18 Mich. 9 | Mich. | 1869
Plaintiff sued defendant for money had and received under the following circumstances, as found by the court below.
On September 2, 1864, plaintiff gave his written consent that his son, Truman A. Spencer, who was under eighteen years, might enlist into the military service of the United States, and on the following day the son did enlist and was duly enrolled and sworn. After plaintiff had given his consent to his son’s enlistment, it was agreed between the parties that the defendant should not charge for commissions, and as the boy waá young, the plaintiff requested 'defendant to obtain the highest bounty he could for the son, and the defendant agreed to do so, and that as he was going to return the following day he would bring the bounty to the plaintiff. On September 3, defendant secured as the bounty of Truman A. Spencer (he being credited to the quota of the township of Dansville, or Ingham) the sum of $450, and on the following day paid the son five dollars of the same, and brought and paid to plaintiff $320, as the bounty for the son’s enlistment. This action is brought to recover the remaining $125. The court below found as a fact that the consent of plaintiff to let his son enlist was not upon the consideration that defendant would procure and pay over the bounty. The conclusions of law on these facts were that no recovery could be had under the special count; that the bounty belonged to the son alone, and that plaintiff could not recover at all.
We think the facts entitle plaintiff to a judgment. It is found that the agreement that defendant should" obtain the bounty and pay it over to the plaintiff was by the joint consent of all parties. It was not, so far as appears, an agreement which would have been valid in law to compel him to undertake the agency, had he seen fit to decline.
There is no room for any favorable construction of his conduct. He misrepresented the amount of the bounty, and his chances’ of concealment could only have arisen from the failure of the young soldier to come back again. It would be ridiculous to entertain the idea that this action was meant for the son’s benefit; and it does not purport to have been done by his authority.
Judgment below must be reversed, and judgment rendered on the finding for $163.13, and costs of both courts.