124 Mass. 457 | Mass. | 1878
The two counts in the declaration are in substance the same. The detailed statement, in the second, of the transactions out of which the plaintiff contends that his right of action arose, is surplusage, -being in the nature of a recital of evidence on which he would rely. Both counts are for money had and received by the defendant to the use of the plaintiff. Woodbury v. Jones, 3 Gray, 261. The defendant answered by a general denial" and an allegation of payment. Under a general denial, all facts material to the establishment of the plaintiff’s case were in issue. The allegation was that the defendant had received money under such circumstances that he was bound to pay it to the plaintiff. The general denial called on the plaintiff to prove, not only the receipt of the money by the defendant, but that he received it under circumstances which gave the plaintiff a right to recover it. The defendant was entitled, under his answer, to establish any facts which would disprove the plaintiff’s case. It was open to him to show that he did not receive the money, and that, if he did receive it, he was under no obligation to pay it to the plaintiff. For this purpose he might prove that it was received in payment of a debt due him from the plaintiff, because this would show that he never had become a debtor to the plaintiff, which would directly sustain his denial. Howard v. Hayward, 16 Gray, 354.
There was evidence in the case which would have warranted the jury in finding that a part, at least, of the proceeds of the plaintiff’s interest in the farm was received by the defendant in discharge of advances made by him in paying the consideiation for the farm, in discharging incumbrances on it, and in selling parcels of land from time to time, and that these advances were made with the consent of the plaintiff, and with the understanding that the defendant was to manage the whole business after he conveyed the undivided half to the plaintiff, as he had done while he held the title in trust. The defendant asked for instructions which would have given him the benefit of the ad Vances made by him, if any. We are of opinion that in refusing
