Kreutz v. Livingston

Citations

• 15 Cal. 344

Syllabus

<p>An action for money had and received to the use of plaintiff lies whenever the defendant has in his hands money of plaintiff’s, which in equity and conscience he has no right to retain; and this, whether there be or not any contract or privity between the parties.</p> <p>Defendants were the holders of a mortgage, executed by the Yreka Water Co. and B. to them, to secure advances made, and to be made, by themselves and others, to said company. Plaintiff had made advances to the company, and was - one of the persons intended to be secured by the mortgage, though not a party thereto. Defendants assign the mortgage, receive the consideration therefor, but refuse to pay any portion of the money to plaintiff, who sues for money had and received to his use. Held, that the action lies, that defendants are in possession of money which in equity and conscience they are bound to pay over.</p> <p>Held, further, that defendants occupied toward plaintiff the position of trustees, and that the money sued for was received in that character; that it is of no consequence that the trust was created by a contract to which plaintiff was not a party, as he subsequently assented to it, and defendants cannot now repudiate it, and retain money which they would not otherwise have received.</p>