109 Wis. 182 | Wis. | 1901
The facts stated in the complaint show that this is an action for money had and received. In Limited I. Asso. v. Glendale I. Asso. 99 Wis. 54, this court said: “The rule is quite elementary that, to enable a person to maintain an action for money had and received, it is necessary for him to establish that the persons sought to be charged have .received money belonging to him, or to which he is entitled. That is the fundamental fact upon which the right of action depends. Nat. T. Co. v. Gleason, 77 N. Y. 400. The purpose of such an action is not to recover damages, but to make the party disgorge, and the recovery must necessarily be limited by the party’s enrichment from the alleged transaction.” See, also, Woodward v. Hill, 6 Wis. 143; Lawton
The cause of action stated proceeds upon the assumption that defendant has received money for insurance upon the plaintiff’s victoria, which, in equity and good conscience, it ought to pay over to her. It is alleged that the loss on defendant’s stock, including plaintiff’s victoria, was adjusted by the insurance companies and has been paid to defendant, and that the latter has neglected and refused to pay over the share to Avhich plaintiff is entitled. Upon this basis, when the plaintiff proved that no claim for the value of her property was made to or adjusted by the insurance companies, her cause of action entirely failed, and the motion for a nonsuit ought to have been granted. The- only allegation of any shortcoming on the part of defendant is a failure to pay over the money which it is claimed it received for plaintiff’s use. Having affirmatively shown that defendant had not received any such money, the defendant was absolutely entitled to a ruling that plaintiff’s right to recover upon the allegations of her complaint did not exist. .
This renders it unnecessary to consider or discuss other questions raised in the briefs of counsel, save the one relating to the motion for a new trial. The record shows that the jury returned a verdict on February 6, 1900, and then says, “ Thereupon the defendant moved the court for a new trial, which ivas denied.” It is urged that because it does not affirmatively appear upon what grounds the motion ivas based, or that it was made at the same term at which the action was tried, no question is presented to this court as to any error sought to be raised thereby. Ve need not repeat what was said in Williams v. Williams, 102 Vis. 246, regarding the practice in such cases. The recitation in the record of the rendition of verdict, and that “ thereupon the defendant moved for a new trial,” reasonably construed,
By the Court.— The judgment of the superior court of Milwaukee county is reversed, and the cause is remanded for a new trial.
