BODY OR SUBSTANCE.-I. INAASSUMPSIT. IN ASSUMPSIT. INA ASSUM *349 fendant's request, an outgoing tenant cannot recover the usual remunera- IV. ITS tion payable to him as outgoing tenant for work and materials on the PARTS, &c. farm, but must declare specially (a). 5thly. The cause of action. As before observed, where there is an entire contract for work and labor and materials, the value of the latter is not recoverable under a count for 1. In asgoods sold (b); nor can the count for work and labor and materials be sumpsit. maintained, unless the article agreed for has been finished, and appropri- Common ated to the defendant by his consent, and he has acquired a property in counts. the specific chattel (c). To support this count the plaintiff must in general have completely performed the work contracted for (d); and if not, it is necessary to declare specially if the defendant has wrongfully prevented the plaintiff from performing the work; as where a seaman, who was to have wages for his service during an entire voyage, but pending it was left behind on shore, and prevented from serving the whole voyage, a special count was held to be necessary (e). But if a party be hired as a servant, or clerk, &c. for a specific period, and in part perform the service, and be ready to complete it, but be prevented from so doing by the employer, the wages or salary for the whole term may be recovered upon the indebitatus count for work done (ƒ)(1). And in some cases, although the original agreement has not been strictly performed by the plaintiff, yet if the defendant avail himself of, and derive a benefit from the work done, he will be liable upon a common count (g) (2). But where A. undertook for a specific sum to repair and make perfect a given article then in a damaged state, and did repair it in part but did not make it perfect, it was held that he could not recover for the work actually done and materials found, the contract being entire, and the defendant having never been discharged from his obligation to complete it ()(3). And if a person hired for a period be guilty of misconduct which justifies his employer in discharging him at once, it seems that he cannot recover even for his antecedent services (i). Money lent to the defendant himself on his own credit, may be recover- Money ed under the common count for money lent, though delivered to another (a) Leeds v. Burrows, 12 East, 1. (b) Ante, 347. (c) Ante, 148, 347. (d) 2 Saun. 350, note 2. (e) 2 East, 145; 8 Id. 300; 6 T. R. 320; see 5 Bing. 135; 2 Chit. R. 320. (f) 4 Campb. 375; 1 Stark. 198, S. C.; 5 Bing. 132, 135; but see 3 Car. & P. 350. (g) See Bul. N. P. 139. Per Sir J. Mans field, C. J., 1 New Rep. 355; 4 Taunt. 748. (h) 9 B. & C. 92; 3 Taunt. 52. (1) Where one contracts to labor for another for a stated time, upon a given consideration, if he is prevented from fulfilling his contract by sickness, he may recover pro rata, for the services. performed, upon a quantum meruit. Fenton v. Clark, 11 Vermont, 557; Hunter v. Waldron, 7 Alabama, 753. See Nichols ». Coolahan, 10 Metcalf, 449. (2) Merrill v. The Ithaca and Oswego Rail Road Co., 16 Wend. 586; Smith v. Lowell, 8 Pick. 178; Brewer v. Tyringham, 12 id. 547. See Olmstead v. Beale, 19 Pick. 528, 529; Van Deusen . Blum, 18 Pick. 229, 231; Feeter v. Heath, 11 Wendell, 477; Norris v. Windsor, 3 Fairf. 293; Gazzam v Kirby, 8 Porter, 253; Gilman v. Hall, 11 Vermont, 510; Chitty Cont. (6th Am. ed.) 569, to 571 in notes; Newman v. M'Gregor, 5 Ham. 349; Hoagland v. Moore, 2 Blackf. 170; Alcom v. Harmanson, ib. 235; Cauly v. Ingersol, 4 Black. 493; Butts v. Huntley, 1 Scam. 413; Vanderbilt v. Eagle Works, 25 Wendell, 665; Butler v. Tucker, 21 Wendell, 447; Gilman v. Hall, 11 Vermont, 510; Blood v. Enos, 12 ib. 625. See, however, Stark v. Parker, Moses v. Stevens, 2 Pick. 267, 332. Chitty Cont. (6th Am. ed.) 579, 580, note, and cases cited. (3) Hill v. School Dist. No. 2 in Milburn, 5 Shepley, 316; Leflore v. Justice, 1 Smedes & Marsh. 381. lent, PARTS, &c. cause of action. 1. In as sumpsit. Common counts. IV. ITS person at his request (j); and sometimes the plaintiff may *recover on the common count for money lent, though a special agreement has been en5thly. The tered into and rescinded (k); but the transaction must have been substantially a loan by the plaintiff (i). And if money be lent to a third person at the defendant's request, and both be liable to repay the money, the one on a loan, and the other in respect of his collateral engagement, which must be in writing, the count against the latter must be special (m) (1). A declaration against a husband "for money lent to his wife at his request" is maintainable (n); aliter, if it be alleged that the money was lent to her at her request, or was lent to both at their joint solicitation (o). In general there must have been a loan of money to support this count; but an advance in foreign coin is sufficient (p). The transfer of stock into the defendant's name could not, it seems, be regarded as a loan of money to him (q) (2). Money paid. To sustain the common count for money paid by the plaintiff for the defendant's use and at his request, it is essential, first, that the plaintiff should have paid money for the defendant (r) (3), and secondly, that such payment should have been made at the defendant's request express or implied (s) (4). Where the sum which the plaintiff has paid is in the nature of unliquidated damages or costs, and cannot be considered as strictly paid in dis (j) 8 T. R. 328. As to evidence of loan, see 2 Phil. on Evid. 5th edit. 127; 7 B. & C. 416; 1 M. & R. 125, S. C. When this count lies by the assignee of a bankrupt, ante, 25; or an executor, ante, 19, 20. (k) 7 Bing. 266. (1) 5 Bar. & Ald. 389. (m) 1 Saund. 211 b; 1 Salk. 23; Id. 15; Carth. 446; 2 Wils. 141; 3 Id. 388; 2 Bla. R. 872; 2 T. R. 81; 1 Moore, 126. (n) 3 Wils. 388. (p) 1 Marsh, 33; 5 Taunt. 228. (q) 5 Burr. 2589; 1 East, 1; 2 B. & Ald. 51. The exchange of securities, notes, &c. when it is not a loan, 8 Taunt. 208. (r) 10 Bar. & Cres. 346; 2 B. & Ald. 51; 3 East, 159; and 7 Bing. 246;6 Bar. & Cres. 439; 9 D. & R. 603, S. C. (s) 1 Saund. 264, note 1. (1) Marston v. Boynton, 6 Metcalf, 127. See the circumstances under which the plaintiff was held to be entitled to recover as for money lent, under the common count. Perkins v. Dunlap, 5 Greenl. 268. (2) A note payable in specific articles is admissible in evidence under the money counts, Crandall v. Bradley, 7 Wend. 311; Smith v. Smith, 2 Johns. 235, and Pierce v. Crafts, 12 Johns. 90. (3) Hatten v. Robinson, 4 Blackf. 479; Haskins v. Dunham, Anthon, 81; Wilson v. George, 10 N. Hamp. 445; Murray v. Pate, 6 Dana, 335; Stone v. Porter, 4 Dana, 207. An accommodation indorser, a surety, paid part of a judgment obtained against him and gave his note for the balance which was accepted by the plaintiff in satisfaction of the judgment; held, that the cause of action was perfect, and he might recover against his principal as for money paid, and the statute of limitations begins to run. Rodman v. Hedden, 10 Wend. 498. But in Kennedy v. Carpenter, 2 Whart. 344, it was held, that an accommodation indorser who had been compelled to pay the note to the holder, could not recover from the maker on any of the money counts, but must sue on the note. But as a general rule, a surety cannot recover until he has actually paid the money; and a judgment recovered against, or an imprisonment on the execution are not considered equivalent to payment so as to entitle the surety to call upon his principal for money paid to his use. But where there is an express promise to indemnify and save harmless, and the surety is sued and charged in execution, the promise to indemnify is broken, and the surety may maintain an action without the debt having been paid; but he can only recover a compensation for the injury, ib. Powell v. Smith, 8 Johns. 249. If the surety give his negotiable note for the debt, which is received in satisfaction, it is equivalent to the payment of money, ib. Cumming v. Hackley, 8 Johns. 206; Wetherby v. Manns, 11 Johns. 518; 3 Mass. 403; Chandler v. Brainard, 14 Pick. 285; Cornwall v. Gould, 4 ib. 444; Doolittle v. Dwight, 2 Metcalf, 561; Neale v. Newland, 4 Pike, 506. If a surety pays money for his principal by virtue of a legal obligation, it gives the surety an immediate cause of action against his principal. Butler v. Wright, 20 Johns. 367; 2 Wend. 409. (4) Wharton v. Franks, 9 Porter, 282; Stephens v. Brodnax, 5 Alabama, 258. will not lie by a town, to recover back moneys expended for the support of a pauper. town v. Hubbard, 9 N. Hamp. 195. An action Charles cause of counts. charge of a debt due from the defendant (t); or where the plaintiff has IV. ITS not actually made a payment in money, but has merely been obliged to PARTS, &c. give security (1), or his goods have been sold under a distress for the 5thly. The defendant's debt, the declaration must be special for not imdemnify- action. ing, &c. (u); and where an accommodation acceptor has been obliged to 1. In aspay cost as well as a principal sum, he must, to recover the *former, de- sumpsit. clare specially (v). Nor is there any ground for supporting the count Common for money paid unless the payment were made at the express or implied (2) request of the defendant, and the request must be always aver- [851] red (x). It is clear, however, that if money be paid by a person in consequence of a legal liability to which he is subject, but from which a third person ought to have relieved him by himself paying the amount, a request will be implied. Thus an executor who has paid the legacy duty may sue the legatee for the amount, as money paid for his use at his request (y). The form of this count is extremely simple, it is merely stating that the defendant is indebted to the plaintiff in a certain sum "for money had and received by the defendant to and for the use of the plaintiff." (3). (t) 5 Esp. Rep. 3; 4 Id. 223; 8 T. Rep. 610; 1 T. R. 269; 7 Id. 204, 576; 1 Wils. 188; 4 Campb. 81; Jones v. Farney, 1 M'Clel. 25; but see 4 Taunt. 189. Where the plaintiff purchased stock, which the defendant agreed to transfer on a given day, and in consequence of a rise the loss on the sale amounted to £15, which the defendant refused to pay; and the plaintiff afterwards paid that sum to another broker, by whom the transfer was made; it was held, the plaintiff could not recover in an action for money paid, but that he should have declared specially on the contract with the defendant, as his claim was in the nature of unliquidated damages, 2 Moore, 255. A debt paid by a sheriff's officer on an attachment against the sheriff, by the defendant's default, is recoverable by the former under the common count, 1 M. & M. 347. (u) 3 East, 169; 11 Id. 52; 2 B. & Ald. 51; 3 Esp. 611; see 6 Bing. 229, 305. When parties who have paid money for another should join or sever in suing the latter, ante, 8,9; 7 B. & C. 217. (v) Seaver v. Seaver, 6 Car. & P. 673; see form 2 Chitty on Pleading, 5th ed. 316, 6th ed. 197. (r) 1 T. R. 20; Exall v. Partridge, 8 T. R. 310; 1 Saund. 264, note 1. The request must be stated, even in an affidavit to hold to bail for money paid; 9 B. & C. 543. When the request will be implied, 1 B. & B. 391; 6 B. (y) Foster v. Ley, 2 Bing. N. C. 269. (z) See as to this action in general, and the various instances in which it is maintainable, a leading case, Marsh v. Keating, 1 Bing. N. C. 198. It is an action in which the plaintiff should show a just as well as legal right to the money. See 2 Burr. 1012; Dougl. 188; 2 T. R. 370; 6 Id. 631; 3 B. & P. 169. It lies for the recovery of money paid under a mistake of facts; or obtained by fraud or compulsion; [Chitty Cont. (5th Am. ed.) 633. 634 notes;] or extorted by unjust and oppressive proceeds; or deposited. upon an illegal wager, or an illegal contract, not executed; or paid upon a consideration which has wholly failed, &c. See id. But it does not lie to recover back money recovered by a judgment, 7 T. R. 269; 2 Campb. 63; 2 T. R. 645; 4 Campb. 58. (6). [Chitty Cont. (5th Am. ed.) 638, 689 notes & cases cited; Maghee v. Kellogg, 24 Wend. 32. But money paid on a judgment that is afterwards reversed or vacated may be recovered back in this action. Homer v. Banet, 2 - Root, 156; Sturges v. Allis, 10 Wend. 354; Duncan .v. Ware, 5 Stew. & Porter, 119; Clark v. Penney, 6 Cowen, 297; Jamaica v. Guilford, 2 Chip. 103; Maghee v. Kellogg, 24 Wend. 32.] (1) Acc. Cumming v. Hackley, 8 Johns. 202. Unless that security be a negotiable instrument, Id. 3 Johns. 206. Barclay v. Gooch, 2 Esp. 571; Morrison v. Berkey, 7 Serg. & Rawle 246; Kearney v. Tanner, 17 Serg. & Rawle, 94. (2) See Hassinger v. Solms, 5 Serg. & Rawle, 4; Packard v. Lienow, 12 Mass. 11; Ott v. Chapline, 3 Harr. & M'Hen. 323; Smith v. Sayward, 5 Greenl. 504. Vide Riggs v. Lindsay, 7 Cranch, 500. (3) Generally speaking, whenever one person has in his hands money equitably belonging to another, that other person may recover it by assumpsit for money had and received. Hall v. Marston, 17 Mass. 575, 579; Claflin v. Godfrey, 21 Pick. 1, 6; Hawley v. Sage, 15 Conn. 52. Dividends on shares in a corporation may be recovered from the corporation, as money had and received by the corporation to the use of the person entitled thereto, as owner of the shares, even although he has not a certificate of stock. Nes with v. Washington Bank, 6 Pick. 824; Ellis v. Essex Merrimack Bridge, 2 Pick. 243. But they cannot be received from the treasurer. French v. Fuller, 23 Pick. 108; Weston v. Gibbs, 28 Pick. 205. Money had and received (z). IV. ITS cause of action. 1. In as Common counts. It must in general appear that the defendant has received money (1), PARTS, &c. and not merely money's worth, as stock (a) (2), or goods (b) ; but if the de5thly. The fendant received foreign money he would be chargeable upon this count (c). The common count will also suffice against a party who received country bank notes expressly as money (d) (3). Where goods or other property sumpsit. improperly received by the defendant are saleable, it may, under circumstances, and after a lapse of time, be presumed against him that he has sold the property and received money in return (e) (4), provided there be reasonable evidence that the defendant converted the same into money (e), but not otherwise (f). And the assignees of a bankrupt may maintain an action for money had and received against a party who took the goods of the bankrupt in execution after an act of bankruptcy, and then purchased the goods from the sheriff under a bill of sale, although no money actually passed (g) (5). So, where an insurance broker received credit in account with an underwriter for a loss upon a policy, it was [*352] held that his principal might *maintain money had and received against him, to recover the amount, although he had not actually received it (h). This count is sustainable in some cases where money has been received tortiously (6), or even by the intervention of forgery (i), without any (a) 5 Burr. 2589; 1 East, 1. (b) 11 East, 52. (c) 5 Taunt. 228; 1 Marsh. 33, S. C.; but see M'Lachlan v. Evans, 1 Younge & Jerv. 380. (d) 13 East, 20; 4 Bing. 178. (e) Dougl. 138; 4 T. R. 687; 3 B. & P. 659; 1 Hen. Bla. 239. (ƒ) M’Lachlan v. Evans, 1 Younge & Jerv. 880. (g) 1 Stark. 134. (h) 6 Taunt. 110; 3 Campb. 199. (i) Marsh v. Keating, 1 Bing. N. C. 198; held, that a stockholder, whose stock has been sold without his knowledge under a forged power of attorney, may sustain an action for money had and received against the innocent partners of the forger, who received the proceeds of the sale. (1) Ralston v. Bell, 2 Dall. 242. Vide Beardsley v. Root, 11 Johns. 464; Hantz v. Sealy, 6 Binn. 409. When the defendant, though he does not receive money, receives that for which he engages to pay money to a third person, such third person may sustain the action. Dearborn v. Parks, 5 Greenl. 81; Willis v. Crooker, 1 Pick. 204; Lacket v. Bohannon, 3 Bibh. 378; Madison v. Wallace, 7 J. J. Marsh, 100; Johnson v. Haggin, 6 J. J. Marsh, 581; Floyd v. Day, 3 Mass. 405; Willes v. Green, 2 N. Hamp. 333; Dean v. Mason, 4 Conn. 428; Mason v. Waite, 17 Mass. 560; Burnap v. Partridge, 3 Vermont, 144; Ainslee v. Wilson, 7 Cowen, 662; Arms v. Ashley, 4 Pick. 74; Greathouse v. Throckmorton, 7 J. J. Marsh, 18; Turner v. Egerton, 1 Gill. & Johns. 433, 436; Chitty Cont. (5 Am. ed.) 602, notes. Hatten v. Robinson, 4 Blackf. 480; Wilson v. George, 10 N. Hamp. 445; Murray v. Pate, 6 Dana, 335. (2) Morrison v. Berkey, 7 Serg. & Rawle, 246. Nor for the value of foreign securities unless it appear that the defendant had an opportunity of converting such securities into money. M'Lachlan v. Evans, 1 Younge & Jervis, 380. Nor is evidence that a horse was received by the defendant in exchange for a patent right, admissible either under a count for money paid, laid out and expended, or for money had and received. Dobler v. Fisher, 14 Serg. & Rawle, 179. If one dispose of a note belonging to another, he is liable to the owner for the amount in an action for money had and received. Larabee v. Ovit, 4 Vermont, 47. If an agent intrusted with property to sell for money, dispose of the property, he is liable in this form of action, whether the sale be actually effected for money or not. Thompson v. Babcock, Brayt. 24. An agent to collect a debt credited it to his principal as paid, and charged it to the debtor with his consent and it was held, that he could maintain an action for mouey had and received against such debtor. Emerson v. Baylies, 19 Pick. 55. (8) Vide etiam Beardsley v. Root, 11 Johns. 464. (4) Burnap v. Partridge, 3 Vermont, 114. See Witherup v. Hill, 9 Serg. & Rawle, 11. See also Chapman v. Shaw, 5 Greenl. 59; Hess v. Fox, 10 Wend. 436. (5) But assumpsit for money had and received lies to recover back money paid on an execution, issued on a satisfied judgment. Wisner v. Bulkley, 15 Wend. 321. So where money has been paid on a judgment subsequently reversed. Sturgess v. Allis, 10 Wendell, 354; Clark v. Pinney, 6 Cowen, 287; Maghee v. Kellogg, 24 Wendell, 36; Stevens v. Fitch, 11 Metcalf, 248. The real defendant in an action who pays a judgment recovered against the nominal defendant, which is afterwards vacated, may maintain an action, in his own name, to recover back the amount of such judgment. Stevens v. Fitch, 11 Metcalf, 248; Maghee v. Kellogg, 24 Wendell, 82. (6) See Chitty Cont. (6th Am. ed.) 633, 684, notes. IN BODY OR SUBSTANCE.-I. IN ASSUMPSIT. 352 5thly. The cause of color of contract (1), or under pretence of a contract not performed by IV. ITS the defendant, although, in general, a party is not at liberty to declare in PARTS, &c. an action in form ex contractu, where there has been no contract express or implied (k). Thus, assignees of a bankrupt may declare for money action. had and received against a creditor who has levied his debt by fi. fa. after 1. In asthe act of bankruptcy (1); and they may declare in assumpsit for money re- sumpsit. ceived from the bankrupt by way of fraudulent preference anterior to the act Common of bankruptcy (m). And where the defendant having fraudulently induced counts. the plaintiff to sell goods to A., who could not pay for them, and on the nominal resale of those goods by A., in which the defendant was really concerned, having obtained himself the money paid on such resale, it was held that the plaintiff might, in an action for money had and received, recover of the defendant the value of the goods unpaid for by A. (n) (2). And where a landlord refused to allow property-tax and distrained and sold for the whole of the rent, and the tenant did not forego his right to deduct the tax, the tenant recovered the amount of the tax in assumpsit for money had and received (o). But this rule is so far qualified, that the Courts will not allow a colorable title to the land, &c. to be tried under this form of action, but the plaintiff must declare in tort (p), even though the parties agree to waive the objection to the form of action (q) (3); and where there was no title, and a tenant having paid rent to A., was ejected at the suit of a third person, who afterwards recovered from him mesne profits for the period in respect of which he paid rent to A.; it was held, in an action for money had and received, that the tenant might recover back that rent from A., he not having set up any title to the premises on the trial (r). But assumpsit for money had and received does not lie against a sheriff by a landlord, for neglecting to pay a year's rent before the removal of goods of the tenant taken in execution, according to the [ *353 ] statute 8 Ann. c. 14, s. 1.(t). It seems that in general under this count the plaintiff must substantiate claim to some particular or specific sum (u) (4), but if he be legally and justly entitled to a certain sum received by the defendant, it is not material that the latter received it in an indirect and circuitous manner; thus, where the holder of a bill of exchange, who held it in trust for the plaintiff, sued the drawer, and pending that suit became bankrupt, and his assignees afterwards brought an action against the drawer in the bankrupt's name, in which action the sheriff having been guilty of an escape on mesne (k) Ante, 107, 1 T. R. 36; 1 Taunt. 359. (1) 2 Bla. Rep. 827; 3 Wils 304; 2 T. R. 144; Bul. N. P. 131; 6 T. R. 695, 683; and see 1 B. & C. 418. (m) 10 East 378, 418, ante, 100, 101. Trover has been thought to be the proper remedy, 4 T. R. 211; 1 Bla. Rep. 194. The defendant's admission that he had received money from the bankrupt, upon his examination before the commissioners, when insufficient to fix him, 7 B. & C. 128; 1 M. & R. 518, S. C. (q) 9 East, 378, 381. (r) 10 Bar. & Cres. 234. (t) 3 Campb. 260; 2 C. & P. 103, n. (1) Vide Ripley v. Gelson, 9 Johns. 201; Clinton v. Strong, Id. 370; Beardslee v. Richardson, 11 Wend. 25. (2) To warrant a recovery back of money paid under a special contract, a strict performance must be shown by the plaintiff, unless the contract has been expressly rescinded, or impliedly so. Green v. Green, 9 Cowen, 46; Clark v. Smith, 14 Johns. 326. (3) Baker v. Howell, 6 Serg. & Rawle, 481; Sadler v. Evans, Stapplefield v. Hugh, 4 Burr. 1985, 6; Clark v. Smith, 14 Johns. 326; Jennings v. Campb. 13 ib. 96; Haven v. Foster, 9 Pick. 112; Kilby v. Chitwood, 2 Mour. 104; Joyce v. Ryan, 4 Greenl. 101; Codman v. Jenkins, 14 Mass. 95; Boston v. Binney, 11 Pick. 1. (4) See Bates v. Curtis, 21 Pick. 247. |