Winkley v. Foye, 28 N.H. 513

Winkley v. Foye

28 N.H. 513 | Superior Court of New Hampshire | 1854

Bell, J.

Prima facie the action of assumpsit for money had and received puts in issue the title to the money, the ownership or property of the sum claimed, and the general issue denies the plaintiff’s title to it. And in this view the title to the sum in controversy might be in dispute here. But as the general issue embraces many grounds of defence, it is apparent that the question of title does not necessarily arise. The defendant may deny the receipt of any money, or he may allege that he received it under such circumstances that he is not accountable to the plaintiff for it. Neither of these defences raises any question as to the ownership of the money. So there are many cases where the defence rests on the ground that by the delivery of the money to the defendant the title to it became changed, and whatever might have been the previous rights of the plaintiff to the money, those rights have ceased, and he is no longer entitled to reclaim it.

Such we understand to be the defence in this case. It was not, the money I received was never yours; but you offered to pay me this money as the money of Samuel Laighton, and in payment of his debt, and I received it as his money. When it passed into my hands, it was as *518Laighton’s money, whoever might have owned it previous» ly ; and if I am accountable for it to any one, it is to him and not to you. This ground of defence impliedly admits that the money might have been the property of the plaintiff, until he paid it to the defendant, but asserts that, having paid it as Laighton’s, he cannot recover it as his own.

It seems to have been understood at the trial, on the part of the plaintiff, that the defendant asserted, that this money was never the property of the plaintiff, and the evidence of Laighton was apparently admitted on that ground; but we do not so understand the case. It was necessary for the defendant to contend that this money, at the time of the payment, was to be regarded as the money of Laighton, but there was nothing in the case which required them to contend that it was not previously the money of Winkley ; nor is there anything in the case which indicates to our minds that any such point was made. Indeed, the case expressly states that the testimony of Holmes, who says nothing as to the previous ownership of the money, was all the testimony introduced by the defendant, having any tendency to prove that the money was Laighton’s. If the case presents this matter correctly, the testimony of Laighton had no tendency to disprove the matter of defence attempted to be shown by the defendant. He endeavored to show, by proof of the plaintiff’s testimony on the former trial, that the money he paid was not his, but Laighton’s, by which we understand that it was paid as Laighton’s; while Laighton testified only that he did not furnish to the plaintiff the money that he paid to Foye. It proves nothing as to what the plaintiff testified, to show how the fact was, as to the ownership of the money before the time of the payment. The testimony of Laighton, then, was irrelevant to the matter in controversy, and should have been rejected.

But it is said a verdict should not be set aside because immaterial evidence was received, and this evidence was in this view immaterial. Evidence which has no legitimate *519bearing, may still have an unfavorable influence upon a claim or a defence. It may be calculated to excite prejudices, or raise false impressions; and in such cases its admission may furnish good ground to set aside a verdict. It is only in those eases where the testimony is immaterial in the broad sense of that term, of having no bearing, proper or improper, that the court can perceive, that they refuse to set a verdict on account of its illegal admission. That does not seem to us to be this case. The evidence had no just bearing in the case, but it was calculated to have an undue influence on the minds of the jury.

The evidence, which was rejected by the court, seems to have been inadmissible. If the money was offered to the defendant on Laighton’s account, and was left with him as such, the plaintiff had no claim to recover it back, and it was wholly immaterial to him whether the money was applied to the discharge of the debt for which it was tendered or not. There might be good grounds for not making the application, as between Foye and Laighton; and if there was not, that was a matter into which" Laighton had a right to inquire, and not the plaintiff.

New trial granted.