67 Me. 470 | Me. | 1878
This action is brought by N. Wilson, in the name of the plaintiff, as assignee or pledgee of the claim in suit. It
Undoubtedly the plaintiff' can maintain an action for the fraud of the defendant in procuring the surrender of the note without payment. It might maintain an action of case for the fraud, or of trover for the note. In either case the statute of limitations would commence to run from the time the fraud was discovered, or might have been discovered in the use of due diligence by tbe plaintiff. And if by the fraud the defendant procured money, or its equivalent, the tort may be waived by the plaintiff, and assumpsit for money bad and received maintained.
Did tbe defendant by procuring the surrender of hi s own note then overdue without payment receive the equivalent of money t
It has been repeatedly held that where a debtor procures a disr charge of bis debt by payment, in whole or in part, in counterfeit money, an action for money had and received may be maintained for tbe amount of the payment thus made, the plaintiff first tendering back tbe counterfeit money received. So an agent who dischai’ges a debt due to Ms principal by taking a note payable to-himself, may be held for money had and received, though tbe note is unpaid. Floyd v. Day, 3 Mass. 403. Hemenway v. Bradford, 14 Mass. 121. Hemenway v. Hemenway, 5 Pick. 389. Fairbanks v. Blackington, 9 Pick. 93.
In Perry v. Swasey, 12 Cush. 36, the maker of a note released to a third person a claim against him to an amount equal to the note, upon the promise of such third person to pay and take up the note. In discussing the question whether the holder of the note could maintain an action for money had and received against such third person, Shaw, C. J., in delivering the opinion of the court says: “We are strongly inclined to the opinion that the plaintiff is entitled to recover on the money counts, as for money had and received. Hall v. Marston, 17 Mass. 575. Mrs. Harvey placed money in the hands of the defendant for the use of the plaintiff. .... The discharge of a debt due in money is, for many purposes, equivalent to a payment in cash. One who has collected the debt of another, by taking a note in his own name, is liable as for money had and received.”
In Stuart v. Sears, 119 Mass. 143, the plaintiff was induced to allow the defendant in part payment of the sum due from him, a credit of $1000 in the settlement of their accounts, by the presentation by defendant of a false voucher therefor. It was held that the plaintiff might recover the $1000 under a count for money had and received, the court treating the allowance of the ■credit by plaintiff as money paid by him and received by the defendant. See Ames v. York National Bank, 103 Mass. 326. Baxter v. Paine, 16 Gray, 273.
In Hall v. Huckins, 41 Maine, 574, the defendant was indebted to the States of Maine and Massachusetts for the stumpage of certain timber. He claimed that the plaintiffs should pay him the amount, and in a settlement with them charged them the amount
After a careful consideration of the question, we feel clear, both on principle and authority, that fraudulently procuring the surrender and cancellation of the note by the defendant, without payment, was equivalent to the receipt by him of the money due upon it. The note was for money. It was overdue. If the defendant had paid it, and then by the same fraud had procured the money to be paid back, there could be no question. But to both parties it would be substantially the same as procuring the note.
The action is maintainable under tbe count for money had and received for fraudulently obtaining the note without payment, and the same rule of limitation applies that is applicable to an action for the fraud. Upon the report of the referee the plaintiff
Exceptions sustained. Report recommitted.