Murphy v. Dalton, 139 Mich. 79

139 Mich. 79 | Mich. | 1905

Grant, J.

(after stating the facts). Under the plaintiffs’ proofs the first contract was mutually abandoned. Even if nothing were said about the repayment of the $350 advanced upon it the law implies a promise to repay under such circumstances, and a declaration upon the common counts in assumpsit is sufficient.

The further theory of the plaintiffs is that the defendant, after receiving the money under the parol contract as advances, deliberately violated it, and sold the lumber to other parties.

In Hunt v. Sackett, 31 Mich. 18, the parties exchanged horses, one paying boot money. Plaintiff sought to recover on the common counts, without tendering back the boot money.

In Gorman v. Newaygo Circuit Judge, 27 Mich. 138, the declaration was upon the common counts. The 'defense set up a contract that plaintiff had refused to carry out. Plaintiff then filed an amended declaration setting up a breach of the contract. The court said that the contract remained open, and still in force, and that the amended declaration was the introduction of a new cause of action.

In Butterfield v. Seligman, 17 Mich. 95, there was no breach of contract. The defendant sold certain lands to plaintiff, with a special written agreement that, if a good title could not be made, he was to return to plaintiff $625. A good title could not be made. It was held that the declaration should have been based upon the special contract.

These and similar cases do not apply. If the defendant received the money of plaintiffs upon the contracts, and one was mutually abandoned, and the other repudiated by the defendant, he had money which in equity and good conscience belonged to the plaintiffs, and the law implies a promise to pay it back.- The objection is technical. It is true that plaintiffs did not lend or loan the défendant money within the strict definition of the term “loan.” More appropriate language might have been used in describing the transaction. But the parties thoroughly understood what was meant, and the defendant, by his plea and notice, is shown to have fully understood the declaration and the items in the bill of particulars. He was not, therefore, taken by surprise. Under plaintiffs’ theory and proofs the defendant has money in his hands, advanced to him, part upon a contract mutually abandoned and part upon a contract repudiated by him. If the jury believed the evidence on the part of the plaintiffs, they were entitled to recover under the principle of the following cases: Johnson v. Insurance Co., 39 Mich. 33; Phippen v. Morehouse, 50 Mich. 537; Nugent v. Teachout, 67 Mich. 571; Murphy v. McGraw, 74 Mich. 318; Ripley v. Case, 78 Mich. 126; Fitzpatrick v. Hoffman, 104 Mich. 228.

If the first contract was still in existence, and had been violated by the plaintiffs, and all the advances were made under it, then the defendant was entitled to recover. The issue was one for the jury.

Judgment reversed, and new trial ordered.

Moore, C. J., and McAlvay, Blair, and Hooker, JJ., concurred.