Payson v. Whitcomb, 32 Mass. 212

Payson v. Whitcomb

32 Mass. 212 | Mass. | 1834

Wilde J.

delivered the opinion of the Court. The defendant moves for a new trial, and also in arrest of judgment; but it does not appear to us that there is any sufficient ground ,on which either of these motions can be sustained. The instructions to the jury were clearly correct.

In support of the motion in arrest it is objected, that the special counts are insufficient, and that the evidence does not support the count for money had and received. We are, however, of opinion, that the count for money had and received is well sustained by the evidence, and that the plaintiff is entitled to judgment on that count. As all the counts are for the same demand, the verdict, though general, may be applied to the good count.

The objection, that no money has teen received by the *216defendant, and therefore an action for money had and received will not lie, cannot be maintained. It is sufficient that the defendant has received money’s worth, and that at tne time the action was commenced, he was indebted to the plaintiff in the sum claimed, which was then due and payable in money. For there can be no doubt, as Chief Justice Sewall remarks, in the case of Young v. Adams, 6 Mass. R. 189, that for a sum of money, which has become due upon a promissory note or bill, an action against the promisor, for money received to the use of the promisee in the note or bill, may be maintained. So an indorsee of a promissory note payable to order, or the bearer of a note payable to bearer, may maintain an action in the same form against the maker. Grant v. Vaughan, 3 Burr. 1516 ; Dimsdale v. Lanchester, 4 Esp. R. 201. It is immaterial what is the consideration of the note, if it is a valid security for a debt due payable in money. This is now a familiar principle. The cases of Dutch v. Warren, 2 Burr. 1011, Randall v. Rich, 11 Mass. R. 494, and Floyd v. Day, 3 Mass. R. 403, establish the same general principle.

But it has been argued, that as the note was payable at a place certain, it was necessary for the plaintiff to prove a demand of payment at that place. Whatever may be considered the law in England on this point, it has been settled in this Commonwealth, that no such demand is necessary. The question was fully discussed and considered in Carley v. Vance, 17 Mass. R. 389. It was incumbent on the defendant to show, by way of defence, that he was ready to pay at the time and place specified in the note.

Judgment on the verdict on the count for money had and re eeived