Post v. Clark

35 Conn. 339 | Conn. | 1868

Park, J.

It is familiar law that the action of indebitatus assumpsit for money had and received lies for the recovery of money which ex equo et bono ought to be paid to the party suing for it. The law on this subject is thoroughly considered in the cases of Northrop v. Graves, 19 Conn., 548, and Cobb v. Charter, 32 Conn., 358. The principle of these cases decides the questions in controversy in this case.

It is evident that the defendant has no right in equity and good conscience to retain the money, so far as having any original claim to it is concerned. He had not the slightest demand on the plaintiff. He received the money in payment for casks that were then in his possession. They had been loaned to the plaintiff and returned to him, and although he Was not aware of the fact, still he ought to have informed himself on the subject, inasmuch as the return of the casks was not only in accordance with the contract in relation to them, but also with the line of business he was pursuing. The means of knowledge were in his possession, for his own agent had receipted for them.

But the defendant does not hope to succeed in the case by virtue of any right he had to the money. He relies wholly on the claim that the payment was voluntarily made by the plaintiff. This is a singular position to take under the circumstances. The defendant sent an officer with instruction s to attach the plaintiff’s property unless he paid immediately the sum of twelve dollars for the casks and expenses. The officer performed his duty, and the plaintiff in order .to avoid the attachment of his property paid the demand. The case finds that the plaintiff did not know that the casks had been received by the defendant, but supposed that they were lost on the way to him. He would not have paid the money if he had known this all important fact. He paid the money then without full knowledge on the subject, and the question arises was he guilty of negligence in neglecting to avail himself of the means of knowledge in his possession to ascertain the fact ?

Full and adequate means of knowledge are equivalent to knowledge itself under ordinary circumstances. Martin v. Morgan., 1 Brod. & Bing., 289; West v. Houston, 4 Harr., 170; Forbes v. Appleton, 5 Cush., 115; Sheldon v. South School District, 24 Conn., 88 ; Cobb v. Charter, 32 Conn., 364.

What means of knowledge had the plaintiff that the casks had been received ? He had sent them to the railroad station to be conveyed to the defendant, in accordance with the agreement; and the defendant says that he could have traced them into his hands. But what was there to apprise the plaintiff of this fact ? An officer comes from the defendant with a writ to attach his property, unless he immediately pays the value of the casks. The demand was equivalent to a declaration of the defendant that the casks had not been received. There was nothing whatever to lead him to suppose that the defendant was making a claim upon Mm for the value of casks already in his possession. He could not suspect this without entertaining suspicions of the defendant’s honesty. It comes with poor grace from the defendant to say that the plaintiff was guilty of laches because he believed the casks were lost on the way to him and did not suspect that he was practicing fraud upon him.

We think it is clear that the payment was made under a misapprehension of the facts and that the defendant ex equo et bono has no right to retain the money.

Tiie case might be put on another ground equally tenable for the plaintiff, but it is unnecessary to consider it.

There is no error in the judgment complained of.

In this opinion the other judges concurred.