McCreery v. Wells
Before: Foote
Synopsis
Money Had and Received — Investment with Plaintiff’s Consent— Violation of Trust.—Where the evidence shows without conflict that the defendant received authority from the plaintiff’s father to invest in a cheap land pool a certain sum which the father had of the son’s money, in regard to which pool the plaintiff’s father had been advised by a letter from the defendant, and that the plaintiff acquiesced in the investment made, the plaintiff cannot maintain an action for money had and received for the recovery of the money invested, but can only claim his proportionate share of the property purchased, although it was turned over by the defendant and another trustee to a corporation without plaintiff’s consent, and in violation of their trust.
Id.—Finding against Evidence — Receipt of Money — Harmless Error. — A finding that the defendant did not receive plaintiff’s money, though contrary to the evidence, is harmless, where it appears that if the fact had been found the other way, still plaintiff could not recover.
Foote, C. The plaintiff sues to recover five thousand dollars and interest from the defendant.
It is alleged in the complaint that the defendant, on the 4th of November, 1887, received five thousand dollars of the plaintiff’s money, to be invested for the latter in lands of the California Cheap Land Pool; that the defendant did invest the money in that pool, and in some lands or other investments, but not to the use and benefit of the plaintiff, hut in the name of the defendant and for himself; that the plaintiff has demanded his money thus invested in the name of the defendant, and has not received it or any part of it, or anything for and on account thereof.
For a second cause of action, it is alleged that the five thousand dollars came into the possession of the defendant for and on account of the plaintiff, and as his property, and that it still is held in trust for the plaintiff by the defendant; that the defendant has been called on by the plaintiff for an accounting for that sum of money, and that it be returned and paid to the plaintiff with interest from the 4th of November, 1887, to which demand the defendant has failed and refused to accede, or to pay anything to the plaintiff, and that the defendant still retains it for and on account of the plaintiff; that the latter is entitled to the return of the money and interest, and therefore judgment is demanded, etc.
The answer denies these allegations. The cause was tried by the court, and resulted in a judgment for the defendant. A motion for a new trial was made and denied; from the order made in that behalf this appeal is taken.
[487]The findings are assailed as being unsupported by the evidence; they read thus: —
“1. The defendant did not receive the sum of five thousand dollars, or any sum of the money or property of plaintiff at any time, for the purpose of investing the same in any lands, or for any purpose, or at all; but the said five thousand dollars was received by parties other than the defendant, for the purpose of investing the same in said lands.
“ 2. That defendant did not invest said money, or any money, of the plaintiff to his, the defendant’s, use or benefit, in any manner, or at all; that said sum of five thousand dollars was invested for the benefit of and on account of plaintiff in lands of the California Cheap Land Pool, and plaintiff derived the benefit and use of said investment of said five thousand dollars.
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