Avery v. Abraham

9 Citing cases

  1. Nicholson v. Stitt

    2022 OK 35 (Okla. 2022)   Cited 3 times

    It is a well-settled principle of law that, if a party through mistake receives money to which he is not justly and legally entitled, and which he should not in good conscience retain, that the law regards him as a receiver and holder of the money for the use of the lawful owner, and raises an implied promise on his part to pay the same, and, on his failure to do so, the owner may maintain an action against him therefor. Avery v. Abraham, 1926 OK 114, ¶ 6, 243 P. 728, 728-29. Plaintiffs have not pleaded facts sufficient to support a cause of action for money had and received.

  2. Accelerated, LLC v. LMI II, LLC

    No. 23-6062 (10th Cir. Mar. 28, 2024)

    See Nicholson, 508 P.3d at 447 ("'It is a well-settled principle of law that, if a party through mistake receives money to which he is not justly and legally entitled, and which he should not in good conscience retain, that the law regards him as a receiver and holder of the money for the use of the lawful owner, and raises an implied promise on his part to pay the same, and, on his failure to do so, the owner may maintain an action against him therefor.'" (quoting Avery v. Abraham, 243 P. 728, 728-29 (Okla. 1926) (emphasis added)). The evidence shows that the requirements for payment under Coverage R were not met, and "AIG would not have paid the Temporary Engines Claim if AIG had been made aware at the time (a) that the FOD damage to the Aircraft's permanent engines did not require removal and repair; and (b) that the installation of temporary engines on the Aircraft was therefore unnecessary," Aplt. App. Vol. II at 111.

  3. Ryan v. Spaniol

    193 F.2d 551 (10th Cir. 1951)   Cited 11 times

    that a person should not be unjustly enriched at the expense of another. It is a well recognized rule in equity jurisprudence that where one of two innocent persons must suffer as the result of an action of a third person, as between the two innocent persons the one who by his conduct and misplaced confidence created the circumstances which enabled the third person to do the wrong, must suffer the loss. Stone v. White, 301 U.S. 532, 534, 57 S. Ct. 851, 81 L.Ed. 1265; Atlantic Coast Line R. Co. v. Florida, 295 U.S. 301, 309, 55 S.Ct. 713, 79 L.Ed. 1451; United States v. Jefferson Electric Mfg. Co., 291 U.S. 386, 402, 54 S.Ct. 443, 78 L.Ed. 859; Myers v. Hurley Motor Co., 273 U.S. 18, 24, 47 S.Ct. 277, 71 L.Ed. 515; Cary v. Curtis, 3 How. 236, 246, 44 U.S. 236, 246, 11 L.Ed. 576; Rishel v. Pacific Mut. Life Ins. Co. of California, 10 Cir., 78 F.2d 881, 883, 131 A.L.R. 414; Howbert v. Norris, 10 Cir., 72 F.2d 753, 755; Epperson v. First State Bank of Ringling, 168 Okla. 171, 32 P.2d 283; Avery v. Abraham, 114 Okla. 101, 103, 243 P. 728; Taylor v. Walker, 112 Okla. 75, 239 P. 601; Cleveland v. Mascho, 95 Okla. 22, 222 P. 1008. Rabon v. Putnam, 10 Cir., 164 F.2d 80; United States v. First National Bank of Prague, Okla., 10 Cir., 124 F.2d 484; Petroleum Royalties Co. v. Hartford Accident Indemnity Co., 10 Cir., 106 F.2d 440, 124 A.L.R. 1403, certiorari denied 308 U.S. 626, 60 S.Ct. 384, 84 L.Ed. 522; Edmonson v. Waterston, 342 Mo. 1082, 119 S.W.2d 318; Al's Auto Sales v. Moskowitz, 203 Okla. 611, 224 P.2d 588, 591; Adkisson v. Waitman, 202 Okla. 309, 213 P.2d 465; Morris v. Packard Dallas Co., 184 Okla. 277, 86 P.2d 779; Chicago Great Western Railroad Co. v. Lowry, 119 Kan. 336, 239 P. 758.

  4. Occidental Life Ins. Co. v. Minton

    73 P.2d 440 (Okla. 1937)   Cited 6 times

    An action for money had and received is an action at law, but is governed by equitable principles, and may be maintained whenever one has money in his hands belonging to another, which, in equity and good conscience, he ought to pay over to that other. 41 C. J. 28, 29; Avery v. Abraham (1926) 114 Okla. 101, 243 P. 728. Thus such action will lie to recover money that has been paid for a consideration which has wholly failed, unless the failure of consideration is attributable to some fault on the part of the plaintiff herself. 41 C. J. 35; Kokomo Oil Co. v. Bell (1921) 81 Okla. 247, 198 P. 326. Inasmuch as plaintiff paid the premiums 'and by the former judgment herein (Minton v. Minton [1934] 170 Okla. 274, 30 P. [2d] 538) was precluded from receiving any of the Insurance money, it is argued that the consideration as to her wholly failed and she is entitled to the return of her money.

  5. Davis v. Holland

    67 P.2d 449 (Okla. 1937)   Cited 4 times

    In case tried to court, where demurrer to plaintiff's evidence is sustained, and evidence shows plaintiff wholly failed to prove case, judgment should be affirmed. Avery v. Abraham, 114 Okla. 101, 243 P. 728. We have carefully examined the brief of plaintiff, appellant herein, and conclude that the authorities cited therein are not applicable to the facts and issues involved in this appeal.

  6. Epperson v. First State Bank

    32 P.2d 283 (Okla. 1934)   Cited 3 times

    " The rule above announced has been followed consistently by this court in the following cases: Helm v. Mickleson, 66 Okla. 290, 170 P. 704; Deming Inv. Co. v. Britton, 72 Okla. 145, 179 P. 468: Avery v. Abraham. 114 Okla. 101, 243 P. 728. In the case of Avery v. Abraham, supra, adopting the rule announced in Elliott on Contracts, sec. 1372, we said:

  7. Haubert v. Navajo Refining Co.

    129 Okla. 195 (Okla. 1928)   Cited 7 times

    "An action will lie to recover a sum certain whenever one has the money of another which he in equity and good conscience had no right to retain." Avery v. Abraham, 114 Okla. 101, 243 P. 728; Taylor v. Walker, 112 Okla. 75, 239 P. 601. "Money paid for electricity as result of overreading the meter was recoverable as paid under mistake of fact, whether meter was read by consumer's or defendant's agent."

  8. Duncan v. Anderson

    120 Okla. 194 (Okla. 1926)   Cited 10 times

    Helm v. Mickleson, 66 Okla. 290, 170 P. 704. In Avery v. Abraham, 114 Okla. 101, 243 P. 728, the principle is well settled that, if a party through mistake receives money to which he is not justly and legally entitled, and which he should not in good conscience retain, the law regards him as a receiver and holder of the money for the use of the lawful owner, and raises an implied promise on his part to pay the same. In such case, an action in assumpsit as for money had and received will lie. Thurlwell et al. v. Rabbit et al., 110 Okla. 285, 235 P. 923.

  9. Casselman v. State

    54 P.2d 678 (Okla. Crim. App. 1936)   Cited 10 times

    "It is not error to admit in evidence a digest or statement showing the financial condition and transactions of a company covering a long period of time, prepared by an expert accountant, who qualifies as such expert and testifies that the statement correctly reflects the condition of the company as shown by the books, when the books are all in court and opposing counsel have full opportunity to cross-examine the witness as to the correctness of the statements, and the books are voluminous and such as would require an explanation by an expert accountant." See, also, Hooven v. First National Bank in Ardmore, 134 Okla. 217, 273 P. 257, 66 A. L. R. 1203; Bell v. Tackett, 134 Okla. 164, 272 P. 461; Avery v. Abraham, 114 Okla. 101, 243 P. 728; Louisville Bridge Co. v. Louisville N. R. Co., 116 Ky. 258, 75 S.W. 285; Elmer Co. v. Kemp (C. C. A.) 67 F.2d 948; State ex rel. v. Maryland Cas. Co., 334 Mo. 259, 66 S.W.2d 537; Thompson v. Walker, 253 Mich. 126, 234 N.W. 144; Watson v. Gardner, 183 Minn. 233, 236 N.W. 213; Fox v. Baltimore O. R. Co., 34 W. Va. 466, 12 S.E. 757; Stolz v. Scott, 28 Idaho, 417, 154 P. 982. The court also admitted in evidence the letter of transmittal of the accountant in which his conclusions were embodied, which is inadmissible under the rule announced by this court in Otey v. State, 39 Okla. Cr. 61, 263 P. 155.