Tousey v. Preston

| Conn. | Nov 15, 1814

Brainard, J.

The action is a special assumpsit for money had and received by the defendant for the plaintiff’s use.

The first objection stated in the motion is, that the court admitted in evidence a certain writing therein recited. The objection to the admission of this writing is, that it does not conduce to prove the facts stated in the declaration. It is further objected, that if admitted, it proves, as it respects this action, too much ; that if it proves any thing, it proves that this action cannot be sustained ; that if any action will lie, it must be account, or an action founded on this particular and precise contract; and that thus the court ought to have instructed the jury. And the real question is, whether, that writing notwithstanding, this action can be sustained ?

One question made on the argument was, whether the writing was the origin or creation of the plaintiff’s right, or the acknowledgment of a pre-existing right ? On the part of the plaintiff it was contended, that one third of the moneys claimed by the suit was originally the plaintiff’s, and that the writing was evidence of that fact; that it was does introduced to shew that such was the case ; that the expression “ I promise to account” does ex vi termini necessarily import the acknowledgment of a pre-existing right.

For myself I do not very well see that this distinction is of much importance. But in point of construction I am inclined to think that the writing is the origin or creation of the plaintiff’s right, and not a mere acknowledgment of an antecedent right; that previous to its execution, the plaintiff had no interest in the subject; for the writing does not seem to contemplate any thing antecedent. It seems to speak altogether in the present time.

I know that it is objected that the suits contemplated in the writing could not be assigned. But a man may covenant, for a valuable consideration, to pay over a certain proportion of money which he may recover on a suit of his own. This would be no assignment of the suit or right of action. It would be a mere covenant to pay money upon a contingency.

But, be this as it may ; if the plaintiff had rights anterior to the contract, which are only recognized and regulated by it; or if they were created by it; still when once created, they must be governed by the same rules.

We must, therefore, substantially found ourselves upon the contract; and the question still recurs, what are the plaintiff’s rights and remedies under it ?

There are instances where a man may have an election of remedies. He may either have his action in damages upon his written contract for the breach of it, or he may waive his contract, and claim a sum of money which the defendant holds, the very reception of which might constitute the breach. Here the action would not be founded on the contract ; but the contract would be stated and relied on as inducement. For instance, A. receives of B. a cargo, and promises by a written contract to transport it to the West-Indies, and there vest the avails in a cargo of sugars, and on return to deliver it to A. at some port in Connecticut. B. accordingly proceeds to the West-Indies, procures a cargo of sugars, returns to New-York, there disposes of it for money, and puts it in his pocket. In such case, I see not but that A. may have his remedy on his contract ; or he may waive that, and sue for the money.

Analogous to this is the present case. If Preston was guilty of a breach of contract, as it is contended he was, Tousey might have sued him in damages; but if Preston recovered money, to which, in virtue of that contract, Tousey had a right or a claim, he might waive his remedy on the contract, and sue for his proportion of the money.

The money recovered by Preston of Samuel Beers, and respecting which the court directed the jury, proceeded out of the rights contemplated by the contract, and in which the plaintiff was interested, on the execution of the contract, if not before.

In this case, the plaintiff goes for the money ; and under the contract, not as the gist of the action, but as the inducement, and indeed sine qua non of recovery, is entitled to receive his proportion of what the defendant may have realized. The court are careful to discriminate, and give a rule by which to determine what that ought to be.

As to the action of account ; a plaintiff cannot arbitrarily waive that, and adopt another, to the essential prejudice of a defendant. But in this case, it does not appear that by waiving the action of account, (for I believe it would have lain) and bringing assumpsit, the defendant is deprived of any right, or subjected to any inconvenience. The anion is special, and well calculated to guard against any surprise upon the defendant. The court direct the jury to look to the money which Preston had actually received, to see how much he was entitled to retain before a dividend be made ; and if they found a surplus, to give Tousey his proportion according to the contract; which, I think, is not only equitable, but legal.

I would not advise a new trial.

In this opinion the other Judges severally concurred.

New trial not to be granted.