#### C. A. REMILLARD v. RALPH ROBINSON and Another.1

May 21, 1909.

Nos. 16,104—(113).

Findings — Evidence.

Evidence considered, and *held*not clearly against the findings oí the trial court.

*82Action begun in justice court to recover $68.66. From tbe decision of the justice court an appeal was taken to tbe district court for Todd county. In that court tbe case was tried before Baxter, J., wbo made findings and as conclusion of law found in favor of defendants. From an order denying plaintiff’s motion for a new trial, be appealed.

Affirmed.

*G. F. Gashman,*for appellant.

*F. G. McGivem*and *M. J. Daly,*for respondents.

1

 Reported in 121 N. W. 217.

Brown, J.

Tbis action, according to tbe allegations of tbe complaint, is one for money bad and received. It was tried below without a jury, resulting in findings to tbe effect that tbe allegations of tbe complaint were not true, upon wbicb judgment was ordered for defendants. Plaintiff appealed from an order denying a motion for a new trial.

Tbe sole question presented is whether tbe findings are sustained by tbe evidence. It appears that one Keppel was in tbe employ of tbe Northern Pacific Kailway Company, and bad become in debt to various persons, wbo were pressing their claims for payment, threatening garnishment proceedings to enforce their demands. Keppel applied to defendants for relief, and an arrangement was entered into by wbicb defendants signed a promissory note with him, and thereby obtained funds with wbicb to meet and satisfy tbe creditors, but upon tbe further agreement of Keppel to transfer bis monthly wages to defendants, to be by them applied, first, $50 toward Keppel’s family and household expenses, and, second, tbe balance upon tbe note so executed, until tbe same was paid in full. Tbis arrangement was thereafter carried out, and tbe monthly wages of Keppel paid by tbe railway company to defendants, and they applied them in accordance with tbe agreement. They received Keppel’s wages for tbe months of September and October, and after paying tbe agreed amount of bis household expenses, $50 per month, there remained in their bands the sum of $68.66, or more, which they claim was applied .upon tbe promissory note. Tbis action was brought to recover that amount, and plaintiff now claims that *83Keppel assigned it to him by an oral agreement prior to the commencement of this action.

Brushing aside all technical objections, and conceding, without so deciding, that plaintiff may recover on the theory that the money received by defendants belonged to Keppel, and that he duly assigned it to plaintiff, notwithstanding his complaint seeks a recovery on the basis of money had and received, the evidence is insufficient to justify a judgment in his favor on either theory.. If the money in question was received by defendants pursuant to the agreement made when they signed the promissory note, and for the purposes of that arrangement, it belonged to them, and Keppel had no right to assign it to plaintiff, or to direct its application upon other obligations. That it was so received is clear from the evidence. If the promissory note had, prior to the receipt of this particular money, been paid, plaintiff should have shown the fact. However, it appears not to have been paid, for the holder of the note testified that there was at this date the sum of $110 still due thereon. It follows, therefore, that whether plaintiff’s action be treated as one for money had and received, or upon an alleged assignment of the money, the evidence is insufficient to justify a recovery by him, and the court properly ordered judgment for defendants.

Order affirmed.