30 N.C. 243 | N.C. | 1848
The case is as follows: In 1835 the plaintiff hired from one Brooks a negro, for the sum of $16, and gave his note, with the defendant as his surety for its payment. The plaintiff was the agent of one Shelton, for whose use the negro was hired. Of this fact the defendant was ignorant, at the time the note was given, and, upon learning the truth, insisted that Brooks should give up the note to him, which was done upon Shelton assuming to pay the debt. Soon after Shelton did pay the money to Brooks. The defendant kept the note in his possession nine years, when he sent it for collection to an officer in the State of Virginia, where the plaintiff lived. The latter, upon being apprised of the fact, went to see the defendant, and told him he had expected Shelton would have paid off the note. Defendant assured him Shelton had not so done, but that he had been compelled to pay it, and looked to him for the amount. *181 Upon this representation the plaintiff paid the amount (244) claimed to the defendant, who undertook to collect it from Shelton and pay it over to the plaintiff.
To recover the amount so paid by the plaintiff to the defendant this action was brought by a warrant before a single magistrate.
The defendant moved the court to charge the jury that, as the payment by the plaintiff was a voluntary one, he could not recover it back; but if he could, it could not be done by warrant. This instruction the presiding judge refused to give, but charged the jury that, although the money was paid by the plaintiff when under no legal coercion so to do, yet if he acted under a mistake of facts, falsely represented by the defendant, he had a right to recover it back, and in this form of action.
Under the charge of the judge the jury found a verdict for the plaintiff, and judgment being rendered thereon, the defendant appealed.
To the plaintiff's recovery two objections are urged: first, that the payment by him to the defendant was voluntary, and, secondly, if he could recover, a single magistrate had not jurisdiction. The action for money had and received rests upon equitable principles, and whenever there is a privity between the payer and receiver, and the latter has received money to which the former is in justice and equity (245) entitled, the law implies a promise to pay it, and gives this action. 2 Stark. on Ev., 63. It is true that in one sense the payment by the plaintiff was voluntary. He did not pay it under duress of his person, nor did he pay it under process of law; but was it voluntary in that sense which, in law, disqualifies him to demand it back? In order to have this effect the payment must be made with full knowledge of the facts or full means of obtaining that knowledge. Waite v. Legget, 6 Con., 195;Clarke v. Dutcher, 9 Con., 674. And when the money has been paid, not with this full knowledge, and it is shown to have been unjustly paid, it may be recovered back. Chatfield v. Paxton, 2 East., 471; Pool v. Allen,
Littledale, J., in giving his opinion, states that the plaintiff "had means of knowing that the bill was drawn in Ireland, for he might have inquired of the prior endorser, but there being nothing on the face of the bill to lead him to suppose that it was drawn in Ireland, he was not bound to make any inquiry"; and the postea was delivered to the plaintiff. In the present case, not only had the defendant full knowledge of all the facts, but the plaintiff was ignorant of them, and his ignorance was founded upon the unequivocal and positive falsehood of the defendant.
But it is further objected by the defendant that if an action can be sustained upon such a transaction, a warrant cannot be sustained. The case of Ferrell v. Underwood,
PER CURIAM. Judgment affirmed.
Cited: Winslow v. Elliott,