Ferguson v. Dunn's Administrator

28 Ind. 58

• Court: Indiana Supreme Court
• Decided: May 15, 1867
• Status: Published

Opinion

Gregory, J.

— Dunn’s administrator sued Mrs. Ferguson for money had and received of and from the intestate in his lifetime, at her special instance and request. The defendant answered by the general denial and set-off. Issues were taken. Trial by jury. Verdict for the plaintiff. Motion for a new trial overruled. The evidence is in the record.

M. Milford, for appellant. T. F. Davidson, for appellee.

Dunn, in his lifetime, remitted to Mrs. Ferguson a sum of money, with directions to loan it. The latter failed to loan the money, but used it herself. It is claimed that there is a failure in proof; that the money was not placed in the hands of the defendant at her special instance and request. This is immaterial.

It is further claimed that the appellant was a naked bailee, without compensation, and that no action can he maintained against her until after a demand and refusal. Yo demand was necessary. Spencer v. Morgan, 5 Ind. 146; Robinson v. Skipworth, 23 Ind. 311. The money was sent to Mrs. Ferguson by Dunn for a particular purpose, to which she refused to apply it, and converted it to her own use. The action for money had and received lies in such a case. The law will, and always does, raise an assumpsit from the misapplication of money received to the use of another. Dumond’s Admr. v. Carpenter, 3 John. 183.

The judgment is affirmed, with costs and five per cent, damages.