delivered the opinion of the court:
It is insisted on the part of appellant that assumpsit for money had and received will not lie in this case under the facts shown in the record, because there was no privity between Georgetta E. Gatton, the appellee, and the First National Bank of Springfield, Illinois, the appellant. The action of assumpsit was said by Lord Mansfield, in the case of Moses v. McFarland, 2 Burrow, 1012, to be an equitable action, in which the plaintiff could recover from the defendant so much money as he could show the defendant, ex cequo et dono, ought not to retain. This doctrine was recognized by this court in Taylor v. Taylor, 20 Ill. 650, as follows (p. 653): “It is the well recognized doctrine that the action for money had and received may be maintained whenever the defendant has obtained money of the plaintiff which, in equity and conscience, he has no right to retain. * * * When money has been thus received the law implies a promise to pay, notwithstanding there was no privity between the parties,”—citing Hall v. Marston, 17 Mass. 578, and 1 Chitty’s PL 387. In Belden v. Perkins, 78 Ill. 449, we said: “In an action of assumpsit for money had and received, the main inquiry is whether the defendant holds money which, ex cequo et dono, belongs to the plaintiff.” (Barnes v. Johnson, 84 Ill. 95; Wilson v. Turner, 164 id. 398; Laflin v. Howe, 112 id. 253; Lewis v. Harsh, 54 id. 383.) The evidence shows, in the case at bar, that the money was paid appellant on a mistake of facts; that the money belonged to appellee, and not to J. N. Gatton, appellee’s husband. This makes it inequitable that appellant should retain it and apply it upon an old indebtedness of the husband to appellant. Appellant was notified of the mistake, but refused to pay the money to appellee on demand made by her. Under such circumstances it is well settled by the foregoing authorities that the action of assumpsit for money had and received will lie. Allen v. Stenger, 74 Ill. 119; Newcomb v. Launtz, 89 id. 144.
We shall not enter upon a discussion of the questions of fact involved in this case, as those questions were settled adversely to the appellant by the judgment of the Appellate Court, and under the statute that judgment is conclusive. Among the facts settled may be mentioned the following: That the money in question belonged to plaintiff; that it was sent to defendant by mistake; that payment was demanded and refused before action was brought.
Appellant, however, claims that the first instruction given on the part of appellee is an abstract proposition of law, and tended to mislead the jury. While it is true the first part of the instruction announces a proposition of law, in the latter part of the instruction the law is applied to the facts as claimed by appellee. This instruction is sustained as to the proposition of law announced, in the case of Brownell v. Dixon, 37 Ill. 197, and we do not think it could have misled the jury
The second and third instructions given for plaintiff are criticised,but we seeno substantial objections to them.
It is also claimed that the court erred in refusing one of the appellant’s instructions. This instruction in substance directed the jury that if they found, from the evidence, that the commission merchant sent the draft to defendant with instructions to apply it to the credit of J. N. Gatton, and that Gatton was indebted to defendant, and defendant applied the draft as instructed, then defendant was not liable. It is manifest that this instruction was properly refused. If the commission merchant had no authority to transmit the draft to defendant, and it was sent by mistake, the defendant acquired no right or title to the draft or the money. The mere fact that defendant received the draft and applied it to the debt of J. N. Gatton gave it no right to hold the money from the person to whom the jury and Appellate Court found it rightfully belonged.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.