95 F. 741 | U.S. Circuit Court for the District of Colorado | 1899
The plaintiff brings its action to recover from the defendant money had and received to its use. In the complaint it is alleged “that on, to wit, the 7th day of March., 1896, at Colorado Springs, in the county of El Paso, state of Colorado, the defendant received from the plaintiff, as the agent and assistant treasurer of said plaintiff, the sum of one hundred thousand dollars ($100,000), to the use of the said plaintiff.” To this complaint the defendant has filed three separate defenses. The first is, in substance, the general issue. The second and third defenses set up a contract between one Orrin B. Peck and the defendant, by the terms of which the defendant, among other things, agreed to pay $100,000, to be placed in the treasury of the plaintiff company, to be used and paid out for the use of the company in the state of Colorado, from time to time, as needed. A failure of the consideration of this contract is attempted to be stated, and the further fact that the plaintiff, on its organization, had knowledge that there was no consideration therefor. To these two last defenses the plaintiff has interposed a general demurrer.
It is evident that no failure of the consideration of the contract between the defendant and Orrin B. Peck would justify the defendant in retaining the money received by him from the plaintiff as its agent and treasurer. Having received such money, the defendant could only justify its retention by virtue of his relations to the plaintiff. He could not claim a right to it by any title antagonistic to the plaintiff until he had first returned the money to the plaintiff, or disposed of it in accordance with its order. This principle is not denied by the defendant, but it is claimed in his behalf that the words, “from the plaintiff, as agent and treasurer of said plaintiff,” are surplusage; that the plaintiff, on a trial, might give in evidence as the foundation of its claim the contract between the defendant and Peck; and that, therefore, the defendant should be permitted to plead the failure of the consideration of that contract. If we admit the premise, the conclusion of this argument would seem to follow. Upon the general issue in an action for money received to the use of the plaintiff the defendant may defend himself by everything that shows that the plaintiff ex sequo et bono is not, and never was, entitled to the whole of his demand, or any part of it. The general issue operates as a denial of the facts which make a receipt of money a receipt to the plaintiff’s use. In Clark v. Dignam, 3 Mees. & W. 478, Parke, B., said: “It all arises on the general issue. The defendant disputes all the facts from which the legal inference arises that the money was had and received to the use of the plaintiff.” Owen v. Challis, 6 Man., G. & S. 121; Williams v. Vines, 6 Adol. & E. (N. S.) 355; Eddy v. Smith, 13 Wend. 488; Moses v. Macferlan, 2 Burrows, 1010. But it is perfectly proper for the plaintiff to so frame the count as to state the circumstances under which the money was received by the defendant. In some cases this is required. Por instance, in Virginia, in actions against sheriffs for money received by them by virtue of their office, the nature of the transaction is required to be stated in the declaration, so as to distinguish it from a private debt or contract, in order to prevent sur
If this conclusion be incorrect, it still follows that the demurrer must be sustained to both of these defenses. The second defense sets up, first, a contract between the defendant and Orrin B. Peck, dated February 5, 1896, by which Peck agreed to grant to the defendant the license to use, in El Paso county; Colo., a certain patented process for the reduction and concentration of ores, and also agreed to erect on land to be furnished by the defendant a mill for the treatment of ores with said process for the purpose of treating the ores of a mine owned by the defendant in that county, in consideration of which the defendant agreed to make to Peck certain payments. The defense proceeds to allege that at the time, and for the purpose of deceiving the defendant, Peck made to him various representations as to the efficiency of the process for the treatment of the particular ores found in the defendant’s mine, and that such efficiency had been demonstrated by experiments theretofore made on similar ores; and also that he (Peck) would return to the state of Illinois, and organize a corporation, and vest it with the right to use the said patented process throughout the state of Colorado excc pt in El Paso county, and that the defendant should be admitted to the company so to be organized as a stockholder to the extent of one-fourth of its capital stock at the par value thereof. But it is not alleged that the defendant at this time agreed to become'a stockholder in the plaintiff corporation. The defense proceeds to the effect that upon the 7th day of March, 1896, in pursuance of the arrangement of February 5, 1896, and as a part of that transaction, the defendant and Peck entered into a contract, the material part of which is as follows:
“Colorado Springs, Colorado, March 7, 189(5.
“I have, this day purchased of Orrin B. Peck twenty-five hundred shares, oi one hundred dollars each, of the capilal stock of the Peck Colorado Company, of Chicago, Ill., at par, being one-fourth of the capital stock of said company, a corporation of the state of Illinois, and I have paid to him on same fifty thousand dollars in cash and one hundred thousand dollars to be placed in the treasury of said company, to be used and paid out for the use of said company in said state, from time to time, as needed, in fall payment for fifteen hundred of said shares, and for the remaining one thousand shares I a.in to pay Ihe sum of one hundred thousand dollars in payments at the time and in the amounts as follows, viz. fifty thousand on or before six months from this date, and the remaining fifty thousand dollars on or before January 1st, A. D. 1897.”
This contract was signed by the defendant, and assented to by Peck; and it is alleged that the $100,000 sought to be recovered in this action is the particular $100,000 which, by the terms of this