137 A. 776 | R.I. | 1927
This was an action of assumpsit on the common count for money had and received. At the close of plaintiff's evidence, the trial court directed a verdict for defendant.
Plaintiff is before this court on exception (1) to the granting of defendant's motion to direct a verdict for defendant; (2) to the denial of plaintiff's motion that a verdict be directed for plaintiff, and (3) to the ruling out of plaintiff's offer of certain evidence of a Mr. Israel, then a law student in the office of defendant's attorney.
The principal question raised is whether the plaintiff may bring assumpsit or whether he must resort to equity. Plaintiff was a third mortgage from one Terkel and wife. The debt to him was $6,000. The first and second mortgages were for $7,000 and $3,000 respectively. There were several mortgages subsequent to that of plaintiff. On foreclosure by defendant, who was the fifth or sixth mortgagee, the property was sold for $43,100. The amount of Terkel's mortgage indebtedness to defendant was $1,500. There is no evidence that defendant mortgagee's sale was pursuant to any agreement with prior mortgagees that a clear title should be conveyed and that defendant should pay said prior mortgages out of the proceeds of the sale. Inasmuch as the sale did not affect the rights of prior mortgagees, defendant, if there were no subsequent ones, was indebted to Terkel and wife for any surplus over and above the $1,500 due to defendant and the expenses of foreclosure. He owed no duty to prior incumbrances to pay them off.
Defendant was a brother of Mrs. Terkel and was assisting the Terkels in adjusting their financial difficulties. *298
Plaintiff offered but two witnesses, himself and Mr. Israel, now a member of the bar. Defendant, though present at the morning session of court, did not appear in the afternoon and could not be found. Plaintiff's evidence of defendant's acts and statements is not entirely satisfactory or clear but interpreting it most favorably to plaintiff, as we must do — Cannon v. Staples,
At the close of plaintiff's testimony defendant's attorney, bereft of his client, closed his case and moved for direction of a verdict in his favor on the ground of absence of proof of a definite indebtedness and because the action of assumpsit would not lie. The motion was granted on the latter ground, the court conceding proof of the debt but holding that plaintiff's remedy was in equity against defendant as trustee. *299
The question presented is whether an action of assumpsit for money had and received may be maintained to recover a definite amount of money admitted by defendant to be in his hands for the purpose of paying a specific debt from Terkel to plaintiff. The fact that the problem arose out of certain mortgage transactions is not important. The manner by which defendant came into possession of Terkel's money is not controlling. The fact that he had it and for a specific purpose is the vital matter.
Assumpsit for money had and received is an action contractual in form and equitable in its nature. 13 C.J. 244. Williams v.Smith,
If the evidence were entirely satisfactory we should be compelled to hold that plaintiff's motion that a verdict be directed in his favor should have been granted. Plaintiff's counsel, however, admitted in argument that which examination of the testimony abundantly demonstrates, that plaintiff's evidence is hazy and at times seems inconsistent with itself. In view of the fact that we have no evidence from defendant, we think the interests of justice will be better served by remitting the case for a new trial wherein the testimony may be more complete and definite. Plaintiff's motion for a directed verdict in his favor was properly denied.
While the determination which we have made of the principal questions raised is such that a decision upon the *301
third exception is not required, in view of the paucity of witnesses for the plaintiff and that he may again call Mr. Israel, we deem it proper to consider the third exception. The plaintiff offered to prove by Mr. Israel certain facts in connection with the transaction which were learned by Mr. Israel in defendant's attorney's office and that Israel "was not a law clerk of Mr. Greene but that he was just a law student." The court ruled as to this offer of testimony that "anything that took place or that was said in Mr. Greene's office on that transaction, Mr. Greene was privileged and this young man being part of the office is included." We do not think the authorities sustain so broad a ruling. So far as Israel was acting as agent or clerk for Mr. Greene in the transaction, the privilege attached to Mr. Greene should attach to Mr. Israel. Beyond that the privilege does not extend. Wigmore on Evidence, Vol. 5, (2d ed.) p. 39, § 2300; Barnes v. Harris, 7 Cush. 576; Andrews
v. Solomon, 1 Peters CC 356, at 359; Schubkagel v.Dierstein,
Plaintiff's first and third exceptions are sustained, his second is overruled.
The case is remitted to the Superior Court for a new trial.