Lipman, Wolfe & Co. v. Phœnix Assur. Co.
258 F. 544
9th Cir.
1919
Check Treatment
GILBERT, Circuit Judge

(after stating the facts as above). [1] The first question which arises is whether the complaint states a cause of action. In Cary v. Curtis, 3 How. 236, 247 (11 L. Ed. 576), the court said:

“The action of assumpsit for money had and received, it is said by Lord Mаnsfield, Burr, 1012, Moses v. MacFarlen, will lie in general whenever the *546defendant has received money which is the property of the plaintiff, and which the defendant is оbliged by the ties of natural justice and equity to refund. And by Buller, Justice, in Stratton v. Rastall, 2 T. R. 370, ‘that this action has .been of late years extended on the principle of its bеing considered like a bill in equity, and therefore, in order to recover money in this form of action, the party must show that he has equity and conscience оn his side, and could recover in a court of equity.’ These are the general grounds of the action as given from high authority.”

In Bither v. Packard, 115 Me. 306, 312, 98 Atl. 929, 932, the court said:

“It is elementary law that, when one person has in his possession money which in equity and good conscience belongs to another, the law will create an implied promise upon the рart of such person to pay the same to him to whom it belongs, and in such cases an action for money had and received may be maintained. This form of action is comprehensive In its reach and scope, and though the form of proceeding is in law it is equitable in spirit and purpose and the substantial justiсe ‍​‌‌‌‌​‌​‌​​‌‌​​‌​‌‌‌‌‌​‌​‌​‌‌‌​‌​​‌​‌​‌‌‌​‌​‌​​​‍which it promotes renders it favored by the courts. It lies for money paid under protest, or obtained through fraud, duress, extortion, imposition, or any other taking of undue advantage of the plaintiff’s situation, or otherwise involuntarily and wrongfully paid. Where the defendant is proved to have in his hands the money of the plaintiff which, ex sequo et bono, he ought to refund, the law conclusively .presumes that he has promised to do so” — citing Mayo v. Purington, 113 Me. 452, 455, 94 Atl. 935.

To the same effect are Gaines v. Miller, 111 U. S. 395, 4 Sup. Ct. 426, 28 L. Ed. 466; Taylor v. Currey, 192 Ill. App. 502; Early v. Atchison, T. & S. F. Ry. Co., 167 Mo. App. 252, 149 S. W. 1170; Cullen v. Sea Board Air Line, 63 Fla. 122, 58 South. 182; Knight v. Forbes, 19 Ga. App. 320, 91 S. E. 445, in which the court said that such an аction needs for its support no actual contractual relation, for the .law will imply a quasi contractual relation to uphold it whenever the сircumstances so require.

[2, 3] One cannot recover money voluntarily paid with a full knowledge of all the facts, although no obligation to pay existed, but money may be recovered where paid under circumstances of fraud, misrepresentation, and threats amounting to a duress which prevents the free exercise of the will, or where it is paid on a wrongful demand, to save the party paying from some great or irreparable mischief or damage from whiсh he could not otherwise be saved, and while money paid under apprehension, or induced by threats of suits or actions, is not in general paid under such duress as to make the payment compulsory, such threats may, in connection with other circumstances, such as the inexperience of the persоn threatened, or the peril to which Lis business is exposed, if the threats are carried out, constitute such duress that money paid under the influence thereоf may be recovered as for money had and received. Carew v. Rutherford, 106 Mass. 1, 8 Am. Rep. 287; Lehigh Coal & Nav. Co. v. Brown, 100 Pa. 338; Guetzkow Bros. Co. v. Breese, 96 Wis. 591, 72 N. W. 45, 65 Am. St. Rep. 83; Vyne v. Glenn, 41 Mich. 112, 1 N. W. 997; Baldwin v. Hutchison, 8 Ind. App. 454, 35 N. E. 711; Brown v. Worthington, 162 Mo. App. 508, 142 S. W. 1082; Rees v. Schmits, 164 Ill. App. 251; Sartwell v. Horton, 28 Vt. 370; Parmentier v. Pater, 13 Or. 121, 9 Pac. 59.

*547Here the complaint alleges the inexperience of the offiсers of the plaintiff, their mental disturbance in view of the threats and fraudulent representations, the large pecuniary interest involved in their business, and the pоwerful combination arrayed against them, represented by the Gallegos Committee, acting for and on behalf of more than 40 insurance companiеs, practically the whole insurance world, with power to destroy the credit of the plaintiff in error, and to prevent it from obtaining insurance upon its property. The combination against the plaintiff in error which is set forth in the complaint is not unlike that which was condemned in Carew v. Rutherford, supra, and we think the faсts alleged are sufficient to constitute a cause of action for money had and received.

[4] The second question here is which of the two following provisions of ‍​‌‌‌‌​‌​‌​​‌‌​​‌​‌‌‌‌‌​‌​‌​‌‌‌​‌​​‌​‌​‌‌‌​‌​‌​​​‍the statute of limitations of Oregon applies to the cause of action,

“See. 6. Within six years: An action upon a contract or liаbility express or implied * * * ”
"Sec. 8. Within two years: An action for assault, battery, false imprisonment, for crimina] conversation, or for any injury to the person or fights of another, not arising on contract, and not herein especially enumerated.”

The action for money had and received has always been rеgarded as an action in assumpsit, based upon a promise to repay which the law implies, where one has possession of money which in equity and gоod conscience belongs to another. “Having money that rightfully belongs to another, creates a debt; and whenever a debt .exists without any express рromise to pay, the law implies a promise, and the, action always sounds in contract.” Byxbie v. Wood, 24 N. Y. 607, 610. In that case it was held, that where one person fraudulently procures money of another, the law will imply a promise to ‍​‌‌‌‌​‌​‌​​‌‌​​‌​‌‌‌‌‌​‌​‌​‌‌‌​‌​​‌​‌​‌‌‌​‌​‌​​​‍repay it, and the injured party need not sue in tort, but may sue in assumpsit for money had аnd received. In Brewer v. Dyer, 7 Cush. (Mass.) 337, 340, the court said:

“Tlie law, operating on the act of the parties, creates the duty, establishes the privity, and implies the promise and obligation, on which the action is founded.”

That there is in such a case an implied promise to pay is generally recognized in the authorities, and it is so held in the state of Oregon. First National Bank v. Hovey, 34 Or. 162, 55 Pac. 535; Hornefius v. Wilkinson, 51 Or. 45, 93 Pac. 474. In 1 Wood on Limitations (4th Ed.) page 95, it is said :

“Without multiplying instances, generally assumpsit lies for the broach of any simple contract, and in all cases where а contract or promise exists by express act of the parties, or where the circumstances are such that the law will imply a promise; and it may be said that under this head a recovery may be liad for tortious acts properly embraced under the head of actions ex delicto in all those сases where, from the circumstances of the case, the law will imply a promise on the part of the wrongdoer to reimburse the party injured by his act.”

*548Page 96:

“In cases where a tort may be waived, and assumpsit brought therefor, the ,. latter ‍​‌‌‌‌​‌​‌​​‌‌​​‌​‌‌‌‌‌​‌​‌​‌‌‌​‌​​‌​‌​‌‌‌​‌​‌​​​‍action will lie, even though an action for the tort is barred by the statute.”

Among the cases cited are Ivey’s Adm’r v. Owens, 28 Ala. 641; Lamb v. Clark, 5 Piсk. (Mass.) 193; Kirkman v. Philips’ Heirs, 7 Heisk. (Tenn.) 222; Miller v. Miller, 7 Pick. (Mass.) 133, 19 Am. Dec. 264; Whitaker v. Poston, 120 Tenn. 207, 110 S. W. 1019; Fanson v. Linsley, 20 Kan. 235; Norden v. Jones, 33 Wis. 600, 14 Am. Rep. 782.

We may assume that the statute of limitations of Oregon was framed with a view to existing recognized forms of actions, and thаt when a limitation of six years was placed upon the commencement of actions “on a contract or liability express 'or implied,” it was intendеd to apply the same to all actions in assumpsit including that for money had and received. Such seems to have been the construction placed upon- similar statutes of limitation in other states. In Trower v. City and County of San Francisco, 157 Cal. 762, 109 Pac. 617, the court said:

“The action is one to recover moneys unjustly exacted and retаined by defendant. It is assumpsit for money had and received, and therefore an action ‘upon a contract, obligation or liability not founded upon an instrument in writing.’ ” ‘

In Kentucky it was held that an action for money had and received was governed by the statute of limitations ‍​‌‌‌‌​‌​‌​​‌‌​​‌​‌‌‌‌‌​‌​‌​‌‌‌​‌​​‌​‌​‌‌‌​‌​‌​​​‍applicable to cases “arising on а contract express or implied.” Clark v. Logan County, 138 Ky. 676, 128 S. W. 1079. In Missouri, the statute barred after five years all actions on “contracts, obligations or liabilities, express or implied.” It was held that the action for money had and received was governed thereby. Garrett v. Conklin, 52 Mo. App. 654. In Leather Manuf. Bank v. Merchants’ Bank, 128 U. S. 26, 9 Sup. Ct. 3, 32 L. Ed. 342, the action was brought to recover money paid on a forged check. The court held that under the New York statute the action was one on a “contract, obligation or liability, express or implied.” The action in the present case, having been commenced within six years, we think the cause of action was not barred.

The judgment is reversed, and the cause is remanded to the court below for further proceedings.