63 Mo. App. 482 | Mo. Ct. App. | 1895
Plaintiffs and defendant, who were engaged in business at St. Joseph, Missouri, each had an account against one Stout, an insolvent confectioner, at DeWitt, Nebraska. The claim of the Chases amounted to about $90, and that of the Willman Company to about $100. In August, 1893, plaintiffs sent their account to a firm of attorneys in Nebraska for collection. The attorneys presented the demand to Stout, who, though not then ready to pay, gave as security the written personal indorsement of a third party, due in sixty days. About three weeks thereafter the defendant placed its claim against Stout with the same Nebraska lawyers, with like instructions to collect. These attorneys were unable to collect the Willman claim, or to get any security therefor. Stout, however, executed his individual note to the Willman Company and gave it to the attorneys. Matters remained in this condition till November 13 following, when Stout went
The facts giving rise to this controversy are undisputed, and are, in effect, as we have already stated them. The sole question is, do they warrant the judgment which has been rendered against the defendant?
It would seem that there ought not to be any question as to the right of plaintiffs to the money in dispute. If legal principles are meant to serve the ends of jus- • tice, then surely the defendant can not be allowed to retain this fund, which clearly belongs to the plaintiffs. Ingenious counsel for defendant argues that plaintiffs can not maintain the action because, he says, there is no privity of contract between the parties. No privity of contract is required. The law will imply an obligation on defendant’s part to pay over to the rightful owner the money which was paid to it by mistake. Defendant’s claim against the Nebraska confectioner was not paid; it still holds its note unsatisfied. The money in question was paid to the common agent and attorney for the plaintiffs, and not for the defendant. This is conceded. The defendant, then, has in its possession this money, which in equity and good conscience ought to be given over to the plaintiffs.
There is no merit in the defense. In my opinion, the judgment of the circuit court ought to be affirmed, with ten per cent damages; and, the other judges concurring, it is so ordered.