#### The Glendale Investment Association Appellant, vs. The Harvey Land Company, Respondent.

*April 23*

May *13, 1902.*

*Money had, and, received,: Corporations: Officers: Wrongful deposit of moneys of another.*>

1. An action for money Lad and received can be maintained only when the defendant has received money which in equity and good conscience he ought to pay to the plaintiff.

2. The secretary and treasurer of several corporations, including the plaintiff, the defendant, and the H. B. & L. association, having a check for $3,879.72 belonging to plaintiff, indorsed it in plaintiff’s name and' deposited it in a bank to the credit of defendant. Shortly afterwards he gave to the H. B. & L. association, on account of his individual indebtedness thereto, checks to the amount of $3,825, signed in defendant’s name by himself as secretary, and such checks were paid. At the times mentioned defendant had on deposit, of other funds, only $22.39. No entry of the deposit or of the checks was made on defendant’s books, and the transaction appeared only in its bank account. Defendant had no account with plaintiff, was not indebted to the secretary or to the H. B. & L. association, and did not learn of the deposit and checks until nearly a year after the transaction. *Held,*that plaintiff could recover from defendant, in an action for money had and received, o:.ly the $54.72 which remained of said deposit after payment of the checks mentioned.

Appeal from a judgment of the superior court of Milwaukee county: J. O. Ludwig, Judge.

*Reversed.*

This action was commenced April 25, 1899, to recover $3,879.72, money had and received. The complaint alleges, in effect, the corporate character of the plaintiff and defendant, and that January 19, 1898, the defendant had and received of the plaintiff, to- the use of the plaintiff, the sum mentioned, which the plaintiff, on or about that date, loaned and advanced to the defendant; that the defendant was indebted to the plaintiff for the money so received by it, with interest from January 19, 1898; and that April 11, 1899, *409the plaintiff demanded payment thereof from the defendant, but that the same has not been paid nor any part thereof.

The answer, in addition to admissions and denials, alleges, in effect, that January 19, 1898, the plaintiff, the defendant, the Mutual Building & Savings Association, and the Home Building & Loan Association were each and all Wisconsin corporations, doing business in Milwaukee, and that one John H. Myers was the secretary and treasurer of each and every of said corporations; that- January 10, 1898, Myers, as secretary of the Mutual Building & Savings Association, drew and signed the check of that association, and caused the same to be signed by its president, on the National Exchange Bank, to the order of the plaintiff, for $3,879.72; that Myers thereupon took the cheek so signed, and January 18, 1898, indorsed thereon in blank the name of the plaintiff, 'as follows: *“The, Glendale Investment Association,*by J. H. Myers, Secretary;” and thereafter,, and without any knowledge of or authority from the defendant, deposited said check in the Wisconsin National Bank, in the defendant’s bank account therein and to its credit, and thereupon, and immediately thereafter, Myers, to make good personal debts owing by himself to the Home Building & Loan Association, and without any knowledge of or authority'from the defendant, drew four cheeks of the defendant, as secretary of the defendant, on the Wisconsin National Bank, against such deposit, in favor of the Home Building & Loan Association, for the following amounts, respectively, $475, $1,800, $650, and $900, making in all $3,825, — that is to say, $54.72 less than the amount of such deposit; thát each and all of such four checks were paid by the Wisconsin National Bank out of said deposit; that at none of said times did the defendant have on deposit in the Wisconsin National Bank more than $22.39; that the defendant was not in any way indebted to the Home Building & Loan Association, nor to Myers, and had no account whatever with the plaintiff; that *410tbe defendant bad no knowledge of sncb deposit until long after tbe entire transaction bad been completed; tbat tbe defendant never derived any benefit from sncb deposit, except tbat sncb balance of $54.72 appeared by tbe defendant’s bank book to bave remained to tbe credit of tbe defendant in tbe Wisconsin National Bank; tbat tbe transaction was in no sense tbe act of tbe defendant; tbat Myers converted to bis own use tbe check of $3,879.72 of tbe Mutual Building & Savings Association to tbe order of tbe plaintiff on tbe National Exchange Bank, and, without tbe knowledge or consent of tbe defendant, passed the amount thereof through *the*bank account of tbe defendant for tbe sole purpose of disguising tbe transaction, and enabling him to make good certain of bis debt or defalcation to' tbe Home Building *&*Loan Association; and tbat in none of such transactions was- Myers acting within tbe scope of bis employment as secretary or treasurer of tbe defendant, but was acting as an individual, for tbe sole purpose of converting tbe money to' bis own use.

At tbe close of tbe trial tbe court refused to direct a verdict in favor of tbe plaintiff or submit tbe case to tbe jury, but directed a verdict in favor of tbe defendant. From tbe judgment entered upon tbe verdict so directed, dismissing tbe complaint upon tbe merits, and for $48.87 costs and disbursements, as taxed, tbe plaintiff appeals.

For tbe appellant there was a brief by *Timlin., Clichsman & Conway,*and oral argument by *W. H. Timlin.*

To tbe point tbat tbe loss in this case ought to fall upon tbe defendant, they cited *White v. Morris*(Md.) 30 Atl. 642; *First Nat. Banle v. Dunbar,*118 Ill. 625, 9 N. E. 186; *Thomas v. Arthurs,*8 Kan. App. 126, 54 Pac. 694; *Harbach v. Colvin,*73 Iowa, 638, 35 N. W. 663; *Pepper v. Cairns,*133 Pa. St. 114, 7 L. R. A. 750; *Strong v. Ten Cent T. B. & L.*Asso. 189 Pa. St. 186, 42 Atl. 46; *Osborn v. Baird,*45 Wis. 189; *Hare v. Bailey,*73 Minn. 409, 76 N. W. 213; *St. Joe & M.**411*F. M. Go. v. First Nat. Bank,*24 Colo. 537, 50 Pao. 1055, 1058.

Eor tbe respondent there was a brief by Quarles, *Spence &*Quarles, and oral argument by *Gliarles Quarles.*

As to when an action for money bad and received may be maintained, see *Travelers’ Ins. Go. v. Mayor of*Johnson, 99 Red-. 663; *Moses v.*MacFerlan, 2 Rurr. 1005; *Fishkill S. Inst, v. Nat.*Bank, 80 N. Y. 162; *Atlantic G. Mills v. Indian 0.*Mills, 147 Mass. 268; Keener, Quasi-Contracts, 160; *Holden v. N. Y. & E.*Bank, 72 N. Y. 286, 287.

Oassoday, O. J.

It is undisputed that the check of $3,879.72, given by the Mutual Building & Savings Association, and payable to' the order of the plaintiff, on the National Exchange Bank, January 10, 1898, was a genuine check, given on account of an existing indebtedness, and was the property of the plaintiff when received by Myers, and was paid in due course by the National Exchange Bank. It is also undisputed that it continued to' be the property of the plaintiff up to January 18, 1898, when Myers, as secretary of the plaintiff, indorsed it in the plaintiff’s name, and deposited the same in the Wisconsin National Bank to the credit of the defendant. It is also conceded that, during the balance of that month of January, Myers gave to the Home Building & Loan Association, on account of his own indebtedness, the four checks, each on the Wisconsin National Bank, mentioned in the answer, amounting in the aggregate to $3,825, and each signed in the name of the defendant by himself as secretary, and that such checks were all paid on or before February 1, 1898. It is conceded that at the time of such deposit the defendant had to its credit in the Wisconsin National Bank only $22.39, and that the amount of such deposit was not increased during the month of January, 1898. It is undisputed that Myers made no entry in the cash book, nor any other book of the defendant, of such de*412posit of $3,879.72, or any of tbe four checks mentioned, and that such deposit and such checks, had they related to a genuine transaction, should all have appeared on the defendant’s cash book. They did appear in the defendant’s bank account, but nowhere else. The defendant was not indebted to the Home Building & Loan Association in any way, nor to Myers, and had no account with the plaintiff. The defendant never learned of such deposit or checks until nearly a year after the transaction. Manifestly, Myers converted the $3,879.72 check to his own use, without any authority from the plaintiff, and then, to conceal such conversion and malee the same effectual, he made the deposit and gave the four checks without the knowledge or consent or any authority from the defendant. In view of such undisputed facts, can the plaintiff recover the $3,825, — the aggregate amount which Myers so checked out of the bank on account of such deposit?

There is no pretense that there can be a recovery, except on the theory that the money was had and received by the defendant. There is no ground for claiming that the defendant had or received the money, except that Myers was the secretary and treasurer of the defendant as well as of the plaintiff, and that he deposited the same to the credit of the •defendant, and then immediately checked out the amount mentioned, in payment of his own individual indebtedness to the Home Building & Loan Association. In other words, the defendant never in fact received nor had the benefit of any portion of the $3,825, and had no knowledge that the same had been so deposited and checked out until nearly a year after the transaction. As stated by Chief Justice Dixorr, many years *ago,*an action for “money had and received, though legal in form, is in its nature an equitable remedy, and lies only where the defendant has received money which, *ex aequo et bono,*he ought to’ refund.” *Fay v. Lovejoy,*20 Wis. 406. “Such an action can only be maintained in a case *413where the defendant has received money which in equity and good conscience he ought to pay to the plaintiff.” *Blewett v.*McRae, 88 Wis. 280, 285, 60 N. W. 258. So, in a recent case, where the plaintiff in this case was defendant, Mr. Justice BakdeeN, speaking for this court, said: “The purpose of such an. action is not to recover damages, but to- make the party disgorge, and the recovery must necessarily be limited by the party’s enrichment from the alleged transaction.” *Limited I. Asso. v. Glendale I. Asso.*99 Wis. 59, 74 N. W. 633. See *Huganir v.*Cotter, 102 Wis. 323, 327, 78 N. W. 423; *Johnston v. Charles Abresch Co.*109 Wis. 184, 185, 85 N. W. 348. Eor cases in other courts, see brief of counsel.

In the light of the admitted facts and these adjudications and many others which might be cited, can it be fairly said that the defendant ought, in equity and good conscience, to pay to the plaintiff the $3,825 which the plaintiff’s secretary wrongfully converted to his own use in the manner indicated ? We think not. The mere fact that Myers, as a subterfuge, wrongfully, and without authority, availed himself of the use of his office as secretary of the defendant to make such deposit and immediately check out the money for his own private use, did not, in equity and good conscience, make the defendant a recipient of that money. The transaction is essentially the same as if Myers had drawn the money on the $3,879.72 check, and then paid over to- the Home Building & Loan Associatien for his own personal benefit $3,825, and deposited the balance of $54.72 to the credit of the defendant in the Wisconsin National Bank. The plaintiff contends that because the $54.72 remained to the credit of the defendant, and is still available to its use, the defendant thereby ratified the whole conduct of Myers in the transaction. It is obvious from what has been said that the defendant cannot be held liable, in this action for money had and received, for such money as it never did have or receive.

But, as to the $54.72 so to- the credit of the defendant, we *414perceive no good reason wiry tbe plaintiff cannot recover upon tbe principle of tbe cases cited. It is undisputed that tbe money was and is tbe property of tbe plaintiff. Tbe defendant bad possession of it in its bank account wben tbe plaintiff demanded payment thereof, and has continued to retain sucb possession. Tbe defendant bas parted with nothing for it, and bas no equitable right to it. . In tbe language of Lord ElleNborough, C. J.: “An action for money bad and received is maintainable wherever tbe money of one man bas, without consideration, got into tbe pocket of another.” *Hudson v. Robinson,*4 Maule & S. 478; *Wells v. Am. Exp. Co.*49 Wis. 230, 5 N. W. 333; *Jackson v.*Jacksonport, 56 Wis. 313, 14 N. W. 296. Of course, this language does not apply to a voluntary gift, but only to a case where tbe defendant bas received money which, in equity and good conscience, be ought to pay to tbe plaintiff. It follows that the plaintiff is entitled to recover tbe $54.72, with interest from the time of sucb demand.

*By the Oourt.-*— -The judgment of tbe superior court of Milwaukee county is reversed, and tbe cause is remanded for a new trial.