
88 S.E.2d 825 (1955)
242 N.C. 506
Frances McCormick ALLGOOD
v.
The WILMINGTON SAVINGS & TRUST COMPANY, Trustee.
No. 595.
Supreme Court of North Carolina.
August 26, 1955.
*828 Joe M. Cox and Phillips & McCoy, Laurinburg, for plaintiff.
Varser, McIntyre & Henry, Lumberton, for defendant.
*829 JOHNSON, Justice.
The first question posed by this appeal is whether the plaintiff made out a prima facie case of money had and received.
An action for money had and received may be maintained as a general rule "whenever the defendant has money in his hands which belongs to the plaintiff, and which in equity and good conscience he ought to pay to the plaintiff. * * * The plaintiff is entitled to recover when it appears that the money in question belonged to the plaintiff and was secured by the defendant without the consent of the plaintiff, or if with his consent, without consideration." Wilson v. Lee, 211 N.C. 434, 436, 190 S.E. 742, 743. Recovery is allowed upon the equitable principle that a person should not be permitted to enrich himself unjustly at the expense of another. Therefore, the crucial question in an action of this kind is, to which party does the money, in equity and good conscience, belong? The right of recovery does not presuppose a wrong by the person who received the money, and the presence of actual fraud is not essential to the right of recovery. The test is not whether the defendant acquired the money honestly and in good faith, but rather, has he the right to retain it. In short, "the gist of this kind of action is, that the defendant, upon the cirumstances of the case, is obliged by the test of natural justice and equity to refund the money." Moses v. MacFerlan, 2 Burrow, 1005, 97 Eng. Reprints, 676. See also Hicks v. Critcher, 61 N.C. 353; Bahnsen v. Clemmons, 79 N.C. 556; Wilson v. Lee, supra; Sparrow v. Morrell & Co., 215 N.C. 452, 2 S.E.2d 365; Harrington v. Lowrie, 215 N.C. 706, 2 S.E.2d 872; 4 Am.Jur., Assumpsit, Sec. 4; 58 C.J.S., Money Received, § 4; 17 C.J.S., Contracts, § 6.
The plaintiff insists that her evidence and the pretrial conference stipulations support the allegations of her complaint and make out a prima facie case of money had and received. She relies on the evidence and stipulations tending to show these facts: (1) that at the time of the death of her husband, Lawrence Wheeler Allgood, the life insurance policy naming her as sole beneficiary was in force; (2) that proof of death was duly filed; (3) that the Insurance Company issued its check in the amount of $12,656 in payment of the full death benefits, the check being made payable to the order of the plaintiff and the defendant; (4) that the check, endorsed by the plaintiff and the defendant, was deposited for collection in the defendant Bank and was paid in due course; (5) that the defendant Bank paid the plaintiff only half of the insurance moneys, and retained the other half in its trust department for the credit of the pension trust system, and has refused to pay same over to the plaintiff after due demand.
On the other hand, the defendant insists that the plaintiff's evidence and the pretrial stipulations establish conclusively as a matter of law that the plaintiff was not entitled to any of the proceeds of the insurance policy because of failure on the part of the insured to comply with the rules and regulations under which the pension system was operated and under which the insurance policy was procured. In support of its contention, the defendant relies upon the provision which provides that when any member of the pension system voluntarily leaves the employ of the Mill he thereupon ceases to be a member of the system and "shall receive no benefits from the pension fund nor from any annuity or other contract purchased for his benefit," and that the equity in any such contract shall thereupon inure to the benefit of the pension fund.
It is here noted that the insured voluntarily left the employ of the Mill several months before his death. Therefore, it must be conceded that the Pension Board had a right to cancel the insurance policy when he left the employ of the Mill and to collect for the benefit of the pension fund the cash surrender value of the policy. This the Pension Board or Trustee could have done at any time before the death of the insured. However, as it turned out, the policy was not so terminated, but was in *830 full force and effect under an extended term provision when Allgood died in February, 1950. And it is significant that the rules and regulations of the pension trust system nowhere provide for any change of beneficiary upon the termination of the insured's employment, nor do the rules and regulations purport to make any provision, apart from those fixed in the policy, for the payment of death benefits where, as here, the policy is left in force and the death benefits mature and become payable before the normal lapse of the policy. Indeed, any provision in the rules and regulations for diverting death benefits from the policy beneficiary to the pension trust fund in a situation like the one here presented would have been of doubtful validity. This is so for the reason that the pension trust had no insurable interest in the life of a member of the pension system, and any regulation purporting to provide for the payment of insurance death benefits into the pension fund would have been subject to challenge as a wagering contract contrary to public policy." * * * an insurable interest exists where there is reasonable ground, founded on the relations of the parties to each other, either pecuniary or contractual or by blood or affinity, to expect some benefit or advantage from the continuance of the life of insured; and unless there is a reasonable pecuniary interest, or a close tie by blood or marriage, justifying the expectation of benefit or advantage from the continued life of insured, a policy of insurance taken out on the life of another is condemned as one of wager for the purpose of speculating on the hazard of a life in which the beneficiary has no insurable interest." 44 C.J.S., Insurance, § 203 a, pp. 903, 904. See also Burbage v. Windley, 108 N.C. 357, 12 S.E. 839, 12 L.R.A. 409; Trinity College v. Travelers' Ins. Co., 113 N.C. 244, 18 S.E. 175, 22 L.R.A. 291; Hinton v. Mutual Reserve Fund Life Ins. Co., 135 N.C. 314, 47 S.E. 474, 65 L.R.A. 161; Slade v. Life & Casualty Ins. Co., 202 N.C. 315, 162 S.E. 734; Crump v. Southern-Dixie Life Ins. Co., 204 N.C. 439, 168 S.E. 514; Wharton v. Home Sec. Life Ins. Co., 206 N.C. 254, 173 S.E. 338; Appleman, Insurance Laws and Practice, Vol. 2, Sec. 762.
It is noted that the statute, Sec. 2½, Chapter 283, Session Laws of 1951, now codified as G.S. § 58-204.3, declaring the trustee of a pension plan to have an insurable interest in the lives of the persons covered by the pension plan, was not enacted until after the death of the insured in the instant case.
It necessarily follows that the insurance policy, so far as it relates to death benefits, stands unaffected by the pension trust rules and regulations. Therefore, in no aspect of the case was the defendant, trustee of the retirement funds, entitled to the death benefits. Whereas the policy provisions plainly entitle the wife to all death benefits. Thus the conclusion is inescapable that the insured's death immediately wiped out the cash surrender equity of the policy and brought to maturity the full death benefits due his wife.
We conclude that the plaintiff's evidence when considered with the pretrial stipulations entered below supports the allegations of her complaint and is sufficient to make out a prima facie case of money had and received.
It is manifest that the nonsuit below must be held for error unless the plaintiff's evidence together with the pretrial stipulations establish as a matter of law the defendant's affirmative defense of accord and satisfaction under application of the principle explained by Barnhill, J. (now C. J.) in Hedgecock v. Jefferson Standard Life Ins. Co., 212 N.C. 638, 641, 194 S.E. 86, 88: "When the plaintiff offers evidence sufficient to constitute a prima facie case in an action in which the defendant has set up an affirmative defense, and the evidence of the plaintiff establishes the truth of the affirmative defense as a matter of law, a judgment of nonsuit may be entered." See also Jarman v. Offutt, 239 N.C. 468, 80 S.E.2d 248.
"`An "accord" is an agreement whereby one of the parties undertakes to *831 give or perform, and the other to accept, in satisfaction of a claim, liquidated or in dispute, and arising either from contract or from tort, something other than or different from what he is, or considers himself, entitled to; and a "satisfaction" is the execution, or performance, of such agreement.'" Dobias v. White, 239 N.C. 409, 413, 80 S.E.2d 23, 27. See also Restatement, Contracts, Sec. 417; 1 Am.Jur., Accord and Satisfaction, Sec. 19; G.S. § 1-540.
For the nonsuit to be sustained on the theory of an accord and satisfaction, it must appear from the evidence, as the only reasonable inference deducible therefrom, that the plaintiff contracted to accept the lesser sum paid her in settlement of her claim for all the insurance moneys. This would require unequivocal proof of intent on the part of the parties that the acceptance of half the proceeds should operate as a discharge of any further obligation to the plaintiff by the defendant. Blanchard v. Edenton Peanut Co., 182 N.C. 20, 108 S.E. 332. This may be a permissible inference to be drawn from the evidence, but it is not the only reasonable inference deducible therefrom.
In Blanchard v. Edenton Peanut Co., supra, 182 N.C. at page 22, 108 S.E. at page 333, appears this pronouncement: "`It is the well-recognized principle here and elsewhere that when a dispute exists between two parties as to the amount of an account, and one sends another a check or makes a payment clearly purporting to be in full settlement of the claim, and the other knowingly accepts it, this will amount to an adjustment, and further action thereon isprecluded. It is a question, however, of the intent of the parties, as expressed in their acts and statements at the time, and unless, on the facts in evidence, this intent is so clear that there could be no disagreement about it among men of fair minds, the issue must be decided by the jury.'
"In the case at bar, we do not think it appears unequivocally that the check was sent on condition that its acceptance should amount to a settlement in full, or as a complete discharge of the debt. This may be a permissible view to take of the evidence, but not necessarily the only one. The sending of the check to cover what the defendant claimed was the balance due on the account does not ipso facto show conclusively that an accord and satisfaction was the condition annexed to its acceptance. The ultimate fact can only be determined by a jury under proper instructions from the court."
In McCullen v. Hood, 14 N.C. 219, there was a plea of accord and satisfaction where plaintiffs' heirs were suing the defendant administrator of their ancestor's estate for rents unaccounted for. The plea was based on a receipt given to defendant by plaintiffs' guardian, which read as follows: "Received of Britain Hood, as next friend to the heirs of Asher McCullen, deceased, the following notes of hand, for rent of lands, etc., * * *" No other evidence was offered. The trial court left it with the jury to determine whether the notes were received as an accord and satisfaction or as a discharge pro tanto. The jury found for plaintiff. This Court held that the receipt, not stating it to be payment in full, was not in itself sufficient evidence to support the plea of accord and satisfaction. See also Grant v. Hughes, 96 N.C. 177, top page 191, 2 S.E. 339, 345, 346.
In Armstrong, Cater & Co. v. Lonon, 149 N.C. 434, 63 S.E. 101, the Court held it to be a jury question whether a discharge of all indebtedness resulted from creditor's endorsement of a check marked "in full to date." The Court said: "The check indicated on its face that it was sent in full payment to date thereof, and, while this is not under the circumstances of this case conclusive, yet the receipt of it by the plaintiffs, their indorsement of it, and retention of the money is sufficient evidence to go to the jury that it was sent and received as a full payment and discharge of all indebtedness of defendant to plaintiffs, and so intended." (Italics added.)
In Rosser v. Bynum, 168 N.C. 340, 84 S.E. 393, the headnote adequately states the *832 rule enunciated: "A check given and received by the creditor which purports to be in full of account to date does not conclude the creditor, accepting it, from showing that in fact it was not in full, unless, under the principles of accord and satisfaction, there had been an acceptance of the check in settlement of a disputed account." In the opinion Hoke, J., speaking for the Court, said: "It is well recognized that when, in case of a disputed account between parties, a check is given and received clearly purporting to be in full, or when such a check is given and, from the facts and attendant circumstances, it clearly appears that it is to be received in full of all indebtedness of a given character or all indebtedness to date, the courts will allow to such a payment the effect contended for. * * * (Authorities cited.) A proper consideration of these and other cases on the subject will disclose that such a settlement is referred to the principles of accord and satisfaction, and, unless the language and the effect of it is clear and explicit, it is usually a question of intent to be determined by the jury." See also Walker v. Burt, 182 N.C. 325, 109 S.C. 43; Lochner v. Silver Sales Service, 232 N.C. 70, 59 S.E.2d 218; Penn Dixie Lines v. Grannick, 238 N.C. 552, 78 S.E.2d 410.
In the case at hand, while the plaintiff testified "I thought I'd better take that (the half offered) rather than nothing," and "I knew I was receiving half of the total life insurance check and that the pension fund was receiving the other half," nevertheless, she said on redirect examination, "At the time I received these funds at the bank from Mr. Rogers, I didn't intend to abandon any right that I might have had in the full proceeds of the insurance policy on the life of my husband. * * *" And it is noted that the written receipt she signed nowhere expressly states that the sum received by her was accepted in full settlement of her claim.
We conclude that the plaintiff's evidence does not establish the defendant's affirmative defense of accord and satisfaction as a matter of law. On this record it is an open question for the jury. Blanchard v. Edenton Peanut Co., supra; Winkler v. Appalachian Amusement Co., 238 N.C. 589, 598, 79 S.E.2d 185, 192; 1 Am.Jur., Accord and Satisfaction, Sections 22 and 78; 1 C.J.S., Accord and Satisfaction, § 49 b. In this view of the case, we do not reach for decision the question of the sufficiency of the evidence to support the issue of fraud raised by the plaintiff's reply.
The judgment of nonsuit entered below is
Reversed.
