15 Wash. 194 | Wash. | 1896
The opinion of the court was delivered by
Appeal from judgment of the superior court of King county in favor of defendant. This action was brought by plaintiff, as assignee of divers
Two principal defenses are urged: First, that the sums claimed by plaintiff were not surplus, to which the plaintiff’s assignors were entitled, but constituted a fee or commission which the officer making the sale claimed the right to charge, and which the purchaser at the sale knowingly paid to such officer as a commission charge on said sale; and that “ neither the appellant nor his assignors had or has any interest in or ■concern with the money or transaction, but the same is a matter between the purchaser and the sheriff.” The second .ground of defense is:
“ That the sheriff’s payment to the county of this indebtedness due from him to either the county or the appellant’s assignors was voluntary, with full knowledge of all the facts, under a claim of the county to payment in its own right, and not" in any wise as the*196 agent of or pretending to be authorized to receive the same for or on behalf of appellant’s assignors; that the county claimed said payment as creditor of the sheriff on account of his liability to the county for all fees and commissions received by him; that the sheriff was indebted for the amounts herein claimed as surplus, either to the county as for commissions, or to the respective judgment debtors as for surplus; and that his payment of this indebtedness to the county, an independent claimant, in preference of the respective judgment debtors, also independent claimants, does not invest appellant,'as assignee of said judgment debtors, with a right of action against respondent for the amounts of these payments, upon a money demand, as for money had and received or otherwise, although it may be true that of right the sheriff should have made such payments to appellant’s assignor.”
It becomes necessary to ascertain whether appellant’s assignors were entitled to the respective sums claimed from the sheriff conducting the sales. Counsel for respondent do not seriously contend that they were not, and this court held in State, ex rel. Thompson, v. Prince, 9 Wash. 107 (87 Pac. 291), that a sheriff was not entitled to a commission upon the sale of mortgaged premises under a decree of foreclosure where the property was bid in by the plaintiff for the amount of the mortgage debt. It matters not that the officer believed that 'he was by law entitled to and required to retain a commission upon such sale, and that this opinion was concurred in by the bidder, because, in contemplation of the law, the property is sold for the highest sum bid, and the law makes the application of the purchase price. To give effect to what is asserted to have been the intention of the purchaser, viz.; that a portion of the sum bid by him was in payment of a commission which the sheriff conducting the sale demanded, and which the bidder supposed he had a
2. The remaining question is, will assumpsit lie against the county for the recovery of such surplus which the sheriff has wrongfully and mistakenly paid into its treasury? Counsel for the respondent insist that the county stands in the position of an independent and adverse claimant, and that it only received from' the sheriff payment of a claim alleged upon its part, and that payment by the sheriff “upon its independent claim does not discharge the sheriff from .such indebtedness if, as a matter of' right, appellant’s assignors were entitled to have it paid to them by the sheriff.” It is not pretended that the respondent has any valid or legal-right to the moneys in controversy. It received the moneys of plaintiff’s assignors without' right or consideration, and it would be inequitable for it to retain the sums so received. Under such circumstances, the law implies a promise of restitution for the benefit of the rightful owner. As was said by Judge Field in Pimental v. City of San Francisco, 21 Cal. 352:
“ If the city obtain the money of another by mistake, or without authority of law, it is her duty to refund it. . . . If she obtain other property, which does not belong to her, it is her duty to restore it, or, if used, to render an equivalent therefor. . . . The legal liability springs from the moral duty to make restitution. And we do not appreciate the morality which denies in such cases any rights to the individual whose money or other property has been thus appropriated. The law countenances no such wretched ethics; its command always is to do justice.”
But it is insisted that there is no privity between the plaintiff or his assignors and the respondent respecting the transaction. It is well settled that
“ An action for money had and received lies against any one who has money in his hands which he is not entitled to hold as against the plaintiff, and want of privity between the parties is no obstacle to the action.” Bank of Metropolis v. First Nat. Bank of Jersey City, 19 Fed. 301.
In Bayne v. United States, 93 U. S. 642, the supreme court of the United States say :
“Assumpsit will lie whenever the defendant has received money which is the property of the plaintiff, and which the defendant is obliged by natural justice and equity to refund.”
A well-considered case, which involved this very question, is that of State v. Village of St. Johnsbury, 59 Vt. 332 (10 Atl. 531, 533). In the course of the opinion in that case, this language appears :
“But'it is said that assumpsit for money had and received will not lie, for that there is no privity between the state and the village, as the latter received from third persons, and has retained the money in good faith, under an adverse claim of right and ownership. But, in order to maintain this action, there need be no privity between the parties, nor any promise to pay, other than what arises and is implied from the fact that the defendant has money in his hands belonging to the plaintiff, that he has no right conscientiously to retain. In such case the equitable principle on which the action is founded implies the*200 promise. When the fact is found that the defendant has the plaintiff’s money, if he can show neither legal nor equitable ground for keeping it, the law creates the privity and the promise.”
The rule was announced by ' the court of king’s bench as early as 1725, in the case of Attorney General v. Perry, 2 Com. 481, that
“ Whenever a man receives money belonging to another without any reason, authority, or consideration, an action lies against the receiver as for money received to the other’s use; and this as well where the money is received through mistake, under color, and upon an apprehension, though a mistaken apprehension of having good authority to receive it, as where it is received by imposition, fraud, or deceit in the receiver.”
In addition to the authorities already cited, the proposition is fully sustained in Haebler v. Myers, 132 N. Y. 363 (28 Am. St. Rep. 589) (30 N. E. 963); United States v. State Bank, 96 U. S. 30; Criswell v. Whitney, 13 Ind. App. 67 (41 N. E. 78); Board v. Robinson, (N. M.) 34 Pac. 295; Brand v. Williams, 29 Minn. 238 (13 N. W. 42); Knapp v. Hobbs, 50 N. H. 476. Respondent’s counsel concede “that the considerations relating to the liabilities of individuals in such cases apply to respondent;” and we know of no reason why (hecommon obligation to do justice, which is binding upon individuals, is not equally applicable to a county. Indeed, in many of the cases cited, the action was upheld against municipal corporations.
A further defense, of the statute of limitations, was interposed by respondent to five of the thirty-five causes of action. As to this defense, the lower court found against the respondent, and we think its finding in this particular was correct.
For the reasons given, we think that the appellant
Anders and Dunbar, JJ., concur.