The facts are sufficiently stated in the opinion. The complaint in this action is for money had and received. The answer consists of denials only. To sustain the action under such pleadings, it was only necessary for the plaintiff to prove that defendant had received money belonging to him, and had failed to pay it over. The only defenses would *Page 313 be that defendant had not received the money or had paid it to the plaintiff.
The plaintiff proved his case when he proved that defendant as his agent had received ore from him for the purpose of selling it; that he had sold it, and had received on such sale $2,077 20, of which he had paid the plaintiff only $1,384 80. The defendant in his testimony admitted these facts to be true. These admissions were conclusive of the case as made by the pleadings.
But, waiving this, the defendant in his testimony claimed that the ore had been extracted from a mine belonging to the defendant's wife, of two-thirds of which the plaintiff had a lease, but not of the other third, and that consequently one-third of the net proceeds of the ore so extracted belonged to her by virtue of her ownership of the portion of the mine not leased.
Under this claim he asserted the right to retain the money in controversy. The defendant proved no authority from his wife to act for her in the matter, but aside from that, having received the ore from the plaintiff for the purpose of selling it, defendant would, in the absence of a showing that some one having a paramount title to the ore had made a claim upon him for it, be estopped from denying the plaintiff's title. (Bigelow, Estop. 430; 2 Herm. Estop., sec. 893.) No showing of this kind was made here.
Under the pleadings and proof there was no controverted question of fact for the jury to pass upon that would, if decided in the defendant's favor, have constituted any defense to the action. The court would have been justified in instructing them to find a verdict for the plaintiff; and consequently, whether right or wrong, the ruling concerning the argument of plaintiff's counsel, and the instructions given or refused, worked defendant no injury.
The judgment is affirmed.