| N.H. | Dec 15, 1864
The action of assumpsit for money had and received is the appropriate form of remedy where the defendant has received money, or that which is treated as money, to the use of the plaintiff; but it will not lie for stocks, goods, or other articles, unless, by the understanding of the parties, they were to be treated as money. 2 Greenl. Evi. secs. 117, 118.
Where goods have been tortiously taken and converted into money, the owner may waive the tort and recover for money had and received; but in such case he can only recover the amount of money received by the defendant, with interest. As where money was paid upon an illegal assessment of taxes, it was held that the costs of the distress could not, in an action for money had and received, be included in the damages. Dow v. First Parish of Sudbury, 5 Met. 73. In the similar case of Shaw v. The Inhabitants of Becket, 7 Cush. 442, where the collector had seized and sold property to a greater amount than the illegal tax, and had paid over the amount of the tax to the town, but retained the surplus to be paid to the plaintiff, it was held that plaintiff cou'ld only recover the amount of the tax and interest, but not the surplus or costs, in this form of action; although, had he brought trespass, he might have recovered the whole value of the property seized.
So, where money has been paid upon a consideration which has failed, the damages in this form of action will be limited to the money actually paid and interest, although in some other form of action a larger sum might have been recovered. 2 Greenl. Evi. sec. 124, and note, citing Neel v. Deans, 1 Nott & McCord, 210.
Upon these principles, the damages must be limited in this action to the amount of money received by the defendant with interest. If the coin received were to be regarded as merchandise, this action would not lie at all; and, as money, it can be regarded as fifty dollars and no more. At the tim§ it was received, it was worth no more, and if since that time it has been wrongfully converted, the tort must be considered as waived by the form in which the plaintiff sues, and the gold can only, in this action, be treated as money.
Again, if there has been a conversion of the gold by the attachment, the measure of damages in an action of trover would be its value at the time of such conversion. Pinkerton v. The Manchester & Lawrence Railroad, 42 N. H. 424—457.
Under our decisions, then, in no form of action would the plaintiff be entitled to the value of the gold on the day the verdict was rendered; but the measure of damages in those cases where a greater sum than the nominal value might in any event be recovered, would be the value of the gold at the time it ought to have been returned. When that was is not stated, but, of course, it may be assumed that it was not on the day of the trial, and therefore there could have been no error in declining to instruct the jury as requested, even had the action been trover.
Judgment on the verdict.