82 A. 715 | N.H. | 1912
The substance of the complaint set up in the bill, as explained in argument, is that the plaintiffs bought of the administrator certain personal property and paid him therefor; that by mutual mistake as to the number of the articles sold and purchased, by which the total sum to be paid was determined, the plaintiffs paid the administrator a much larger sum than was due according to the terms of the contract, — that is, that the administrator received of the plaintiffs a large sum of money without consideration. *337
Upon the facts as claimed by the plaintiffs, the administrator obtained no title to this money and could convey none to the heirs. Whoever now holds this money is bound in equity and good conscience to return it to the owner. A count for money had and received in an action of assumpsit will furnish the plaintiffs adequate relief. Such an action in spirit and effect resembles a bill in equity and in general is maintainable whenever the defendant has obtained possession of money belonging to the plaintiff which he ought to refund, as for money paid by mistake of fact, or upon a consideration which has failed. Lockwood v. Kelsea,
If there has been a judgment of the probate court upon the administrator's account, the plaintiffs were not a party to that proceeding. The only matter thereby determined was the amount, as between the administrator and the heirs, for which the administrator should then account. The decree would not be conclusive as to matters subsequently arising. Burleigh v. Bennett,
The objection raised by the demurrer, that the plaintiffs have an adequate remedy at law, can be avoided by filing the proper count in assumpsit in aid of the bill. As in such action the plaintiffs can obtain relief upon the facts as claimed in argument, it will not be useful to take time to consider the technical accuracy of the bill, or whether upon some aspects of the case which may be proved equity will not have jurisdiction. The facts should be determined before an attempt is made to pass upon questions of law which may or may not be material. The plaintiffs have leave to amend.
Case discharged.
All concurred. *338