Steinbicker Bros. v. Kuhn

21 Ohio C.C. Dec. 285

• Court: Ohio Circuit Courts
• Decided: January 23, 1909
• Status: Published

Opinion

GIFFEN, J.

The cause of action stated in the petition is for money had and received by the defendants for the use of the plaintiff and arose in the following manner: The defendants as receivers were indebted to plaintiff for materials furnished and labor performed, and executed and delivered to plaintiff the following order:

“January 26, 1905.

“Mr. Leo. J. Oehlers, City.

“Dear Sir: Please pay to Steinbicker Bros, the sum of $318.94 due them for building tables at the Armory, out of the amount due me for services rendered, etc., as caterer Majestic Hotel Co. and agent of the receivers of said hotel.

“Oscar W. Kuhn,

“F. L.'Emmert,

“Receivers Majestic Cafe.”

Afterwards when a settlement was' had between Mr. Oehlers and the defendants as receivers the former said: “I must hold out some money for Steinbicker Bros., but I don’t know the.amount.” Thereupon Mr. Kuhn, in the presence of defendant Emmert, said:

“We are under bond, under $10,000 bond, we are personally responsible for that anyway because we signed that agreement and the money was paid to us. We have got to stay, or we will pay Mr. Stein-bicker the minute he presents his bill.”

Mr. Oehlers then paid to the defendant the entire amount due to tbem originally as receivers. The plaintiff received $100 from the defendants and sues for the balance.

The order thus given to plaintiff was an equitable assignment to-him of a part of a particular fund, which could not be revoked without, his consent. 21 Am. & Eng. Enc. Law 940.

The money received by the defendants was not, to the extent of the: order, due to them in their official capacity, nor, according to the statement made at the time by Mr. Kuhn, received in that capacity; but it was paid by the drawee to the defendants for the use of the plaintiff.. They had no right as receivers to accept the money without the consent of the payee of the outstanding order; nor had the drawer any right to-so pay it. Hence defendants became personally liable and the court erred in sustaining the motion of defendants, at the conclusion of plaintiff’s evidence, for an instructed verdict.

Judgment reversed and cause remanded for a new trial.

Swing and Smith, JJ., concur.