10 N.H. 445 | Superior Court of New Hampshire | 1839
Assumpsit for money had and received may be maintained to recover the money due upon a promissory note. It seems to have been considered, in some cases, that the reason of this is, because the note furnishes evidence that it is founded upon a pecuniary consideration. 8 Cowen’s R. 77, Hughes vs. Wheeler; 10 Johns. R. 420, Saxton vs. Johnson. There would, perhaps, be no objection to that view of the matter, if the holder was entitled to recover back the value acknowledged to have been received. But where he cannot maintain an action to recover back the consideration, even conclusive evidence that the consideration was money does not seem to be of importance. The sounder reason appears to be, because the note shows that there is a sum of money due from the maker, which may well be considered money in his hands, to the use of the payee ; or to the use of the indorsee, where the note by its terms is negotiable. It is not necessary to set forth any particular consideration, in a declaration for its recovery. This view of the subject seems to be sufficiently supported by the authorities. 15 Pick. R. 216, Payson vs. Whitcomb; 12 Johns. R. 93, Pierce vs. Crafts; 2 Stra. R. 725, Story vs. Atkins; 3 D. & E. 182, Tatlock vs. Harris; 6 Mass. R. 189, Young vs. Adams; 16 Wend. 660, Smith vs. Van Loan. The action, whether by payee or indorsee, is not to recover back the consideration, but to recover the money promised.
It has been held, also, that an action for money had and received may be sustained by the indorsee against the indorser; (12 Mass. R. 172, State Bank vs. Hurd,) and by the holder of a bill, or order, against the drawer. 3 Burr. 1516, Grant vs. Vaughan; 3 Johns. Cas. 5, Cruger vs. Armstrong. The foundation of the action in such cases is a promise to
In Childs vs. Moore, 6 N. H. Rep. 33, the drawer having revoked the order, the holder had a right to recover back the consideration; and the order was regarded as evidence that he had received money, or what was equivalent to, and to be treated as, money. There are various cases* in which an action for money had and received may be maintained, although money has not actually passed between the parties. 3 N. H. Rep. 508, Duncan vs. Richardson, and auth. cited; 7 Cowen 662.
But the instrument upon which this action is founded is not technically a promissory note. 7 Johns. R. 320, Jerome vs. Whitney; Ditto 462, Thomas vs. Roosa.
Contracts of a similar form, however, are very common: and a declaration, so far as the consideration is concerned, may be in the form of that on a promissory note, without stating the consideration specially, (5 N. H. Rep. 316,) although that had been previously doubted. 3 N. H. Rep. 300.
It was formerly held in New-York, that it was necessary to declare specially upon contracts of this character, setting forth the consideration. 3 Caines’ R. 286, Lansing vs. McKillip. But it was afterwards decided that it was not necessary to slate the particular consideration ; (7 Johns. 324.) and it is now held there, that they may be given in evidence
The case, Moses vs. Macferlan, in which Dutch vs. Warren was cited, has been doubted, (see opinion of Mr. Justice Heath in Brisbane vs. Dacres, 5 Taunt. 144; 1 E. C. L. R. 50 ;) and the latter may well share its fate in that particular. The principle upon which it is to be supported is certainly not clear. The plaintiff brought his action for one thing, and he recovered another. The contract which gave rise to it was an open, unrescinded contract, for the performance of a par
It has been thought that contracts for the payment of a certain sum, in specific articles, at a certain price, give the debtor an election to deliver the articles at the price specified, or to pay the sum in money. See 5 Wend. 397, Finney vs. Gleason. If this was the settled exposition of such contracts, although they would approach more nearly to the character of promissory notes, a declaration for money had and received would hardly seem to be applicable. But we cannot regard this as the true construction.of such contracts. 6 N. H. Rep. 159, Bailey vs. Simonds. Such is not the language of the agreement, nor, as we think, the usual understanding
There are cases where a party has a right to treat a contract as rescinded, and recover back the consideration; but Dutch vs. Warren was not of that character. If it had been, the plaintiff might have sustained his action for the whole amount paid. Thus where money has been advanced in part performance of a contract, and the party who advanced it is ready to proceed and fulfil it on his part, and does what is incumbent upon him, but the other refuses, he may consider the contract as rescinded, and recover the money back, under a declaration for money had and received, if the parties can be put in statu quo. 5 Johns. R. 85, Gillet vs. Maynard; 4 Conn. R. 350, Lyon vs. Annable; Long on Sales (Rand’s ed.) 244. So where a party receives money under a contract to apply it to a particular purpose, as in part payment of a debt, but refuses so to do, and receives payment in full. 7 N. H. Rep. 535, Fuller vs. Little. So where goods have been purchased, and the vendor refuses to deliver them. 3 N. H. Rep. 79, Danforth vs. Dewey; 12 Johns. R. 274, Raymond vs. Bearnard. So where a party refuses to perform a contract within the statute of frauds. 9 N. H. Rep. 298, Luey vs. Bundy. Where an infant rescinds or avoids his contract, by reason of his infancy, the other party may reclaim the goods he acquired by it, if they remain in his possession. 9 N. H. Rep. 447, Fitts vs. Hall. These cases sufficiently illustrate this doctrine, and it is not necessary to pursue it farther.
Assuming that the acknowledgment of value received in this instrument may be regarded as conclusive evidence of a pecuniary consideration, this contract was not rescinded. It is an open contract, still in force, but which the defendant has failed to fulfil. The rule in such cases is, that the plaintiff should declare upon the contract, unless by its perform-
But a mere duty to pay money did not exist here. The promise of the defendant was to perform a particular act. For the non-performance, the plaintiff is entitled to damages. This would be exceeding clear, if no sum had been stated in the instrument. Had the promise been to deliver certain articles of wheelwright work, the plaintiff’s counsel would probably not contend that the action could be supported. The damages would be uncertain, and the form of action altogether inappropriate. But if the sum mentioned is not money to be paid, but is merely the measure of value of the property to be delivered, it does not seem to affect the principle. In a receipt to a sheriff, for goods attached, if a value be stated, that is held to be conclusive upon the parties, because it is put there to fix the value. 3 N. H. Rep. 299, Drown vs. Smith. Perhaps in contracts to pay a certain sum in specific articles, the sum expressed is the true measure of damages. It has been held, in cases where the specific articles were to be received at a certain price, that the sum was not to be reduced because they were of less value. 5 Cowen’s R. 152, 411, Gleason vs. Pinney; 5 Wend. 393, S. C. in error; 3 Conn. R. 58, Brooks vs. Hubbard.
It is apparent, that in cases of this description the party may sustain damages beyond the sum expressed by the nondelivery of the articles. If he is confined to the sum mentioned in the note, it is only because he is entitled to recover no more in damages than the value of the property to be delivered, and that the sum mentioned furnishes conclusive evidence of that value. But this is not clear. It seems the defendant could not pay the money into court. 3 Bos. & Pul. 14, Strong vs. Simpson. If, however, it be so in this case, the writing is, still, a contract for furnishing wheelwright
It is sufficient that contracts of this character may be declared on in the manner of notes, without stating the consideration. That renders the declaration sufficiently simple, and to go beyond it tends to confusion.
In Chickering vs. Greenleaf, 6 N. H. Rep. 52, it was said, in the course of the opinion, that a note for a certain sum, payable in any property the defendant might possess after two years, would not be proper evidence under a count for money had and received, and the extended examination now made satisfies us of the correctness of the principle.
Verdict set aside.