13 N.Y.S. 891 | New York Court of Common Pleas | 1891
In form and in substance the action is for money had and received by defendant to plaintiff’s use. The rule is elementary that, to maintain such action, the plaintiff must allege and prove that the defendant has actually received money, or its equivalent, which belongs of right to the plaintiff, and which the defendant is bound in conscience to pay over to the plaintiff. And the evidence must tend to show a definite and determinate sum so due and payable to the plaintiff. Harvey v. Archbold, 3 Barn. & C. 626; Tankersley v. Childers, 23 Ala. 781. Although in form a common-law action, the litigation proceeds upon equitable principles, and, as the plaintiff may recover what appears to be due him ex cequo et bona, so the defendant may defeat the claim by showing a right of a like nature to retain the money. In the construction of this complaint the plaintiff exhibits a correct conception of the rules governing the action. Accordingly he alleges that the defendant, as bailee of his goods, insured them on his account; that the goods were destroyed by fire; and that upon such insurance the defendant received $177.85, which the plaintiff has demanded of him, but which he refuses to pay over, On the conclusion of the plaintiff’s case, the complaint was dismissed ; and the question is, did the evidence produced by the plaintiff, viewed in the aspect most favorable to him, authorize a verdict in his favor ?
The case presented by the plaintiff was this: The delivery to the defendant, for sale on commission, of five musical boxes, of the value of $177.85; their destruction by fire; insurance of defendant in several companies “on merchandise the property of the assured, or held by the said assured in trust or on commission,” to the amount of $67,000; that the value of the merchandise destroyed by fire in the defendant’s store was $151,950.23; that the value of defendant’s own property so destroyed was $149,665.03, and of consigned property $2,285.20; that defendant collected on all the insurance $61,760, less 5 per cent.; that in his sworn proof of loss presented to the insurance companies, and on which payment by them was based, the defendant included “Merchandise the property of others for which Henry Rogers is liable and responsible, $2,285.50, ” and also under the heading “Merchandise on consignment with Henry Rogers, January 30, 1888, and which is entirely destroyed by fire, Carl Gutman, $177.85;” that payments of the insurance money “were
The circumstance upon which the appellant relies as evidence that the respondent received $177.85, on the insurance of appellant’s goods, is that in his proofs of loss the respondent included the consignment of appellant. But this he did in necessary compliance with the provisions of the policies, which required a statement of the total loss; and it is still not apparent that the respondent received anything on account of the appellant’s consignment. While thus the principle suggested in Stilwell v. Staples, supra, fails to support the appellant’s contention, the point actually adjudicated by the court is fatal to his case; for the court ruled that, “where such insurance is effected by the the bailee or agent as a mere volunteer, he may abandon or modify it at his pleasure, until the principal has in some manner ratified or adopted it; and accordingly where a manufacturer effected insurance on his own goods and goods held by him in trust, and a loss occurred of his own goods to a greater value than the whole amount of insurance, held, that the owner of materials in the hands of the manufacturer.to be worked up, who had in no way intervened in respect to an insurance, and had no knowledge of its existence until after the manufacturer had claimed the whole amount for himself, was not entitled to participate therein.” And, on page 406, the court, per Selden, J., say * “ The right of the owner of the goods to ratify or adopt such a policy, whether before or after a loss, must, from the nature of the case, be- subject to certain limitations; that is, it must be subordinate to the right of the party who obtained the policy, to deal with it as he pleases, up to the time of its actual adoption.” In the case at bar there is no evidence to warrant the conclusion that the appellant “actually adopted” the policy before the respondent “claimed the whole amount for himself.” Reverting now to the peculiar-nature of this action, by virtue of which, “ whenever one person has in his