52 N.H. 254 | N.H. | 1872
The jury found — upon what evidence does not very well appear — that the money sent to Brown, in a draft, by the plaintiff’s attorney to pay for the land, was loaned by the plaintiff to the defendant before it was so applied, — that is, that the land was paid for with the defendant’s money, — and the deed made running to the plaintiff.
This being so, a resulting trust thereupon arose in favor of the defendant, so that at the time of the settlement he had a right to a conveyance of the land upon refunding the sum thus furnished, which a court of equity would have enforced.
Now, the most favorable view that can be taken for the defendant is, that the plaintiff’s refusal to convey the land to him under these circumstances, gives him the same rights, as to the money paid to procure the conveyance, as though it had been paid to procure the surrender of goods belonging to him, which the plaintiff had in his possession and refused to give up except upon such payment. The case may be disposed of on this view.
The question arises on the pro forma instructions to the jury. But it will be well first to look at the facts as reported in the case, and see whether any foundation was, laid for a recovery by the defendant upon the evidence. His position is, that, inasmuch as the $300 was not in fact advanced by the plaintiff, and was not due him at the time of the settlement, and inasmuch as the plaintiff refused to execute the deed unless that sum and interest were paid, he was therefore compelled to pay the money in order to get his land, and hence is entitled to recover it back on his set-off as so much money had and received by the plaintiff to his use.
The case shows that, in the settlement, the plaintiff claimed that he furnished the $300 to pay the defendant’s daughter for her interest in the land; and this the defendant then denied. At the trial, the position and claims of the parties were the same, and their testimony on this point was as conflicting as their claims. The case does not show that this claim of the plaintiff was made and insisted on in bad faith, and no evidence or facts are reported from which it is to be inferred that he did not then believe it to be well founded. So far as appears, it was a disputed matter, about which either party might have been honestly mistaken. All this goes very far to show that the payment was made voluntarily, with full knowledge of all the facts, by way of compromise ; and if this were so, the defendant cannot recover the money back. Volenti non fit injuria. Bean v. Jones, 8 N. H. 149; Peterborough v. Lancaster, 14 N. H. 382; Evans v. Gale, 17 N. H. 573; Brisbane v. Dacres, 5 Taunt. 143; Bilbie v. Lumley, 2 East 469; Atlee v. Backhouse, 3 M. & W. 633; Longridge v. Dorville, 5 B. & Ald. 117;
But the case shows further that the matter compromised was doubtful, and that the defendant received a benefit which he does not now propose to surrender. If the strict legal position of the parties be considered, it is obvious the first question at the settlement must have been, Was the plaintiff' under obligation to convey the land at all ? That depended, not upon any parol understanding or agreement of the parties, — for a trust in land could not be created in that way, — but upon whether the money paid to Brown had become the money of the defendant by loan, before it was handed over. All the evidence on that point may not be reported ; but from what does appear, — namely, that the money went directly from the plaintiff, through his attorney, to Brown, and the absence of all evidence of any note or security for it from the defendant, — it is not improbable, to say the least, that a court of equity might have found the, fact the other way, especially when it is remembered that parol evidence, to establish a resulting trust, ought always to be clear and conclusive. Page v. Page, 8 N. H. at p. 196; Farrington v. Barr, 36 N. H. 86; Moore v. Moore, 38 N. H. 382; Perry on Trusts, sec. 137, and cases cited. But however that might be, here is enough to show that a doubtful matter was compromised, without going into the inquiry at all whether the defendant’s claim for the $300 was or was not well founded. The plaintiff, on the one hand, gave up his right to litigate the question whether he was legally bound to convey the land to the defendant on any terms; and the defendant, on the other hand, gave up his right to litigate the question, upon which they were directly at issue, with respect to the payment of the $300. It is not easy to see how this differs from the ordinary case of a voluntary payment, made with full knowledge of all the facts in the compromise of a disputed, and at the same time doubtful, matter ; and I, for one, am not prepared to admit that there was any question for the jury, or that this money, when paid under the admitted facts of the case, did not become the money of the plaintiff. If it did become his money, there is nothing unconscientious in his retaining it. . See cases collected in notes to Marriott v. Hampton, 2 Sm. Ld. Cas., 6th Am. ed., 453. Upon this view, the exception to thq pro forma instruction on this branch of the case should be sustained, on the ground that it was not called for or warranted by the evidence.
But, if it be said that other evidence may have been introduced at the trial, and that the question whether the payment was voluntary was open for the jury upon all the facts, we are then to inquire whether the terms in which it was left to the jury were correct. The instruction was, “ that if the plaintiff did not pay the $300 to the defendant, as the plaintiff' in the settlement claimed he had done; and if the money received by Brown from the plaintiff for the land was understood by the plaintiff and the defendant to be a loan from the plaintiff to the defendant; and if the plaintiff took the deed to himself upon an understanding with the defendant that he should hold the legal title
It is necessary to examine this instruction with some care, and see what part of it relates to the point we are considering, — that is, whether the payment was voluntary. The fact that the money paid to Brown was understood to be a loan from the plaintiff to the defendant, had relation wholly to the right of the defendant to have a conveyance of the land in the outset, as we have seen. The understanding, as to holding the title in trust for the defendant, was incompetent to show a trust; and had it been competent, it imposed no greater obligation than that arising upon the trust created by operation of law — a matter entirely foreign to the inquiry whether the payment was voluntary or not. Laying these parts of the charge one side, what remains ? Simply this: if the plaintiff did not pay or furnish the $300, and on the settlement compelled the defendant to pay that sum by refusing to deed unless he did so, the defendant may recover it back in this suit.
What disputed question of fact was thus submitted to the jury ? I see none except this: Did the plaintiff pay the $300, as claimed by him at the settlement ? Was the plaintiff right, or was the defendant right, in regard to that transaction ? It is true, the jury were directed to say whether, by such refusal, the defendant was compelled to pay. But what additional fact were they thereby to pass upon ? That the plaintiff refused to convey unless the defendant yielded to his claim as to the $300 was not in controversy. It was admitted on all hands that, in order to get the land in the way he did, that is, by a voluntary deed from the plaintiff, the defendant was obliged to pay the $300. There is nothing in the case to show any other compulsion than this, and the instruction calls for no other. The requirement of this part of the instruction would be met if the jury found, — what was not disputed, — that the plaintiff refused to convey unless the $300 were paid. It seems to be capable of no other construction, and the jury must have so understood it. The whole, therefore, comes to this: the defendant is entitled to recover back the $300 if the jury are satisfied of two things, — first, that the plaintiff refused to deed unless he paid it, which was not in dispute; and, second, that the plaintiff did not furnish the money as he claimed he did.
Suppose, now, the plaintiff, at the settlement, honestly believed his claim to be well founded; and, further, suppose that, for the sake of having an end of dispute, he yielded some other point of equal value to a claim of the defendant, which he believed to be unfounded, which was in fact unfounded, and which the defendant at the time knew to be unfounded-: would it not still be true that he did not furnish or pay
The great fault with the instructions is, they do not go far enough. They do not point out or require any specific fact or circumstance of compulsion, or fraud, or extortion, or undue advantage, which brings the case within any known principle of law. To repeat: a voluntary payment, made by the defendant with full knowledge of all the facts, in the compromise of a disputed and doubtful matter, whereby he gains a substantial and equal advantage which he still retains, if insisted on by the plaintiff as a condition of making the deed, would furnish, according to the doctrine here laid down, a sufficient basis for recovering back the money so paid in an action for money had and received. Such a doctrine, of course, cannot' be sustained. The verdict must therefore be set aside, and
A new trial granted.
