1 S. E. 2d 395. Documents attempted to be filed as exhibits with pleadings in such a proceeding can not be considered by the court. See City of Beckley v. Craighead, supra, expressly disapproving a contra holding in Mountain State Water Co. v. Town of Kingwood, supra, and Baker v. Letzkus, 113 W. Va. 533, 168 S. E. 806. A motion for judgment proceeding is purely statutory, and there can be no doubt as to the correctness of the holding in the Craighead case, in view of the plain provision of the statute that “Defense to any such motion may be made in the same manner and to the same extent as to an action at law”. See State ex rel. Emery v. Rodgers, 138 W. Va. 562, 76 S. E. 2d 690; Cawley v. Board of Trustees, 138 W. Va. 571, 76 S. E. 2d 683; Hall v. Harvey Coal & Coke Co., 89 W. Va. 55, 108 S. E. 491; Pingley v. Pingley, 84 W. Va. 433, 100 S. E. 216.
In 17 C. J. S., Contracts, Section 3, the author distinguishes express contracts from implied contracts in this language: “The distinction between an express and implied contract is that when there is an actual promise, a contract is said to be express; when there is no actual promise, a contract is said to be implied. The distinction involves no difference in legal effect, but lies merely in the mode of manifesting assent, or rests in the mode of proof. The nature of the understanding is the same, and both express contracts and contracts implied in fact are founded on the mutual agreement of the parties and require a meeting of the minds. The former, as heretofore stated, is one in which the terms are stated in parol or in writing, while the latter is a matter of inference or deduction; in other words, the one must be proved by an actual agreement, while in the case of the other it will be implied that the party did make such an agreement as, under the circumstances disclosed, he ought in fairness to have made.”
In Johnson v. National Exchange Bank of Wheeling, 124 W. Va. 157, 19 S. E. 2d 441, in considering essential elements of an implied contract, this Court stated: “It is clear that recovery is sought on the theory that Johnson had ‘borrowed’ the proceeds of the bonds, with the intention on his part to repay the alleged loan. Judicially, her claim is grounded in a contract implied in fact. According to decisions and text writers, such a contract presupposes an obligation ‘arising from mutual agreement and intent to promise but where the agreement and promise have not been expressed in words.’ Williston on Contracts, Revised Ed., § 3. It requires a meeting of the minds, just as much as an express contract. Baltimore and Ohio R. Co. v. United States, 261 U. S. 592, 593, 43 S. Ct. 425, 67 L. ed. 816. In cases which did not involve the jurisdictional feature, this Court approved allowance by a commissioner
In the light of these applicable principles, we are forced to the conclusion that the facts in the record of this case furnish no basis for implying any contract between plaintiff and Haddad whereby Shepherd, in any circumstance, agreed to refund any sum to plaintiff. In truth, all the facts seem to clearly show the sole intention of the parties was that such payments should be applied to the ex-tinguishment of the indebtedness of Haddad, as such
In 2 Am. Jur., Agency, Section 349, it is stated: “Payment made to an agent having authority to receive or collect payment is equivalent to payment to the principal himself; such payment is complete when the money is delivered into the agent’s hands and is a discharge of the indebtedness owing to the principal even though the agent misappropriates the money. This is true whether the agent has express authority to collect, whether his authority is implied as incidental to the agency transaction, or whether it arises from the fact that the principal has held his agent out as having apparent authority to collect and the debtor has relied upon such appearance of authority. The debtor, however, makes payment to an agent at his own risk, he being bound to know the authority of the agent in this regard. The burden of proving such authority of an agent to receive payment is upon the person making the payment.”
In Golden v. O’Connell, 76 W. Va. 282, 85 S. E. 533, this Court stated: “* * * Where one appoints a person as his agent to receive a sum of money agreed to be paid in satisfaction of a claim, the settlement is complete the moment the agent receives payment. Railroad Co. v. Ragan, 104 Ga. 353. Payment to the authorized agent of a creditor by the debtor is equivalent to payment to the creditor himself. Bicknell v. Buck, 58 Ind. 354. So it has
Another well settled rule of law would preclude recovery by plaintiff. In Petty v. United Fuel Gas Co., 76 W. Va. 268, 85 S. E. 523, this Court held: “3. Money paid under a mistake of law and with full knowledge of the facts cannot be recovered back.” See Alderson v. Gauley Fuel Co., 116 W. Va. 95, 178 S. E. 626; Gaffney v. Stowers, 73 W. Va. 420, 80 S. E. 501; Beard v. Beard, 25 W. Va. 486; Haigh v. United States Building, Land and Loan Association, 19 W. Va. 792.
"There is no contention that plaintiff did not have full knowledge of all material facts at the time she made the additional payment of five hundred dollars to Haddad. She had been fully informed of the fact that Shepherd was the attorney for Haddad and that he had withheld the payments under a claim of right to do so by virtue of an attorney’s lien. She knew that the bank held for collection the note representing the indebtedness," and that the payments constituting the five hundred dollars withheld by Shepherd had not been indorsed on that note. In law, she was bound to know that the payments made to Shepherd discharged, pro tanto, the' indebtedness, whether such indorsements were made or not. The fact that she may have misconceived the legal consequence in making the further or second payment does not give cause for an action against Shepherd for recovery of payments previously paid to him. As above noted, we are not here concerned with the right of plaintiff to recover from Haddad. Neither are we concerned here with the existence of any right as between Shepherd and Haddad, or with the existence of any attorney’s' lien based on the employment of Shepherd by Haddad.
From the conclusions reached, it necessarily follows that the judgment of the Circuit Court of Kanawha County must be reversed.
Reversed.