146 Ill. App. 229 | Ill. App. Ct. | 1909
delivered the opinion of the court.
The theory of appellant’s counsel is that, on the hypothesis that Mr. W. E. Washington has failed to comply' with his contract, which hypothesis must be assumed, for the purpose of the argument, the plaintiff is entitled, in equity and good conscience, to a return of the $3,000 from the defendant. The contention of counsel for the defendant is, that by the terms of the contract between Washington and the plaintiff, the $3,000 paid by plaintiff is to be returned by Washington, in the event of his failure to comply with the terms of the contract, and that, such béing Washington’s express promise, there can be no recovery against the defendant, on an implied promise or othererwise. In order to ascertain the understanding and intention of the parties, Washington, Rosenbaum Bros. & Co. and the Drumm Commission Co., it is necessary, not only to consider the contract and the writings referred to in the preceding statement of facts, but also to place ourselves, as nearly as possible, in the place of the parties, respectively, keeping in mind their respective interests in the subject-matter, and their conduct in respect to it. The price at which Washington sold the cattle to the plaintiff, $15.75 per head, was the sum per head for which they were mortgaged to the defendant, the Drumm Commission Co. Therefore, it was Washington’s interest to pay his debt to that company, and have the security for it, the chattel mortgage, released as to the cattle sold by him to the plaintiff. It was also the interest of the defendant to have Washington’s debt to it paid, and it was clearly the interest both of the plaintiff and the defendant, that the money paid by plaintiff should be placed in the defendant’s hands, as otherwise the defendant would not release the mortgage on the cattle which the plaintiff has purchased from Washington. Hence the cash payment of $3,000 was, in substance, made to the defendant, and hence, also, this provision in the contract: “Party of the first part hereby agrees to receive the balance in current exchange, upon delivery of said cattle, in a draft on Chicago, payable to his order, through Drumm-Flato Commission Company.” That it was the understanding of the defendant that the purchase price of the cattle should be placed in its hands by the plaintiff, is, we think, evident from its letter of April 18, 1902, set out in the preceding statement. That letter is not addressed to Mr. Washington, but to Rosenbaum Bros. & Co., and reads thus: “Upon the payment to us of the sum of fifteen & 75/100 (15.75-100) dollars per head, for one thousand head of yearling steers sold you by W. E. Washington, according to contract between yourselves and said Washington * * * * we will execute and deliver to you a release of one chattel mortgage on the cattle,” etc. And, as if to leave no doubt of defendant’s understanding that the money due, or to become due, on the contract, was to be paid to it, this is written by it across the face of its letter:
“Fort Worth, Tex., 3-13-02. Rec’d on the within mentioned contract the sum of three thousand (3,000) dollars. Drumm-Flato Commission Co., per W. B. Stickney.” The words “the within mentioned contract” can only refer to the contract mentioned in the letter, viz., the contract between W. E. Washington and the plaintiff. We cannot escape the conclusion that the defendant was, with the understanding of Washington, the plaintiff and itself, a mere depositary of the cash payment of $3,000, the deposit to abide the result of the contract, with a possible interest in defendant, depending on the performance of the contract of March 12, 1902, by both parties to that contract; hut with the duty incumbent on defendant to return the money to the plaintiff, in the event that Washington should fail to comply with the contract. This, also, seems to have been defendant’s understanding, as in its letter of April 18th to the plaintiff, it says: “We presume, if the cattle are not delivered according to contract, that the money should be refunded to you, but we should have instructions from Mr. Washington to that effect.” We fail to perceive the necessity of Washington’s consent or instruction to a return of the money to the plaintiff, if Washington substantially failed to perform his part of the contract with the plaintiff. In such case he would not be entitled to the money or any part of it, and it is for the defendant, who has the money, to return it. Defendant admits possession of the money, and if Washington has failed to perform his contract, neither he nor defendant has any interest in it, and no sound reason is perceived why it should not be returned to the plaintiff, whose money it is. The defendant does not claim any interest in it.
The test, as to whether an- action for money had and received will lie, is, “does the money, in justice, belong to the plaintiff, and has the defendant received the money, and should he, in justice and right, return it to the plaintiff.” Wilson v. Turner, 164 Ill. 398, 403; First Nat. Bank of Springfield v. Gratton, 172 ib. 625; Allen v. Stenger, 74 ib. 119; Barnes v. Johnson, 84 ib. 95; 15 Am. & Eng. Ency. of Law, p. 1096.
Privity of contract is not necessary to a recovery. First National Bank v. Gatton, supra.
We are of opinion that the learned judge of the trial court erred in holding that there could be no recovery, even though Washington did not comply with the contract between him and the plaintiff. We understand the cause to have been decided on the sole ground that Washington, and not the defendant, is liable, in the event of Washington’s failure to fulfill his contact. The court excluded offered evidence to prove that Washington did not perform his contract with the plaintiff, so that the question whether he did or not is not before us.
If the defendant still believes, in good faith, that Washington’s consent is necessary to its protection, in case it shall return the money to the plaintiff, it may, out of abundant caution, notify Washington to defend the suit. '
The judgment will be reversed and the cause remanded.
Reversed and remanded.