102 A. 310 | N.H. | 1917
This action grew out of a contract for paving-blocks made by the plaintiffs with Otto Anderson, December 29, 1909. The defendant was surety on a bond given by Otto to the plaintiffs for the faithful performance or fulfilment of the contract. Otto Anderson agreed to deliver upon the cars or upon a plot of land, leased by the plaintiffs, prior to November 1, 1910, 700,000 paving-blocks for thirty dollars per thousand; delivery to be upon the plaintiffs' written order, the plaintiffs to pay 75 per cent of the agreed price upon the acceptance of the blocks as delivered, and the balance after the blocks were laid; but in any event to pay the full price of all blocks accepted by them, by December 1, 1910. The contract further provided that, in case of Otto's failure to deliver blocks as ordered, the plaintiffs should have the right to purchase such blocks elsewhere at Otto's expense. Otto shipped all the blocks ordered. He also delivered on the leased land other blocks. From time to time Otto furnished the plaintiffs memoranda made up from his cutters' returns of the blocks so delivered. These were accepted by the plaintiffs, and payment made in accordance with the contract. Before any payments were made, Otto directed them to be made to the defendant, and all payments were made by check to the defendant, who used all the money in Otto's business, retaining none for his own use. Otto did not furnish 700,000 blocks before November 1, and the plaintiffs did not order that number, as the contract required they should. Sometime after December 1, the parties adjusted the matters under the contract, and the bond was returned to the defendant, and destroyed. At the time of this settlement it was understood that Otto had delivered on the leased land 138,100 blocks besides those which had been shipped. On these blocks in accordance with the contract the plaintiffs had paid 75 per cent of the purchase price, and were then obligated to pay the balance, but by agreement between them and Otto, they paid him five dollars more per thousand for the 138,100 blocks, and retained two dollars and fifty cents per thousand for expense of loading and shortage until the blocks should be shipped on the cars the following spring. Upon this basis the accounts between the parties were computed, and a balance of $1,046.39 found to be due Otto, and a check for that sum was made out to the defendant, and delivered to him. This payment was made January 25, 1911. In loading the blocks upon the cars in the following September, a shortage of 44,714 blocks was discovered. As the two dollars and fifty cents per thousand reserved for that purpose was insufficient *480 to meet a deficit of this extent, the plaintiffs brought this suit against the defendant, and claimed to recover the overpayment: first, in action of debt on the bond; and second, in a count in assumpsit for money had and received. Under the count in debt the plaintiffs state their claim as follows: (1) "The bond is valid despite its destruction under a mistake of fact. . . ." (2) "The contract secured by the bond was broken. That contract was a severable contract to supply as many of 700,000 blocks as were duly ordered. . . . Under that contract, then, as secured by the bond, Otto Anderson owed the plaintiffs 604,000 blocks. To the extent of Otto's default the defendant is liable to plaintiffs on the bond."
Conceding these positions to be well taken, the case furnishes no evidence upon which to rest a judgment against the defendant upon the bond. Conceding that there was a failure to furnish 44,714 blocks, so as to constitute a breach of the bond, there is no evidence that such breach damaged the plaintiffs, or any claim that such shortage was an injury to them. The contract gave the plaintiffs the right in case of such shortage to purchase the blocks elsewhere at Otto's expense. The defendant's liability was to make up the excess between the price paid and the contract price. If the plaintiffs secured all they wanted at less than the contract the breach was a benefit, not a damage to them. In the absence of any evidence of damage recoverable under the bond, it is not useful to discuss the possibility of recovery, if damage were shown.
The parties gave up the bond because the delivery of paving-stones under the contract secured by it was understood to be at an end. Absence of error in computation and settlement of their mutual accounts was not secured by the bond. If such had been understood to be the purpose of the bond, the exact phraseology of which does not appear, the plaintiffs would not have surrendered the document until the verity of their accounting had been demonstrated. The plaintiffs' obligation was to pay upon the acceptance of the blocks, the amount to be computed upon the count on the land, or aboard the cars. The bond was not, so far as appears, made to secure accuracy of count in either party. The plaintiffs could compute the number of blocks themselves before paying for them, or take Otto's account. They chose to take Otto's account, and settled on that basis. For this the defendant is not responsible.
The plaintiffs further contend that they are entitled to recover on their count for money had and received for the overpayment *481
which they made, because such payment was caused by a mistake between the plaintiffs and Otto Anderson in settling their accounts. An action for money had and received "is an equitable action and may, in general, be maintained whenever the defendant has money belonging to the plaintiff which in equity and good conscience he ought to refund to him." McDonald v. Insurance Co.,
The case of Merchants' Insurance Co. v. Abbott,
The defendant was not a party to the settlement between the plaintiffs and Otto; he received the money paid him by plaintiffs in good faith, and applied it to debts of Otto. He obtained title to the money rightfully, and cannot be required to repay it to the plaintiffs.
Exception overruled: judgment for defendant.
All concurred.