Miller v. Travers

39 App. D.C. 340, 1912 U.S. App. LEXIS 2228

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 2, 1912
• Docket: No. 2421
• Status: Published

Opinion

Mr. Justice Van Orsdel

delivered the opinion of the Court:

The jury, by the verdict, resolved the issues of fact in favor of plaintiff. It found that the money was paid defendant upon his agreement to apply it to the liquidation of the trust. Counsel for defendant contend that, notwithstanding this, defendant was sued for money had and received, when, in fact, no part. of the money ever came into his personal possession, and therefore, upon the record evidence, as disclosed by the checks and the deposit, the court committed error in not instructing the jury to return a verdict for defendant, as requested by counsel.

It is elementary that in a suit for money had and received the money must be traced into the possession of the defendant, and while technically the money was paid by plaintiff to the corporation, we think the judgment should be affirmed. Plaintiff was not the debtor of the corporation. He owed it nothing. The money was paid to defendant, the president of the corporation, as the balance of the purchase price of the property, and upon the agreement of defendant that he would apply it to the only object to which it could be applied properly, either by him or the corporation,—the liquidation of the trust. It is not material that the checks were made payable to the corporation. Defendant was its president, secretary, and treasurer, with full power to secure the money on the checks and carry out his agreement. The corporation had no claim on the funds, and the money was as readily available to defendant as if the checks had been made payable to him. The means of securing the money to carry out his agreement came into his possession through the cheeks given him by plaintiff. That, instead of using it for that purpose, he turned it over to the corporation by depositing it to its credit in bank, is of no concern. His liability is the same. There was no error, and the judgment is affirmed, with costs. Affirmed.