Muir v. Rand

2 Ind. 291 | Ind. | 1850

Smith, J.

Assumpsit by Rand against Muir, on the

common counts, for money had and received. Plea — • non-assumpsit. Verdict and judgment for the plaintiff for 101 dollars.

It appeared, by the evidence, that Rand, who had been guardian for a minor, one Logsden, had resigned his trust and Muir had been appointed his successor. In a settlement with Muir, as such successor, it was found that Rand had in his hands 280 dollars belonging to said minor, and, by mistake, executed to Muir his note for 380 dollars; and that Muir immediately after the settlement received from Rand, as a payment of his indebtedness, notes of other persons to the amount of 380 dollars. Muir proved, upon the trial, that two of the notes so transferred to him were still in his hands uncollected, but it was agreed that they were good notes and were then, and had always been, collectable.

The only evidence that any demand had been made of Muir, before the suit for the sum thus alleged to have been received by him by mistake over and above the sum he was entitled to in the notes aforesaid was, “ that Rand requested Muir, about two months ago, to settle with him in respect to an alleged mistake in the said settlement, and that Muir expressed a willingness to do so, but nothing further was then done.”

We think the jury might have inferred, from this evidence, that the necessary demand was made.

The action for money had and received is equitable in its character, and has often been sustained where no money actually passed, but something was received as money, or which was really or presumptively converted into money before suit brought. Hatton v. Robinson, 4 Blackf. 479. In this case the evidence shows that the notes given by Rand to Muir were received by the latter as money, in discharge of a supposed indebtedness, and that he might have converted them into money if he had been so disposed. There does not appear to have been any offer to return the notes or any of them to Rand.

It is objected that the defendant had no authority to receive the notes as money. But his liability to the plaintiff does not depend upon his authority as guardian to receive those .notes. That the parties were both at different times guardians merely serves to explain the transaction. The question might arise, between the defendant and his ward, whether the latter was bound by the transaction, or whether, if he should choose to disavow it on becoming of age, the taking of property and not money, as a payment of a debt due the ward, would not be at the defendant’s risk, but this can have no bearing on the present case.

D. Kelso and E. Dumont, for the plaintiff. J. Ryman, for the defendant. Per Curiam.

The judgment is affirmed with 2 per cent. damages and costs.