Teasdale v. Stoller

Brace, P. J.

On the first of August, 1878, the defendants deposited in the Mastín Bank, of Kansas City, $3,757.56 to be transmitted to the Exchange Bank of Denver, Colorado, and placed to the credit there of óne E. P. Earnest.

On the third of August, 1878, the Mastín Bank failed, without having made such transfer, and made a general statutory assignment, for the benefit of its *649 creditors, to Kersey Coates, who accepted the trust. On the twenty-ninth of January, 1879, the demand of defendants, based upon such deposit, was presented to the assignee and allowed in the general class of demands against the assets assigned, and they received a dividend of twelve per cent thereon.

Afterward, on the twenty-fifth of March, 1880, the defendants instituted against said assignee a suit in equity in the Jackson circuit court to impress upon the assigned assets a trust in their favor for the balance of said demand amounting to the sum of $3,306.66, which resulted in a judgment and decree in their favor on the seventh of January, 1882. An appeal was granted the assignee from this judgment to the supreme court, but no bond was given; and afterward, on the twenty-third day of February, 1882, the assignee paid the amount of the face of said judgment to the defendants and took from them a receipt in full therefor, the defendants agreeing to knock off the interest and some costs, amounting in the aggregate to some twenty odd dollars, and at the April term, 1882, of the Jackson circuit court the assignee, in his term report, reported that the judgment in favor of defendants had been paid, showing the amount thereof, and that their general demand had been canceled, which report was approved by the court.

Afterward, in pursuance of an order of-said court, the undisposed of assets of the bank in the hands of the assignee were sold, and John J. Mastin, through his attorney, became the purchaser thereof, and the sale was approved by said court on the twenty-sixth of April, 1884.

- In the meantime, the appeal aforesaid, having in due course reached this court, and coming on for hearing, was prosecuted by Mastin’s attorneys and resulted, at the October term, 1885, of this court, in a reversal *650 of the judgment aforesaid of the Jackson circuit court in favor of the defendants against the assignee (Stoller v. Coates, 88 Mo. 514 ), the court ruling, however, in favor of the defendants on the merits, by holding the assets of the bank chargeable with the amount claimed as a preferred demand by reason of the trust, but that defendants had waived their special and preferential right by having their demand allowed as a debt against the general assets, and on this ground alone was the judgment reversed.

Afterward, Mastin brought suit against the defendants to recover back the amount paid as aforesaid by Coates in satisfaction of the judgment in the Jackson circuit court, setting out the reversal thereof by this court, and claiming as purchaser of the assets from the assignee a right of action therefor. He was defeated in this suit on the ground that even if there was an existing demand in favor of the assignee (which was not decided) he did not become the owner of it by his purchase. Mastin v. Stoller, 107 Mo. 317 , decided at the October term, 1891, of this court.

In the meantime, Coates having died, the plaintiff was on the twelfth day of November, 1887, duly appointed and qualified as his successor, and on the nineteenth day of December, 1887, thereafter, instituted this suit to recover from defendants the money so received by them from Coates on the twenty-third of February, 1882.

At the close of the evidence each party asked for a peremptory instruction for a verdict in his favor, which the court refused, and submitted the case to the jury upon instructions to the effect that they should find for the plaintiff unless they should find from the evidence “that the defendants accepted the sum of $3,306.66 in full payment and satisfaction, compromise, and settle *651 ment of the judgment, defendants had on January 7, 1882, recovered against Coates, assignee.”

The jury returned a verdict for the defendants and the plaintiff appeals, complaining of the instructions in that they predicate the right of defendant to a verdict upon the idea of the payment of the judgment by way of compromise, when, as they contend, there was no evidence of a compromise, and the assignee had no authority to compromise.

1. It is sometimes laid down as a general rule that money paid on a judgment that is afterward reversed may be recovered back in an action for money had and received. The great majority of the cases which are cited in support of this rule are cases in which payment of the judgment in whole or in part has been coerced by process thereon or otherwise.

These cases are of course not in conflict with the well settled principle of law that one who voluntarily pays money with full knowledge of all the facts, and without any fraud having been practiced upon him, can not recover it back because at the time of the payment he was ignorant of, or mistook, the law as to his legal liability.

This doctrine has been frequently applied to payments on judgments that have been afterward reversed, and in some of the eases it has been held that if the payment was voluntary no recovery could he had — making the case turn upon the single fact of voluntary payment. Of this class of cases, the recent case of Gould v. McFall, 118 Pa. St. 455, is an example.

There are other cases in which a right of recovery has been maintained although the judgment was voluntarily paid, of which class Scholey v. Halsey, 72 N. Y. 578 , is an example.

In this latter class of cases it will be found that upon the facts the action was maintained upon the ground *652 that although the payment was voluntary, yet the defendant having received the money of the plaintiff to which ex aequo et tono he was not entitled, the same was recoverable by writ of restitution or by action in assumpsit for money had and received.

But it is believed that no well considered case can be found in which it has been held, where money has been voluntarily paid on account or in satisfaction of a judgment afterward reversed, and the party to whom it was paid, in equity and good conscience was entitled to the same, that it could be recovered back. To so hold would be entirely repugnant to the very principle upon which the action is founded. As was said in an early case by Chase, C. J.: “The plaintiff can hot recover * * * unless the defendant’s retaining the money is contrary to equity and right. * * * The defendant may resort to any equitable or conscientious defense to repel the claim of the plaintiff, and may show the justice of his original claim.” Green v. Stone, 1 Har. & J. 408 .

The justice of the defendant’s original claim is not only shown by the conceded facts of this case, but the justice of the judgment set aside was established in the judgment of this court upon appeal therefrom. The defendants lost the benefit thereof, merely by “a slip” in their own procedure, and ought not to be compelled to refund the money which they rightfully received, and which in equity and good conscience they may retain. So that if the court committed error in the instruction complained of, in requiring the defendants to show that the payment, made in full satisfaction of the judgment, was also made in compromise of their claim, it was an error in plaintiff’s favor, of which he can not complain. The judgment is for the right party, and is affirmed.

All concur.