¶1(concurring). — I am unable to find in this case grounds to support the ruling of the trial court in peremptorily instructing the jury to return a verdict for plaintiff, and thereon entering judgment.
¶2The action is for recovery of money had and received. In answer to the complaint, defendants allege ownership of the chose in action upon Avliich they collected the money in controversy, and allege in detail all the facts concerning the transaction AA'hereby they claim to have purchased from McLoughlin said chose, and transmitted to him payment therefor in fulfillment of their part of said transaction, whereby they claim *456to have become the owners and legal holders of said chose; that plaintiff had knowledge of all the details of said transaction when he paid the amount of said debt to McLoughlin, after having paid the same to defendant; and that plaintiff made such payment to McLoughlin, conniving and conspiring with him to defraud defendants. This answer was entertained as a sufficient defense.
¶3Plaintiffs by reply, denied the allegations of the answer “ on information and belief,” so far as such averments related to the transaction between McLoughlin and Joy. Now, upon the trial, defendants introduced proof supporting the allegations of their answer, which proof was not rebutted, McLoughlin not being present as a party or witness to dispute the alleged transaction whereby Joy claims to have purchased said demand; and plaintiff Wetzstein made no attempt to rebut the testimony offered by defendants in support of the allegations of their answer. Notwithstanding this state of the case, the court, on plaintiffs’ motion, instructed the jury to return a verdict against the defendants for the recovery demanded in the complaint.
¶4It is plain that, if the answer alleges a defense (and this is not disputed in any stage of the case, either in argument or by proceeding to strike out the answer or any part thereof), then the ruling of the court practically taking the case from the jury, and summarily determining the issue in favor of plaintiffs, cannot be sustained.
¶5In support of the court’s ruling, respondents’ counsel argue' that it was justified, because the testimony offered in support of defendants’ answer showed that defendants were not in actual possession of the note and mortgage when payment thereof was collected from Wetzstein. There is no averment in the answer that defendants were actually in possession of said chose when the money was collected. The allegations in that regard were a recital of the facts constituting said transaction between McLoughlin and defendant Joy, whereby, as defendants allege, Hattie M. Joy “ became the owner and legal holder of said note and mortgage”; and issue was joined on all these averments by plaintiffs’ replication; and when the trial was had, defendants supported their averments by proof. But *457plaintiffs introduced no proof to contradict the showing that defendants had purchased said demand as set forth in the answer and supported by proof, but, apparently conceding those facts, respondents’ counsel argue that, inasmuch as said note and mortgage had not been actually assigned and delivered, Joy could not have enforced specific assignment or delivery thereof to him; that his only remedy was an action for damages against McLoughlin for breach of the contract of sale. Plaintiffs’ counsel thus admit that McLoughlin had gone so far in the transaction as to commit himself to damage for failure to deliver the chose in question. They practically admit that McLoughlin had sold said demand to Joy, and that Wetzstein had full knowledge of said sale when he interposed to intercept the transaction, and thrust in his payment a second time, as the evidence shows without dispute, relying upon recovery of his first payment from defendants merely, because plaintiff had succeeded in overtaking said note and mortgage outside of defendants’ possession. Whether Joy would have obtained possession of the note and mortgage if plaintiff had not taken it up and canceled it, thus destroying the possibility of Joy getting possession, depends possibly upon events as much as upon abstract propositions of law. But, conceding respondents’ position that Joy only had an action for damages for McLoughlin’s failure to deliver, that action might have brought forth delivery if plaintiff had not wrongfully interposed and made delivery impossible; because McLoughlin, to escape or mitigate damages, might have delivered the thing in question, which, as the case stands, it is admitted Joy had purchased from McLoughlin.
¶6The case is in no position before this court, or the court below, to admit of close legal deductions as to what shape proceedings between Joy and McLoughlin might have taken, or what result might have been attained. It suffices for this decision that plaintiff did not contradict the facts set up in defense, to the effect that by purchase defendants became the legal owners of said demand, and that plaintiff knew that fact when he made payment to McLoughlin. Notwithstanding these conditions, plaintiff, in effect, reached forth, and took the controversy into his own hands, aud, not waiting at all to be *458drawn into it, made payment to McLoughlin over Joy’s claim of ownership, and brought this action to recover the first payment from Joy. And, when lie was met in defense by the allegation of tlie facts constituting the transaction whereby Joy claims to have purchased said demand, he denied those facts “on information and belief”; thus taking upon himself the burden of showing that said transaction had not occurred between Joy and McLoughlin. In this plaintiff signally failed, for Joy supported his answer by proof, and no proof whatever was offered in rebuttal. The mere fact that defendant had not possession of the thing is not sufficient to support plaihtiff’s action, for one may have the right to a thing or chose and not be in actual possession thereof. Having thus admitted the purchase by Joy, and that plaintiff had actual knowledge of that transaction when he made payment to McLoughlin, plaintiff cannot expect to be sustained in thus attempting to take away from defendants the fruit of their purchase. A strict application of legal principles to the conditions shown in this case would have nonsuited plaintiff, and allowed him no recovery. But on the whole showing it is just that his recovery be limited to the amount paid by Joy to McLoughlin, which, by plaintiff’s interference, he got returned to Joy, and his own payment accepted instead. For these reasons I concur.