196 Mass. 371 | Mass. | 1907
The only question in this case is whether the court should have ruled as requested by the defendant that there was not sufficient evidence to warrant a finding for the plaintiff on the second count, which was for money had and received by the defendant’s testatrix to the plaintiff’s use. The only evidence in the case was the auditor’s report. The auditor found in substance that the plaintiff, who was blind, received in June, 1904, $500 from one Bassett in payment of the balance due oil
The defendant contends that an action for money had and received will not lie because his testatrix never received any money and that all that she obtained by the transfer was a right to demand from the bank the amount transferred, in other words a chose in action. But the transfer of the deposit and dividends from the plaintiff to herself was the same in legal effect as if she actually had withdrawn the money and had redeposited it in her own name. In such a case it is plain that an action for money had and received would lie. See Randall v. Rich, 11 Mass. 494; Emerson v. Baylies, 19 Pick. 55 ; Henchey v. Henchey, 167 Mass. 77; Sullivan v. Sheehan, 173 Mass. 361. No demand was necessary and interest was due from the time when the money was fraudulently misappropriated by the defendant’s testatrix. Hill v. Hunt, 9 Gray, 66. Manufacturers’ Bank v. Perry, 144 Mass. 313.
Exceptions overruled.