213 Wis. 178 | Wis. | 1933
The following opinion was filed October 10, 1933:
There is no substantial dispute in the facts. Ed. Jacobson was appointed treasurer of the district in 1926. He was elected in 1927 to succeed himself and reelected each year thereafter up to and including 1931. From 1926 until December, 1931, when he resigned, he continued as such officer. Evidently through inadvertence he was never required to give a bond. During the times mentioned he carried his checking account at the bank which was variously listed on the books of the bank as follows: “Ed. Jacobson Treas. Boaz Graded Schools,” “Ed. Jacobson Treas.” and “Boaz Graded School Jt. School Dist. ‡): 2 Boaz Dayton & Akan, Ed. Jacobson Treas.” In August, 1927, the school board authorized a loan of $400. It was
It appears that prior to that time, on October 8, 1930, during the school year 1930-1931, Jacobson borrowed the sum of $1,000 on a note payable February 1, 1931, which note was paid by him on May 4, 1931; that on November 24, 1930, he again borrowed the sum of $1,000 and gave a note due March 15, 1931, which was paid by him on April 4, 1931. Both notes, together with interest, were paid by checks which were charged to his account. Another unauthorized note for $250 was renewed during the year which no doubt necessitated the payment of a small amount of additional interest.
The court was of the opinion that the facts supported the plaintiff’s claims for moneys had and received although the notes, being wholly unauthorized, were void and no recovery could be had on them.
It is the law of this state “that where a party in good faith loans money to a municipality, to be used by the municipality for a lawful purpose, and which is in fact used for that purpose, on failure of the municipality to pay the loan an action may be maintained for money had and received, notwithstanding the contract was void for irregularity” (First Nat. Bank v. Joint School Dist. 187 Wis. 547, 550, 203 N. W. 762), or as similarly stated: “That if a municipality obtains money of a person by an illegal sale of prop
This doctrine, however, does not extend to contracts expressly prohibited by law. Riesen v. School District, 189 Wis. 607, 208 N. W. 472; Thomson v. Town of Elton, supra. Nor does it extend to a recovery in defiance of a constitutional provision against the municipality becoming liable at all. McGillivray v. Joint School Dist. 112 Wis. 354, 88 N. W. 310. The rule seems clearly to require that a person seeking to recover money had and received by a municipality must show that he acted in good faith in loaning this money and that the particular loan was for a lawful purpose.
Recovery in this case was permitted on the ground that the district had had and received the bank’s money. An action for money had and received, though one at law, is governed by equitable principles and can be maintained only if the defendant has received money which in equity and good conscience it ought to pay or repay to the plaintiff. County of Sheboygan v. City of Sheboygan, 209 Wis. 452, 245 N. W. 87; Steuerwald v. Richter, 158 Wis. 597, 149 N. W. 692. Recovery in such an action is based on the law of quasi-contracts and is ordinarily permitted only when there has been an “unjust enrichment,” i. e. the receipt by one person from another of a benefit, the retention of which would be unjust. Woodward, Quasi-Contracts, § 1. The
We think the evidence fails to support the conclusion that the district has been enriched at the expense of the bank or has received a benefit from the bank which it is inequitable that it should retain. It appears without dispute that on April 4, 1931, Jacobson repaid to the bank from school moneys the sum of $1,000 and interest; that again on May 4, 1931, he paid to the bank, out of moneys belonging to the school district, the further sum of $1,000 and interest. He also paid the interest on a note for $250 on September 2, 1931. The bank therefore obtained payment of certain of its unauthorized loans out of moneys belonging to the district in a sum considerably exceeding $2,000.
We think, under the circumstances, that it cannot be said and should not be said that the district ha§ been enriched at the expense of the bank, or has received a benefit which it would be inequitable for it to retain.
By the Court. — Judgment reversed, with directions to dismiss the complaint.
A motion for a rehearing was denied, with $25 costs, on December 5, 1933,