54 Mich. 134 | Mich. | 1884
Plaintiff brought assumpsit, his declaration containing only the common counts. It appears that on the 31st day of December, 1881, plaintiff gave to one John E.Ward
Under these facts plaintiff claims that Ward held this $468.38 only in trust, and that he could not transfer title to it to Rood, but that he received it as the money of the plaintiff, and Rood is liable to him for money had and received, and that this action is brought upon that theory, and also upon the theory that it is immaterial whether it was the identical money given to Ward by plaintiff; that he could not transfer any money to Rood until the money he held in trust for others was provided for and set off. The infirmity of this position is that it assumes that Rood received the $468.38 which Neely placed in Ward’s hands to pay his back taxes. The rule contended for is well settled, that where property, held upon any trnst to keep, to use or invest in a particular way, is misapplied by the trustee, and converted into different property, or is sold and the proceeds are thus invested, the property can be followed wherever it can be traced through its transformations, and will be subject when found, in its new form, to the rights of the original owner or cestui que trust. Cook v. Tullis 18 Wall. 341.
But it is essential to the assertion of a beneficial title in a
An examination of cases at law where money has passed from the hands of the bailee or trustee to whom it was intrusted, to a third person, will show that the reason for allowing a recovery in an action for money had and received is based upon the fact that such person had received the plaintiff’s money under circumstances which showed that he had no right to retain it as against the plaintiff. Thus, in Rusk v. Newell 25 Ill. 226, cited on plaintiff’s brief, Rusk sent money by Newell, to be by him delivered to plaintiff’s agent to be applied to a specified purpose. Newell delivered the money to the agent and took his receipt. He then received from the agent the same money back in payment of a debt due him from the agent. Here the identical money came to the hands of the defendant. He knew it was plaintiff’s money when he received it, and knew it was being misapplied when he received it from the agent to pay the agent’s debt due to him. Another case cited on plaintiff’s brief will suffice by way of illustration to show the principle upon which the action can be maintained; thus in Mason v. Waite 17 Mass. 558, plaintiff had sent a package of money
In this case Ward received the money from the bank on Neely’s check, and the same was placed by the bank to Ward’s credit. He then drew checks on his account in the bank from time to time, until there remained due him from the bank about $91, and this indebtedness from the bank he transferred to Rood. The result of the whole proof is that plaintiff has wholly failed to trace Neely’s money, or the avails of his money, or of the fund created by it, into the hands of Rood.
As the facts upon which the plaintiff’s theory is based are not supported by the testimony in the case, it follows that the judgment of the circuit court must be affirmed.