2 Denio 139 | N.Y. Sup. Ct. | 1846
This is an action for money had and received by the defendants to the use of the plaintiff. It is denominated an equitable action, and is less restricted by technical rules than most others. It aims at the mere justice of the case, and looks entirely to the question whether the defendants hold money which in equity and good conscience belongs to the plaintiff. It is an appropriate action to recover back money paid upon a consideration which happens to fail; as where money has been paid by one party in contemplation of some act to be done by the other, which is the consideration of the payment, and the thing stipulated to be done is not performed. (Wheeler v. Board, 12 John. Rep. 363; Chit. on Cont. ed. 1842, 622; Rew v. Barber, 3 Cowen, 280.)
Tiiat the consideration for which the plaintiff made and delivered his note for six hundred dollars to the defendants has wholly failed, there is not, as I think, the least room to doubt. In consideration of receiving that note the defendants agreed to sell the plaintiff the two notes held by them, and on the return of Besly to New-York immediately to transmit them to the plaintiff. The defendants instead of performing their undertaking, after it had been made claimed the interest in the notes and actually sued W. J. Nelson as the endorser of them; and in
In my opinion the sending these notes to the plaintiff did not cast upon him the necessity of returning or offering them to the defendants as upon a recision of a contract, to entitle him to this action to recover the consideration which he had paid. If sending these notes with the cancelled endorsements was an act in part performance of their contract with the plaintiff, then on their failure to perform the remainder of that agreement, the plaintiff could not sustain the action for money had and received until he returned or offered to return the notes thus sent to him. (Thornton v. Wynn, 12 Wheat. R. 189; Chit. on Contr. 741.)
It was proved that the defendants had sold the plaintiff’s note and received pay for it; and as no question was made on the trial, but that it had been transferred to an innocent holder, before maturity and before this suit was brought, so as to entitle such holder to recover against the plaintiff, such facts may be here properly assumed. The question then arises whether the giving of the note by the plaintiff to the defendants and their transfer of it to a bona fide holder for value paid to them before this suit was brought was equivalent to the payment of money ? This question is not free from diíñculty. I do not find that the precise point has been decided by this court. It was considered by Savage, Ch. J. in Reed v. Van Ostrand, (1 Wend. 424,) though the question was not directly involved in the case. The question there was, whether the maker of several promissory notes negotiable in terms, given for the purchase money of a patent right to which the purchaser got no title, could sustain an action against the payee as for money had and reeceived, the
Upon the whole, I am of opinion that the action was sustained.
New trial denied.