144 P. 494 | Or. | 1914
delivered the opinion of the court.
The plaintiff is a banking corporation doing business at North Powder, in Union County. The defendants are a copartnership, doing a mercantile business at North Powder. The Metzler-Hegsted Lumber Company was doing business in the manufacture and sale of lumber at or near North Powder, and the Radford Lumber Company, -also, did business there. The Metzler-Hegsted Lumber Company manufactured lumber and sold it to the Radford Lumber Company, and the latter shipped it east, and paid the former company for the lumber by drafts on eastern banks. On the 2d day of February, 1912, the defendants executed to the plaintiff their promissory note for $1,000 payable in six months from its date, and bearing interest at the
The answer pleads payment of said promissory note and, also, a counterclaim in the sum of $1,000 for money had and received by the plaintiffs for the use and benefit of the defendants, on the 16th day of December, 1912, and interest on the said sum.
The reply denies the new matter of the answer and sets up new matter. The issues were tried by a jury, and a verdict and a judgment- were rendered in favor of the defendants. The plaintiff appeals.
The next day one of the defendants and E. J. Metzler, manager of the Metzgler-Hegsted Lumber Company, called at the plaintiff bank, and Mr. Metzler said to the cashier of the bank (Lambert):
“I have given Will [meaning one of the defendants] a check for a thousand dollars [meaning the check referred to supra], and when my next draft comes in, you credit his account with that amount. ’ ’
That was the day after said check was given. That afternoon one of the defendants left said check with
The defendant W. A. Hudelson says that, when he presented said check for $1,000 to the bank the second time for payment, on December 16, 1912, the bank had funds of the Metzler-Hegsted Lumber Company with which to pay it, as Mr. Brown had just deposited said draft for $1,000; but the assistant cashier, Gilkison, told him that he could not pay it, for Mr. Lambert had instructed him to apply the $1,000 on the note that the bank held against the Metzler-Hegsted Lumber Company.
E. J. Metzler, manager of the Metzler-Hegsted Lumber Company, testified that he sold the company’s lumber to an eastern company (the Radford Lumber Com
“We simply talked the matter over. My understanding was that this could be arranged all right. He was very busy that morning when we were talking to him. ’ ’
In another place, this witness testified:
“I simple told Mr. Hudelson about the circumstances about the money not being there, and we went over to the bank, and I told Mr. Lambert that I had given Mr. Hudelson this check for $1,000, and as soon as the money came in I would like for him to take care of this check. ’ ’
He said, also, that it was to be paid out of funds coming from the Eadford Lumber Company on the November estimates. The checks referred to included
There were other facts and circumstances tending to show that the plaintiff received from the Metzler-Hegsted Lumber Company, for the defendants, the $1,000 on December 16, 1912; but it is not necessary to set them out in this opinion. It is shown that the Metzler-Hegsted Lumber Company, on November 25, 1912, when it drew the check on the plaintiff, payable to the defendants, for $1,000, was indebted to the defendants in the sum of $1,900, and that most of this was for supplies that the defendants had furnished the employees of said company at the latter’s request, while they were manufacturing lumber. The check was drawn for only $1,000. The defendant presented the check to the plaintiff for payment, and the assistant cashier, then in charge of the bank, refused to pay the check at that time for the reason that the drawer did not have sufficient funds in the bank to pay it, and he informed the defendants that they would have to wait until the next draft came in. One of the defendants and Mr. Metzler called at the bank the next day, and the latter informed the cashier (Mr. Lambert) that he had given Mr. Hudelson a check for $1,000, and that, as soon as the money came in, he would like to have him take care of it. Mr. Lambert made no response, and Mr. Metzler adds that it was his understanding that that could be arranged all right, meaning, apparently, that it was his understanding, from what had been said, that the bank would pay said check, when the next draft should come from the east.
We find that there was some evidence tending to prove that the money that was paid into the bank by the Radford Lumber Company, after the drawing of said check for $1,000, was so paid in with the under
In 2 Elliott, Contracts, Section 1374, the author says:
“The right to maintain an action for money had and received is general in its nature. Where there is a legal right to demand a sum of money and there is no other remedy, the law will, for all purposes of a remedy, imply a promise of payment. The action is comprehensive in its reach' and scope, and is favored under the law. The right to recover is equitable in its nature, although the action is in reality one at law.”
2 Page, Contracts, Section 789, says, inter alia:
“If A receives money which belongs to B, under circumstances which give A no right thereto, but which bind A, on principles of justice and fairness, to repay such money to B, the common law allowed B to sue as on contract although there was no express contract, and no real implied contract. * * Since the contract alleged in the plaintiff’s complaint is often purely fictitious, the plaintiff’s right to recover in contract does*200 not depend upon any principles of privity of contract between the plaintiff and tbe defendant, and no privity is necessary. The plaintiff’s right to recover is governed by principles of equity, although the action is one at law. ’ ’
In this case, if the plaintiff bank received the $1,000 that was deposited therein on December 16, 1912, by the Eadford Lumber Company for the Metzler-Hegsted Lumber Company, with the agreement, express or implied, between the plaintiff and the Metzler-Hegsted Lumber Company and the defendants, that the plaintiff should pay of deliver said money to the defendants in payment of the sum of $1,000 that the last-named company owed the defendants, the defendants had a right to recover from the plaintiff said sum of $1,000, or to have it set off against the amount that they owed the plaintiff on the promissory note described in the complaint. Money received under the conditions just stated constitutes a special deposit, and must be applied by the bank receiving it in accordance with the agreement under which it was received.
“That the Circuit Court erred in allowing the witnesses, and each of them, to answer the several questions respectively embodied in exceptions 1 to 52, inclusive.”
This is an attempt to assign error in 52 separate rulings of the trial court by the use of only 26 words. Eules 11 and 12 of this court (56 Or. 618-621, 117 Pac. x, xi) require the printed abstract to contain the appellant’s assignment of errors relied upon, and these errors are required to be “set out” briefly and concisely.
‘ ‘ To recite or narrate facts or circumstances; to allege or aver; to describe or to incorporate; as, to set out a deed or contract. ’ ’
To ‘ ‘ set out briefly and concisely, ’ ’ as used in rule 11, supra, means to state or describe briefly the rulings of the trial court wbicb the appellant desires to have reviewed on the appeal. The assignment set out supra does not describe or state who the witnesses referred to were, or what questions were asked each or any of them, or even the subject concerning which any of them testified. It raises no question for review. Assignments 2, 3, 5, 6, 7 and 8, also, are too indefinite to raise any questions for trial here.
Mr. Lambert, cashier of the plaintiff, says that this statement was made on or about November 10, 1912, and that it was in writing. He was unable to produce it, and says that he gave it to Mr. Metzler, manager of the Metzler-Hegsted Lumber Company. Mr. Metzler seems not to know what became of it, but thinks that he gave it to Mr. W. A. Hudelson, one of the defendants, to whom he had made an assignment for the benefit of his creditors. Why the bank, after receiving said assignment, should have handed it back to Metzler, or why Metzler should have delivered it to Mr. Hudelson, does not appear from the evidence. Mr. Metzler is not sure that he gave it to Mr. Hudelson, and the latter is positive that he did not deliver it to' him and that he had no knowledge of the existence of said instrument. Neither Mr. Brown, manager of the company that owed the debts assigned by said instrument, nor the defendants had any notice or knowledge of the existence of said supposed assignment. Mr. Lambert says that it was made on or about November 10,1912, and hence, if it was so made, it was executed 15 days before the Metzler-Hegsted Lumber Company drew said check for $1,000 on the plaintiff in favor of the defendants. On November 25, 1912, fifteen days after said assignment
The next day Mr. Metzler and Mr. Hudelson called at the bank, and Mr. Lambert, the cashier, was in. Mr. Metzler informed Mr. Lambert that he had given Mr. Hudelson a check on the bank for $1,000, and that when his next draft should come in he wanted him to credit the defendants ’ account with the amount of said check. Now, it seems strange that Mr. Metzler would tell Mr. Lambert to credit the defendants’ account with the amount of his next draft, if Metzler’s Company had previously assigned to the bank the debt that would be paid by his next draft. According to the evidence of Metzler and Hudelson, Lambert made no objection to the statement that he should pay said check or credit the defendants with the amount thereof when the next Metzler draft should be received. If he had at that time an assignment covering the expected draft, why did he not state to Metzler and Hudelson that he would not pay said check out of the proceeds of the expected draft for the reason that the bank had an assignment
On pages 105 and 106 of the evidence, Metzler testifies that said supposed assignment was made at the request of Mr. Lambert for the purpose of protecting the bank against the Bank Commissioner, and that it was to be used “just for that purpose.” The evidence and circumstances concerning said assignment are not very satisfactory. No one seems to have known of it but Lambert and Metzler, and they are unable to tell what became of it.
The questions concerning said supposed assignment were properly submitted to the jury by the instructions of the court, and it seems that the jury must have been of the opinion that the assignment was never executed, or that it was made after the bank received said money for the use and benefit of the defendants, or, if it was executed, that it did not cover the $1,000 received by the plaintiff for the defendants. The questions concerning said assignment were facts to be determined by the jury, under the instructions of the court.
The judgment of the court below is affirmed.
Affirmed. ■ Beheabing Denied.