                         United States Court of Appeals

                             FOR THE EIGHTH CIRCUIT



                                    No. 95-4207


James M. Dickey,                           *
                                           *
      Appellee,                            *
                                           * Appeal from the United States
          v.       *                       District Court for the Eastern
                                           * District of Missouri.
Royal Banks of Missouri, a                 *
Missouri State Banking                     *
Corporation, and Laura                     *
Trigg-Brown, an Individual,                *
                                           *
         Appellants.                       *




                       Submitted:   November 22, 1996

                           Filed: April 15, 1997


Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and BOGUE,1
     District Judge.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

     A jury awarded James M. Dickey $104,000 against Royal Banks of
Missouri (the "Bank") for unjust enrichment and against the Bank and its
employee, Laurie Trigg-Brown, for misconduct associated with an improper
notarization.      We have concluded that under Missouri law the unjust
enrichment claim failed to state a cause of action, and that the second
claim failed for lack of evidence on the issue of causation.    We therefore
reverse the judgment of the trial court.




     1
      The Honorable Andrew W. Bogue, United States District Judge
for the District of South Dakota, sitting by designation.
                                            I.
     This     case    arises   from   the   actions       of   Barney   Sandow,   who   was
originally a defendant in the case but was later dismissed.                         He is
currently serving time in prison for perpetrating various frauds on
Mr. Dickey as well as on others.       See United States v. Sandow, 78 F.3d 388
(8th Cir. 1996).      The two men met in 1987 in Saint Louis County, Missouri,
where they were commercial tenants in the same building.                   Mr. Sandow had
an insurance business and Mr. Dickey had an equipment supply business.
They developed a friendship.      Mr. Sandow handled a series of small business
affairs   for   Mr.   Dickey,   and   in    time    Mr.    Dickey   came   to   trust   him
completely.


     When Mr. Sandow suggested that an annuity that Mr. Dickey owned could
be exchanged for a better-performing asset, Mr. Dickey went along with the
idea and delivered the annuity to him.            While at first Mr. Dickey believed
that his annuity was going to be cashed in for a higher-yielding one, at
a later time he understood from his conversations with Mr. Sandow that the
annuity was to be used as collateral for a loan to secure money for
reinvestment.    The vagueness of his understanding on this matter, and the
casualness with which he lost control of his annuity, are testaments to
Mr. Dickey's faith in Mr. Sandow.            That faith also led him to sign any
paper that Mr. Sandow put in front of him, which came to include, in time,
an assignment and pledge of Mr. Dickey's annuity to the Bank.


     Mr. Sandow went to the Bank to apply for a loan.                   He told the Bank
that Mr. Dickey was his co-investor and that the two of them were going to
lend the proceeds of the loan to a third party for a higher rate of
interest.     He delivered Mr. Dickey's annuity to the Bank as collateral.
When the Bank considered the loan at a meeting of the loan committee it was
approved, although a director of the




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Bank who was present at the meeting (who knew Mr. Dickey as a former
neighbor) asked that the loan officer verify that Mr. Dickey was aware of
the   circumstances     concerning   his    annuity.    Mr.   Sandow   subsequently
delivered an assignment of the annuity, signed by Mr. Dickey, to the Bank.



      The loan officer then called Mr. Dickey to verify that he knew what
was happening.   The officer testified that he asked Mr. Dickey whether he
understood that an annuity put up as collateral could be lost in the event
that the loan went bad.     Mr. Dickey testified that he told the officer that
he understood "from Mr. Sandow that he [had] in mind an investment that he
might put the annuity on as collateral for somebody to buy this condo."


      After      that     conversation,          the   officer    instructed
Ms. Trigg-Brown to notarize the assignment even though Mr. Dickey did not
appear in person. The assignment was then sent to the issuer of the
annuity, the John Alden Company.      That company sent a letter to the Bank,
with a copy to Mr. Dickey, acknowledging receipt of the assignment.             The
Bank prepared a pledge of the annuity, which Mr. Sandow returned with
Mr. Dickey's signature.     Mr. Sandow then signed a promissory note and the
Bank issued a check to him in October, 1990.


      Mr. Sandow did not simply take the money and run.           In late October
he gave Mr. Dickey a check for $5,000, which he called "up front interest."
Mr. Dickey accepted the check, testifying later that he "didn't know what
he was talking about, 'up front interest,' but he said that's the way they
do business on collateral, so I took his word for it."            Mr. Sandow also
told Mr. Dickey that more money would follow, but none ever came.




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     By May, 1991, the Sandow loan had gone into default.                   The Bank
requested the cash value of the annuity from the John Alden Company and a
check for $110,318.46 was sent payable to "Royal Banks of Missouri, Inc.,
FBO/[loan    number]   James   Dickey."     This    check,    which   was   sent    to
Mr. Sandow's home address, was then presented by Mr. Sandow to the Bank
with Mr. Dickey's endorsement on it.      Finally, the Bank, in August, 1991,
issued a check payable to Mr. Sandow and Mr. Dickey for $6,556.43,
representing the difference between the amount owed the Bank and the value
of the collateral.     Mr. Sandow apparently cashed that check after forging
Mr. Dickey's endorsement.


                                      II.
     The unjust enrichment claim in this case was tried as a common-law
claim for money had and received.     This is a vestigial form but it is not
so archaic that it can be ignored under Missouri law.           It is a particular
instance of general assumpsit or, in more modern terms, quasi-contract, and
it encompasses a number of factual patterns which call for restitution to
prevent unjust enrichment. It and other such ancient common counts, such
as quantum meruit and for money paid, continue to serve a purpose in
Missouri law since "the principle of unjust enrichment, isolated and alone,
without its formal pleading baggage, may not state a substantive claim for
relief."    Fenberg v. Goggin, 800 S.W.2d 132, 135 (Mo. Ct. App. 1990).            See
also 1 Dan B. Dobbs, Law of Remedies § 4.2 at 570-86 (2d ed. 1993).


     We recognize, as Mr. Dickey urges us to do, the breadth of this
common-law action under Missouri law.          The action for money had and
received is "a very broad and flexible action," and "[t]he tendency of the
courts is to widen rather than restrict its scope."          Alarcon v. Dickerson,
719 S.W.2d 458, 461 (Mo. Ct. App. 1986).           We




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also note the way in which law and equity have become combined in unjust
enrichment actions, so that "[t]hey are equitable in character, the
obligation arising from the law and natural justice." Donovan v. Kansas
City, 175 S.W.2d 874, 884 (Mo. 1943) (en banc), modified on other grounds,
179 S.W.2d 108 (Mo. 1944) (en banc) (per curiam).      Nevertheless, although
it is broad and appeals to a court's sense of equity and common right, an
action for money had and received must, to be successful, fall within
limits that have over the years become reasonably well demarcated.


     An action for money had and received will lie when the defendant
received money from or for the plaintiff that belongs in good conscience
to the plaintiff.      For instance, if the plaintiff paid money to the
defendant by mistake, see, e.g., Brandkamp v. Chapin, 473 S.W.2d 786, 788
(Mo. Ct. App. 1971), or under duress, see, e.g., Jurgensmeyer v. Boone
Hospital Center, 727 S.W.2d 441, 443 (Mo. Ct. App. 1987), or by reason of
fraud, see, e.g., Teachers Credit Union v. Olds, 553 S.W.2d 545, 547 (Mo.
Ct. App. 1977), a claim for money had and received is made out.         Fenberg,
800 S.W.2d at 135.   See also 1 Dobbs, Law of Remedies § 4.2(3) at 576-86.
 Such an action also lies if it appears "'that the money in question
belonged to [the] plaintiff, [and] that it was secured by [the] defendant
without   [the]    plaintiff's   consent,   and   without   giving    any   valid
consideration.'"    Forsthove v. Hardware Dealers Mutual Fire Ins. Co., 416
S.W.2d 208, 220 (Mo. Ct. App. 1967), quoting 58 C.J.S. Money Received § 8
at 919 (1948).     One reading of these cases is that a court will force a
defendant to disgorge a windfall if it is equitable to do so.        See 1 Dobbs,
Law of Remedies § 4.1(1) at 555 ("[r]estitution measures the remedy by the
defendant's gain and seeks to force disgorgement of that gain").        See also
Newco Land Co. v. Martin, 213 S.W.2d 504, 515 (Mo. 1948).




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       The difficulties in fitting this theory of relief to the facts of
this case are so numerous, we believe, as to have made the legal theory
upon which relief was sought and granted practically incoherent.   The trial
court instructed the jury that a case for money had and received would be
made out if the "plaintiff's intended purpose in assigning the aforesaid
insurance policy and annuity differed from the purpose for which defendant
... accepted and applied the policy and annuity," and if "in accepting and
applying the proceeds of the aforesaid insurance policy and annuity,
defendant ... knew facts upon which a reasonable person would suspect that
the intended purpose of plaintiff in assigning the insurance policy and
annuity ... was different from the purpose for which defendant ... applied
the proceeds."


       With respect, we fail to understand how these facts, if proved, could
give rise to a claim for money had and received in Missouri or, indeed,
anywhere else.   First of all, no money changed hands at the time that the
instruction marks as critical, that is, when the assignment took place.
Second, assuming, arguendo, that the action could lie so long as something
of value (but not necessarily money) was transferred, the transfer of the
annuity did not amount to a windfall to the Bank.   The Bank lent Mr. Sandow
money in reliance on the assignment, and the money that it received in the
end was applied to satisfy that unpaid loan.   Third, this transfer of money
to the Bank cannot be called unjust in light of the fact that it merely
satisfied a debt that was concededly owed.      Finally, it is not easy to
understand how the transfer of the money to the Bank could be unjust when
the jury instruction speaks of what the Bank knew or should have known at
some   time considerably anterior to the transfer, that is, when the
assignment was made.   Mr. Dickey, moreover, received consideration for his
assignment, namely, Mr. Sandow's promise to make an investment for him that
he




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hoped would be superior in performance to his annuity, and the $5,000 he
accepted from Mr. Sandow at a later time which he understood to be a
benefit of the investment decision that he had made.


        We    note,   in   addition,   that   the   facts   recited   in   the   quoted
instruction also do not make out a case of negligence.                      While the
instruction speaks in terms of what the defendant knew or should have
known, language that is at home in negligence cases, in this instance there
is no connection made between the allegedly relevant knowledge and the
loss.    There is nothing in the instruction that would allow a recovery for
negligently accepting an assignment, for the jury is invited to discern
what knowledge the Bank might have had at a time considerably later than
the date that the assignment was executed.             By that time, the Bank had
already advanced money to Mr. Sandow, and anything that it learned later
would have manifestly come too late to undo a transaction long since
consummated.     It can scarcely be maintained that the Bank acted negligently
in applying the proceeds of the assignment to the debt after that debt came
into default.


                                          III.
        The jury also awarded relief in this case based on a Missouri statute
that makes a notary, and his or her employer, responsible for damages that
are proximately caused by professional misconduct. See Mo. Rev. Stat.
§§ 486.355-486.365.        The theory of this count would appear to rest on the
premise that Mr. Sandow's fraudulent scheme would have been uncovered if
only    Mr.    Dickey had appeared before a notary when he executed the
assignment.


        There is more than one difficulty in the way of this theory, not
least the fact that Mr. Dickey admits that the signature on the




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assignment    is   his.    This   admission   removes   the   notary   from   any
responsibility for the execution of the assignment and the harm that befell
Mr. Dickey, because "the notary's duty is [merely] to acknowledge the
authenticity of the signature."    Herrero v. Cummins Mid-America, Inc., 930
S.W.2d 18, 22 (Mo. Ct. App. 1996).      The court in Herrero, rejecting the
claim that the role of the notary was to make sure that the signatory knew
what he was signing, said that "[b]ecause the plaintiff here did not
dispute the genuineness of her signature, [the defendant] did not commit
official misconduct, which would subject her to liability for notarizing
the form outside of [the] plaintiff's presence." Id.


     Not surprisingly, Mr. Dickey offers no case in which a notary was
held liable in a situation where the notarization was technically deficient
but the signature was authentic.       We note, moreover, that Mr. Dickey's
claim is yet one step further removed from the one rejected in Herrero:
He claims not that he was mistaken about the contents of the assignment
form, but only that he was mistaken about the underlying purpose for which
he was assigning his annuity.      Neither Ms. Trigg-Brown, nor Royal Banks,
can be found liable in these circumstances.


                                      IV.
     For the reasons stated, we reverse the judgment of the trial court.



     A true copy.


             Attest:


                   CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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