321 Mass. 693 | Mass. | 1947
This is an action of contract for money had and received. It was tried to a jury in the Superior Court, and at the conclusion of the plaintiff’s case each party moved for a directed verdict. The judge denied the plaintiff’s motion and allowed that of the defendant. To such denial and allowance the plaintiff excepted.
The main facts are not in dispute. Previous to July 23, 1945., the date of the writ, the town of Adams maintained a cemetery commission of which Fred H. Couture, Junior, was chairman. Between August 30, 1940, and July 1, 1944, Couture received as cemetery commissioner ten bank checks totalling $1,222.50, the proceeds of which, in the main, were to be used for perpetual care and lot maintenance. Of these checks five were drawn payable to “Town of Adams,” four payable to “Town of Adams — Cemetery Department” and one payable to “Town of Adams, Cemetery Commission.” All ten checks were indorsed by Couture “Town of Adams — Cemetery Department — Fred H. Couture Jr., Chain.,” and deposited by him in the defendant bank to an
The plaintiff contends that the bank originally converted the funds in question and should now be called upon to account. We are unable to accede to this view of the case. An action for money had and received to the plaintiff’s use ordinarily lies “to recover money which should not in justice be retained by the defendant, and which in equity and good conscience should be paid to the plaintiff.” Cobb v. Library Bureau, 268 Mass. 311, 316. Here the defendant retains no funds belonging to the plaintiff. The proceeds of the checks in question have been paid.over to the proper custodian, the town treasurer. Even assuming a conversion and that this action, by amendment, were changed to one of tort for conversion, no damages other than nominal could be recovered. Pierce v. Benjamin, 14 Pick. 356, 361. Jackson v. Innes, 231 Mass. 558.
There was no error in the denial of the plaintiff’s motion and in the allowance of that of the defendant. Exceptions saved to rulings on evidence have become immaterial.'
Exceptions overruled.
