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UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
LIBRARY
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A SELECTION OF CASES
ON THE
LAW or QUASI-CONTRACTS.
BY
WILLIAM A. KEENER,
STOKY PROFESSOR OF LAW IN HARVARD UNIVERSITY.
VOLUME II.
CAMBRIDGE :
CHARLES W. SEVER.
1889.
r
'I
Copyright, 18S8,
By "William A. Keener.
Univeraitt Pkf.sr:
John Wii.son and Son, rAMituiDOE.
CONTENTS OF YOL. II.
CHAPTER 11.
FAILURE OF CONSIDERATION.
{Continued.)
SECTION IT.
Failure of Defendant to perform Contract.
(Continued.) „
^ ' Page
c. Defendant relying on Illegality of Contract I
d. Wilfully or without Excuse 61
SECTION III.
Failure of Plaintiff to perform Condition of Contract.
a. Wilfully or without Excuse . 131
b. Performance impossible 178
c. Plaintiff relying on the Statute of Frauds 237
CHAPTER III.
BENEFITS CONFERRED WITHOUT REQUEST.
SECTION I.
Intentionally 259
SECTION 11.
Unintentionally 283
iv CONTENTS OF VOL. II.
CHA1>TEK IV.
Page
BENEFITS CONFEKKKl) AT IJEQUKST. HL T N< »T IN THE CKE-
ATION OR PERFORMANCE OF A CONTRACT 342
ClIArTER V.
RECOVERY OF MONEY PAID UNDER COMPULSION.
SECTION I.
Under Compi'lsion of Legal Process 3G1
SECTION IL
In Di>ciiakge of an Oulication 435
SECTION HI.
Undeu Dluess, Legal ou Equitable . 504
CHAPTER VI.
WAIVER OF TORT ". 572
INDEX 649
TABLE OF CASES.
Vols. I. and II.
Abbotts V. Barry
Adamson, Ex parte
Aiken V. Sbort
Albea v. Griffin
Alfred v. Fitzjames
Andrews v. Andrews
Andrews v. Hawley
Anglo-Egyptian Navigation
Rennie
Anonymous
Appleby v. Dods
Appleby v. Myers
Appleton Bank v. McGilvray
Armstrong Co. v. Clarion Co.
Arnold v. R. & B. Co.
Arris v. Stukeley
Ashmole v. Wainwright
Asprey v. Levy
Astley V. Reynolds
Atkins V. Banwell
Atkins V. Barnstable
Attorney-General v. Perry
Atty V. Parisli
Co.
Page
II. 588
37
305
II. 290
IL 342
II. 346
II. 620
532
11.61
IL 182
II. 192
430
II. 499
164
n. 573
II. 534
II. 448
II. 522
II. 264
II. 173
435
11.73
Bailey v. Bussing II. 494
Ballon V. Billings if. 129
Bank of Commerce v. Union Bank 2.36
Bank of England v. Tomkins 399
Bank of United States v. Bank of
Washington II. 379
Barrell, Ex parte II. 145
Bartholomew v. Jackson II. 270
Bartholomew v. Markwick II. 108
Batard v. Hawes II. 483
Bates V. New York Ins. Co. IL 548
Beed v. Blanchard II. 81
Bilbie v. Lumley 77
Billings V. Monmouth 209
Bingham v. Bingham 73
Rize V. Dickason 75
Page
Bleaden v. Charles
II. 439
Bloxsome v. Williams
IL7
Bond V. Aitkin
199
Bonnel v. Fouke
70
Bosanquett v. Dashwood
II. 505
Boston & Sandwich Glass Co
V.
Boston
IL 414
Bouiton V. Jones
IL 268
Boston Ice Co. v. Potter
II. 278
Boylston Bank v. Richardson
317
Bree v. Holbech
390
Bright V. Boyd
IL 291
Brisbane v. Dacres
79
Bristow V. Eastman
II. 580
Brittain i-. Lloyd
II. 443
Britton v. Turner
II. 157
Brown v. Brown
II. 645
Brown v. Hodgson
II. 435
Brown v. McKinnally
II. 626
Bruechner v. Port Chester
II. 432
Brumby v. Smith
IL 213
Buckland v. Johnson
II. 613
Buel V. Boughton
411
Campbell v. Fleming
IL 595
Canal Bank v. Bank of Albany
231
Carew v. Rutherford
IL 550
Carnac, In re
109
Carpenter v. Northborough Bank
200
Cartwright v. Rowley
IL67
Catlin V. Tobias
II. 169
Catts V. Phalen
IL 624
Chambers v. Miller
308
Champlin v. Rowley
II. 165
Chandler v. Sanger
II. 385
Chase v. Corcoran
II. 276
Chatfield v. Paxton
77 note
Churchill v. Holt
II. 503
City National Bank v. Park Bank
II. 639
Claflin V. Godfrey
131
Xll
TABLE OF CASES.
Taok
ClaraiKC r. Marshall
IL 693
Clare r. Lamb
379
Clark v. I'inuey
IL 377
Clarke c. Dutcher
114
Clarke i: Sliee
IL 578
Cleary c. Soliier
IL 229
Close r. riiipps
IL538
Cochran v. Wolby
5
Cocks V. Masterman
224
Collie, III re
37
Collier v. Bates
II. 247
Commerce, Bank of, i'.
Union Bank 2oG
Condon, In rt
106
Cooke I'. Munstone
IL77
Cooper V. Cooper
IL 358
Cooper V. Phibbs
96
Cork & Youghal Railway Co., In re II. 1 1
Corn Exchange Bank v. Nassau Bank 270
Cowell I'. Edwards 1 1. 4G7
Craythorne v. Swinburne II. 468
Cripps V. Reade 337
Culbreath ;-. Culbreath 153
Cutter V. Towell II. 185
Dallas, City Bank of, v. Park Bank
Davies r. Humphries
Day V. R. R. Co.
De Cadaval r. Collins
Decker r. Pope
Deering v. Winchelsea
Deery v. Hamilton
De Ilahn r. Hartley
De Medina v. Grove
Derby v. Johnson
De Silvale r. Kendall
Detroit v. Martin
Dew V. Parsons
Dibbs V. Goren
Dietz's Assignees i'. Sutcliffe
Dix V. Marcy
Doolittle V. McCuiloch
D(jwling V. McKcnney
Durrant v. Commissioners
Dutch V. Warren
Earle v. Coburn
Edmunds i'. Wallingford
Ehrcnsperger v. Anderson
Eichholz V. Bannister
Elliott V. Swartwout
Ellis I'. Hamlcn
England v. ^L■lrsden
11.
639
II.
473
503
IL
371
IL
457
IL
458
204
273
II.
376
II.
113
615
IL
418
IL
527
95
II
037
509
II
116
513
402
II. Gl
II
281
II
396
11.89
308
II
408
II
131
II
394
England, Bank of, v. Tomkins
Ezall V. Partridge
Farmer v. Arundel
Feise v. Parkinson
Ferguson r. Carrington
Fewings v. Tisdal
Pace
399
IL 389
73
187
II. 589
n. 87
First Baptist Church v. Caughey 206
First National Bank v. Mast in Bank 302
Foster c. Stewart IL 684
Foulke V. R. R. Co. IL 55
Franklin Bank v. Raymond 407
Freeman r. Jeffries 416
Freichnecht r. Meyer II. 330
Gal V in v. Prentice IL 255
Giles V. Edwards II. 06
Gillet V. Maynard IL 284
Gist V. Smith IL 517
Goddard r. Merchants' Bank 239
Goepel I'. Swinden IL 481
Gompertz v. Bartlett 401
Goodman v. Pocock II. 101
Goodnow V. Moulton II. 323
Gray v. Hill 483
Great Northern R. R. Co. v. Swaffield
II. 462
Greer ;•. Greer 489
Gritflnhoofe v. Daubuz II. 391
Griggs r. Austin 537
Guild I'. Guild IL 343
Gulliver v. Cosens II. 541
Gurney v. Womersley 363
Guthrie v. Holt II. 316
Haggerty v. McCanna II. 313
Hales r. Freeman II. 436
Ilambly r. Trott 30
Hamlet v. Richardson II. 309
Hapgood V. Shaw II. 175
Harris v. Loyd 304
Harrison v. Luke II. 85
Hasser v. Wallis II. 574
Haven v. Foster 123
Hawkins v. Brown II. 827
Hawley v. Moody 491
Ilayward v. Leonard II. 153
Hemphill v. Moody 107
Hentig i;. Staniforth II. 5
Hewer i-. Bartholomew 69
Iliggs V. Scott 195
Hill V. Perrott IL 583
Hills V. Street IL 532
TABLE OF CASES.
XIU
Hirst V. Tolson
Hitchcock V. Giddings
Hitcliin c. Campbell
Hodsden v. Ilarridge
Hoffman v. Bank of Milwaukee
Hollis V. Edwards
Ilouck's Executors v. Houck
Hubbard v. Hickman
Hulle V. Heightman
Hunt V. Silk
Irving V. Richardson
Isle Royal Co. v. Hertin
Jackson v. McKnight
James, Ex parte
Jaqucs V. Golightly
Jenkins v. Tucker
Jennings v. Camp
Johnson v. Johnson
II
Page
621
397
574
2
249
482
II. 353
413
11.67
11.72
281)
II. 819
415
106
II. 1
II. 2G0
II. 146
338
Johnson v. Royal Mail Packet Co. II. 402
Jones V. Judd II. 215
Jones V. Ryde 393
Kelley v. Lindsey
202
Kelly V. Solari
428
Kemp V. Finden
II. 479
Kilgour V. Finlyson
183
King V. Welcome
II. 251
Kingston Bank v. Eltinge
463
Kitchen v. Campbell
II. 574
Kneil v. Egleston
II. 356
Knowles v. Bovill
523
Knowlman v. Bluett
484
Lamborn v. Commissioners
II. 421
Lansdowne v. Lansdowne
72
Leather v. Simpson
226
Leigh V. Dickeson
II. 271
Liddard v. Lopes
II. 190
Lightly V. Clouston
II. 581
Lindon v. Hooper
II. 523
Livesey v. Livesey
88
London v. Goree
4
Lord r. Wheeler
n. 218
Louisiana v. New Orleans
23
Luke V. Lyde
II. 178
McArthur v. Luce
434
McCarthy v. Decaix
91
McCulloch V. Assurance Co.
188
McKleroy v. Southern Bank
246
Buck
Eagle
McManus v. Cassidy
Malcolm v. Fullarton
Manhattan Ins. Co. t
Marriott v. Hampton
Marsh v. Keating
Martin v. Sitwell
Masson v. Swan
Mathews v. Davis
Mayer v. New York
Menethone v. Athawes
Merchants' Ins. Co. i\ Abbott
Merchants' National Bank r.
Bank
Merchants' National Bank v. National
Bank
Merryweather v. Nixan II,
Metcalfe v. Britannia Ironworks Co.
II.
Milford V. Commonwealth
Mills V. Alderbury Union
Milnes v. Duncan
Morch V. Abel
Morgan v. Palmer
Morley v. Attenborough
Morville v. Tract Society
Moses V. Macferlan
Mosteller's Appeal
Munro v. Butt
Munt V. Stokes
Mussen v. Price
Page
n. 126
287
II. 230
IL 368
II. 596
182
II. 309
II. 297
283
II. 182
443
312
329
492
198
27
278
275
n. 3
II. 529
347
IL56
II. 361
II. 349
IL 139
403
IL 69
National Bank v. Bangs 256
National Permanent Building Society,
In re, H. 20
National Trust Co. v. Gleason II. 631
Neate v. Harding II. 611
Newall V. Tomlinson 458
Newport v. Saunders II. 593
New York Life Ins. Co. v. Seyms II. 230
New York Life Ins. Co. v. Statham II. 230
Nibbs V. Hall IL 526
Niblo V. Binnse II. 224
Nolan V. Manton IL 641
Northrop v. Graves 145
Oceanic Navigation Co. v. Tappan II. 561
Osborn v. Guy's Hospital II. 342
Oughton I'. Sippings II- 590
Oxendale v. Wetherell IL 137
Pacific R. R. Co. v. United States
Parcher v. Marathon Countv
II. 336
II. 429
XIV
TABLK OF CASES.
Taoe
Parker v. Great Western Railway Co.
II. 540, note
511
II. 1-15
11.86
11.79
65
Parker i-. Tainter
Panicll, In re,
Paul f. Dod
Payne v. Whale
People r. Gibbs
People V. Speir
I'erkinson v. Guilford
Pliilbrook V. lielknap
Piiillips I-. Ilonifray
Pitcher v. Turin Co.
Pitt V. Purssord
Planche i: Colburn
riatt c. Bromage
Pooley V. Brown
Powell V. Rees
Power I'. Wells
Preston v. Boston
Price V. Neal
Prickett v. Badger
Pulbrook V. Lawes
K. H. Co. I-. Commissioners
liainer c. lluddlcston
Kay r. Bank of Kentucky
Heynolds v. Wheeler
Kogers v. Walsh
Russell 1-. BcU
II
17
29
243
43
102
II. 478
11.83
405
454
35
11.61
11.406
212
II. 104
485
II. 426
II. 30G
141
II. 487
178
II. GOO
Standish v. Ross
Stanley Co. i-. Bailey
Stark I'. Parker
Steamsliip Co. i-. Joliffe
Steele r. Williams
Stevens v. Fitch
Stokes V. Lewis
Strickland c. Turner
Stuart I'. Sears
Sturgis I'. Preston
Swift Co. I'. United States
Talbot V. National Bank
Taylor v. Hare
Tew V. Jones
Thomas v. Brown
Thomas v. Richmond
Thompson v. Howard
Thompson v. Williams
Tomkins v. Bernet
Tottenham v. Bedingfield
Toussaint r. Martinnant
Towers v. Barrett
Townsend v. Crowdy
Tracy v. Talmage
Turner v. Davies
Turner r. Robinson
Turner i-. Turner
Turner v. Webster
]
Paob
451
432
II.
148
0
II.
544
II.
383
II. 259
356
300
426
II.
505
285
185
II.
603
II.
237
11.51
II.
028
II. 59
II.
504
II.
572
II.
401
11.02
291
II. :iO
II.
466
II.
138
71
II.
350
Sceva I'. True
Scholey i-. Halsey
Scholey v. Mumford
Schreve r. Grimes
Selway v. Fogg
Sharkey v. Mansfield
Shipton i". Casson
Siiove V. Webb
Simmonds, Ex jiarte
Simpson v. Nichols
Sinclair r. Bowled
Smith V. Bromley
Smith V. CuflT
Smith V. Drake
Smith I'. Mercer
Smith e*. Smith
Smout v. Illiery
Snowdon, Ex parte
Snowd(m r. Davis
Southwick r. Bank of .Memphis
Si)enke r. Richards
Spencer '-. Parry
10
II. 386
II. 558
II. 280
11.604
424
II. 133
392
109
II. 9
II. 135
11.507
II. 514
11.311
214
494
15K)
II \m
II. 400
319
1
II ill
Union National Bank v. Si.xth Na-
tional Bank 473
United States, Bank of, v. Bank of
Washington II. 379
United States v. Pacific R. R. Co. II. 336
Van Dcusen c. Blum 197
Vandyck v. Hewitt II. 2
Vaughan r. Cravens II. 305
Vaughan r. Mathews II. 009
Wakefield v. Newbon II. 5.36
Walker v. Di.xnii II. 132
Walker v. Matiiews II. 283
Waples V. United States 179
Weaver r. Bentley II. Ill
Webb V. Alexandria 172
Welch V. Goodwin 204
Weiilock V. River Dee Co. II. 23
Wheadon r. Olds 298
Whincup c. Hughes 527
White r. Continental Nalion.il Rank 470
TABLE OF CASES.
XV
White V. National Bank
Wilkinson v. Johnson
Williams v. Bemis
Williams v. Gibbes
Williams v. Hedley
Williamson, Ex parte
Wood V. Sheldon
Page
387
220
500
II. 300
II. 511
11.20
383
Wooley V. Batte
Wright V. Colls
Wright V. Newton
Youmans ?^. Edgerton
Young V. Cole
Young V. Marshall
Page
II. 493
11.95
520
439
344
II. 591
CASES ON QUASI-CONTRACTS.
CHAPTER II.
FAILURE OF CONSIDERATION.
( Continued. )
SECTION II.
FAILURE OF DEFENDANT TO PERFORM CONTRACT.
(Continued.)
(c.) Defendant relying on Illegality of Contract.
JAQUES V. GOLIGHTLY.
In the Common Pleas, Easter Term, 1776.
[Reported in 2 William Blackstone, 1073.]
Case, for money had and received to the plaintiff's use. A verdict for the
plaintiff; damages 64^. 17s. 6d. On motion for a new trial, De Grey, C. J.,
reported that on the 1st of January, 1775, the plaintiff insured many
lottery tickets in various manners at the defendant's office. The whole
amount of the premiums by him paid was 64/. 17s. 6d. Upon some of the || n^
chances the plaintiff was a loser, in more a winner. The balance due to him
"was 90/. This the defendant refused to pay, alleging that the insuring was
illegal, but insisted on retaining the premiums.
Glyn and Walker for the defendant.
Davy for the plaintiff.
De Grey, C. J. This is an application for favor by a man knowingly
transgressing. He says, and says rightly, that the insurance contract was
null and void. He has therefore a scruple in conscience not to pay the
money won by the plaintiff, "Because the play was illegal ; but he has no
scn]ple_to receive and retainThe cbnsideraITon~money. TTirink the verdict
right.
Gould, J., of the same opinion.
Blackstone, J., of the same opinion. These Lottery Acts differ from the
Stockjobbing Act, of the 7 Geo. 2, c. 8, because there both parties are made
criminal and subject to penalties ; but the losing party is indemnified from
VOL. n. — 1
VANDYCK V. HEWITT.
[chap. II.
N
those penalties in case he sues and recovers back the money lost from the
winner. It was therefore necessary in the preceding clause to give the loser
a power to maintain sucli an action. But here (on the part of the insured)
the contract on which he lias paid his money is not criminal, but merely
void; and therefore, having advanced hisj)remium without any considera-
tion, he is entitled to recover it back. Inthe case of Faikney v. Eeynous
and~ElcHardsotl,* oilff partner in IT stock-jobbing contract lent the other
ir)00/. to pay his moiety of the difierences on the rescountcr day; and
though this was pleaded to the bond, the plaintiff recovered.
Kaues, J., of the same opinion, and cited Alcinbrook v. llall,^ wherein
money lent to pay a bet at a horse-race was recovered.
Jiule discharged.
VANDYCK AND Others v. HEWITT.
V<lnA. ^TTA
In the King's Bench, November 24, 1800.
[Reported in 1 Jiast, 96. ]
The plaintiff declared upon a policy of insurance on goods at and from
London to Embden or Amsterdam, at a premium of ten guineas per cent to
return five upon their arrival at the place of destination ; with an aver-
ment that the insurance was made for the benefit of certain persons therein
\ named ; and then declared as upon a loss by capture in the course of the
voyage insured. The declaration also contained counts for money paid and
for money had and received.
The goods were shipped on board a Prussian neutral vessel, on account
partly of the plaintiffs, who were naturalized foreigners resident in London,
and partly of certain other persons, aliens, then resident in Holland. At
the trial at Guildhall the insurance itself was abandoned on the ground of
its being intended to cover ajtrading with an enemy's coimtry, Holland^
T)eing aTthe tiriie^f snch insurance in a state of hostility with this king-
dom ; and^erefore falling within the decision of the case of Potts v. Bell ; ^
lulTTt w!is contended^ that_the plaintifjs were entitled to recover back the
premium, because the policy never attached, and consequently the defcnd-
ant's risk never commenced. Lord Kenyon permitted a verdict to be taken
for the plaintiff for that amoimt, with liberty to the defendant's coimsel to
move to set that aside and to enter a verdict for the defendant. A rule
nw was accordingly obtained on a former day in this term for that purpose;
against which
Krskine, Purl;, iiiid ./. W<U~ren, now showed cause.
Jjaw and Garrow contra, were stopped by the court.
' P. 7 Oco. .1 P.. R. ' r. 0 r.po. 3 C. p.. 2 Wils. 309. ' 8 T. R, .'548.
SECT. II.] MORCK V. ABEL. 3
Lord Kenyon, C. J. There is no distinguishing this on principle from
the common case of a srnnggTing"~transaction. Where the vendor assists
the vendee hi running tlie^goods to evade the laws of the country he cannot
recover back the goods themselves or the valuej)f them. The rule has becn_
settied~aralT times, thatjwhere both par^ies_areJjtiLjaflriLt£eZ/cto,^whioh is the,
case here, potior est coriditiQjiiosudentis}.
Per Vunam, Hide absolute for the verdict to be entered for the defendant.
MORCK AND Another v. ABEL.
In the Common Pleas, February 9, 1802.
[Reported in 3 Bosamjuet Sf Puller, 35.]
This was an action on a policy of insurance effected on the 26th July,
1797, on goods on board the Juliana Maria, warranted Danish ship and
property, " at and from Bengal and all and every port or place wheresoever
and whatsoever, as well on the other side as at and on this side the Cape
of Good Hope, in port and at sea, in all places and at all times, with liberty
to touch, stay, and trade, load and unload and reload, at all and any of the
said ports and places, until the ship's arrival at Copenhagen." The dec-
laration alleged that the cargo was put on board at Calcutta in Bengal, that
the plaintiffs were interested, and that the ship and cargo were afterwards
captured " by certain then enemies of our Lord the King."
The cause was tried before Lord Alvanley, C. J., at the Guildhall sittings
after last Michaelmas term, when it appeared that the plaintiffs were sub-
jects of Denmark and resident in Copenhagen, and the ship Juliana Maria
a Danish ship ; that the cargo which was the subject of the present insur-
atice was taken on board at Calcutta on the 5th March, 1797 ; and that the
ship and cargo on the voyage from Calcutta to Copenhagen wei;e_captured
by the .brench and condemned as prize. An objection was taken to the
pTaintiff's recovery on the ground of its being illegal, under the provisions
of the 12 Car. 2, c. 18, s. 1, to export goods from Calcutta in aiiy^^hip not X
belonging to jl British subject ; and, this objection prevailing, the plaintiffs
then insisted that if the exportation from Calcutta were illegal,jthe risk
never commenced^and that the plaintiffs therefore were entitled to a return
of premium. The jury were directed by his Lordship to find a verdict for
the plaintiffs, liberty being reserved to the defendant to move that such
verdict might be set aside, and a nonsuit be entered.
Accordingly, a rule nisi for that purpose having been obtained, Shej^herd
and Best, Serjts., now showed cause.
Vaughan, Serjt., contra.
1 Le Blanc, J., delivered a concurring opinion. — Ed.
MOIiCK V. ABEL.
[chap. II.
"^^-^/(v^
'^'^'^^•■u^:
Lord Alvanley, C. J. Unfortunately this policy was effected previous
to the passing of the 37 Geo. 3 ; and though I believe that before the
passing of that statute the provisions of the navigation laws had been
relaxed in practice with respect to foreigners, still in a court of law the
plaintiffs are not entitled to recover if the trading in question contravened
the regulations of that act. The point however upon which this case comes
before the court is, whether there be any difference between this case and
tliat of Vaudyck v. Hewitt ? Undoubtedly that was a case in which the
trading was in direct violation of the common law of this country, but
before that decision took place, many of the distinctions which had been
taken between immoral and illegal contracts had been considerably shaken ;
and the principle which I think must now be extracted from the cases upon
this subject is, that no man can come into a British court of justice to seek
the assistance of the law who founds his claim upon a contravention oTthe
British laws. Let us consider then what this policy is. It is an insurance
upon a voyage from any part of Bengal to Copenhagen. The underwriter
contends, that large as the policy is, still it is the business of the assured
to take care that he takes in his cargo at some porfr in India where he may
legally do so. The assured having loaded at Calcutta, has not attended to
that restriction, "but has thereby contravened the navigation act. Capture
being one of the losses insured against, the assured has claimed an indem-
nity upon that ground : to which the British underwriter answers, you had
no right to take in your cargo at a British settlement, and therefore he
refuses to pay. The assured sets up a distinction in his own favor upon
the ground of his being a foreigner, and urges that although he may have
contravened the British laws, he has done so from ignorance only. But
even looking at the case in this point of view I do not think the plaintiff
is taken out of the general rule applicable to cases where a party enters
into an illegal contract. The case of Andr^e v. Fletcher Ms a very strong
authority, for there it was holden that a foreigner could not recover back
the premium paid on a policy whicli was illegal according to the laws of
this countr)'. The question liere is, whctlier the plaintiff, liaving contra-
vened the British laws, can recover by the aid of those laws'? and after
consideration of all the cases, I am of opinion that he cannot recover, and
that the defendjiiit is entitled to have a nonsuit entored.
IfooKE, J. I consider the point made in this case as having been decided
in the case of Andree v. Fletcher,^ and I do not see any reason to differ
from that authority. If the assured, instead of seeking to recover for a
total loss, had in the first instance stated to the underwriters that as the
cargo was loaded from Calcutta they had no right to recover upon the
policy, and therefore sought a return of premium, there might have been
some pretence for the claim which he has made : but instead of adopting
this line of conduct they have first endeavored to affirm the contract by
» 3 T. U. 266.
SECT. II.] HENTIG V. STANIFORTH. 5
making a demand for a total loss, and failing in that, they now disaffirm
the contract and seek a return of premium. But it appears to me that
they are not entitled to succeed, for having acted in defiance of the laws of
this country they shall not have the assistance of those laws to enable them
to recover.
CiiAMBRE, J. I am of the same opinion. It is perfectly settled that in
the case of an illegal contract neither party can recover from the other
money paid upon that contract ; and that rule must prevail in the present
case, unless the plaintiffs can establish a distinction in their own favor on
the ground of being foreigners and ignorant of our laws. But I think that
we ought not to relax the rigor of our great political regulations in favor of
foreigners offending against them, and that there is very little reason to
presume ignorance of a law peculiarly applicable to the subjects of foreign
states. Upon the whole therefore I am of opinion that the plaintiffs are
not entitled to recover back the premium.
Eule absolute.
HENTIG V. STANIFORTH.
In the King's Bench, May 20, 1816.
[Reported in 5 Maida <?- Selwyn, 122.]
This case was argued on a former day in this term, by the attorney-
General, Gaselee, and F. Pollock, for the plaintiffs ; and by Scarlett and
Barneioall, for the defendant. The case of Oom v. Bruce,^ was mainly
relied on for the plaintiffs ; and those of Andree v. Fletcher,^ Morck v.
Abel,^ Lubbock v. Potts,* Toulmin v. Anderson,^ Cowie v. Barber,^ Vanhartals
V. Halhed,'' for the defendants. Cur. adv. vult.
Lord Ellenborough, C. J., on this day delivered the judgment of the
court. This was an action for money had and received, to recover back
the premium that had been paid on a policy of insurance. The cause was
tried before me at Guildhall, and the fiicts as stated by the plaintiffs' coun-
sel, and which were admitted without proof, were these : The policy was
dated on the 20tli of November, and was on goods at and from~liiga to
Hulh__The_ghip, which was a Swedish ship^was chartered for the voyage ;
and by the terms of the charter-party a British license for the voj'age was
to be procured. On the 3(1 of September a letter was written and sent
from Riga to the agent ^f the assured in England, directing him to pro-
cu£e a license and to effect insurance. The letter was delayed beyond the
usual time by contrary winds, and was not received till the 5th of October.
On the 7th of October a license was obtained. The ship sailed from Riga
1 12 East, 22.5. 2 3 t. R. 266. s 3 b. & P. 35.
* 7 East, 449. 5 1 Taunt. 227. « 4 M. & S. 16.
' 1 East, 487, n.
6 HENTIG V. STANIFORTH. [CIIAP. II.
, on the 3d, It was objectcd^hat this was an illegal voyage, by the stat.
^ 12 Car. 2, c. 18, s. 8, theshijTbeing Swedish, and the goods the produced
Russia, and that the plaintiff being particeps criminis could not recover
back the premium. A verdict was taken for the plaintiff, with liberty to
the defendant to move to set it aside and enter a nonsuit. Such & motion
was accordingly made, and a rule to show cause granted, and the matter
has been argued. Upon consideration, we think the plaintiff is entitled to
recover back the premium7~ou the~principle of thedccision of Oom v.
jBmce.^ The objection is, that the contract was illegal, the voyage insured
being for the conveyance of Russian commodities from Russia to England
in a Swedish ship, and so contrary to the navigation act, 12 Car. 2, c. 18,
s. 8 ; and that the plaintiff being particeps criminis cannot recover back
the money paid on the illegal consideration. But^ before the time of this
insurance, a statute had passed enabling His Majesty to legalize such a
voyage_by license ; and in fact a license had been granted before the policy
was effected, though not until four days after the ship sailed, the ship
having sailed on the 3d of October, and the license being dated on, and
expressly made to be in force from the 7th of that month. The ship hav-
ing sailed before the license was granted, it has been decided, and rightly
so, that the policy was void. No risk, therefore, was ever incurred by the
underwriter, and if he can retain the premium he will retain it for noth-
ing. But though the license was not actually obtained until the 7th of
October, it was alwaj'S in the contemplation of the parties, that a license
should be obtained ; the charter-party provides for it, and a letter directing
it to be obtained was sent from Riga, on the 3d of September, which,
according to the ordinary course, might be expected to have arrived in
England in time for a license to be procured before the third of October,
the day of the ship's departure. If the license had been obtained before
the sliip's departure, the voyage would have been legal. The plaintiff re-
sTdlng atTroiid~had reasonable ground to suppose that tlie license would be
obtained before the ship sailed : he contemplated a legal and not an illegal
voyage. His agent in England knew that the license was obtained, but
was ignorant of the time of the sliip's dejjarture ; he also contemplated a
legal and not an illegal voyage. The illegalit}' depended upon a fact, viz.,
the posteriority of the license to the shifts departure, which was not known
to the parties, and was contrary to the ojiinion and expectation that the
pliiintiir might reasonably entertain. In tliis respect, the present case is in
principle the same as Oom v. Bruce ; there the illegality of the voyage
arose out of the commcnccmt'ut of hostilities on the p:u't of Russia, which
was a fact unknown to the yjlaintiffs when they effected the policy. It
was urged in argument, for the purpose of distinguishing the two cases,
that here the voyage was prima facie illegal, because a license was neces-
Bury to legalize it. But there is nothing of illegality apparent on the face
» 12 Kxst, 2'2r».
SECT. II.] BLOXSOME V. WILLIAMS. 7
of the policy, and as far as the plaiutifT's knowledge of the facts, coupled
with the circumstance of the expected license, appears to have extended, ho
had a right to suppose that the voyage would be legal : there was no
illegality apparent to him or to his agent. We think, therefore, that this
distinction does not exist. But the case is plainly distinguishable from all
the cases cited on the part of the defendant, wherein the return of premium
was called in question. In Toulmiu v. Anderson,^ no question on the re-
turn of premium was ever made. In all the other cases cited the voyages
were illegal ; and there was not in any one of them any state of facts, either
actually existing or supposed to exist, that could render it legal. In the
present case, a state of facts was supposed to exist, and reasonably so sup-
posed, under which, if the expectation of the parties had been realized, the
voyage would have been legal. Unfortunately for the plaintiff his expecta-
tion was disappointed, and he lost the benefit of his insurance; but he con-
templateda legal jvoyage and a legal contract. And we think, therefore,
that he is^not a party to a violation of the law, and is entitled to recover^
back his premium, asmoney paid without any consideration.
Bule to be discharged.
i.
BLOXSOME V. WILLIAMS.
In the King's Bench, Trinity Term, 1824.
[Reported in 3 Barnewall Sf Creswell, 232.]
Assumpsit for breach of the warranty of a horse, with the money counts.
Plea, non assumpsit. At the trial before Park, J., at the last Spring assizes
for the county of Berks, 1823, it appeared that the defendant was the
proprietor of a stage-coach, and a horse-dealer. The plaintiff's son was
travelling on a &unday in defendant's coach, and while the horses were
changing made a verbal bargain with the defendant for the horse in ques-
tiou for the price of thirty-nine guineagj the latter_warranted the horse
to be sound, and not more than seven years old._ The horse was delivered
to the plaintiff on the following Tuesday, and the price was then paid ;
there was no evidence to show that the plaintifFs son knew at the time I I
when he made the bargain that the defendant exercised the trade of a j | ^^
horse-dealer. The horse was unsound and seventeen years old^ It was / '
objected on the part of the defendant that the plaintiff could not r^coyer^
on the ground that the bargain, having been made on a Sunday, was void
within the 29 Car. 2, c. 7, s. 2 ; the learned judge overruled the objection,
and the plaintiff obtained a verdict for the price of the horse. A rule nisi
1 1 a vin"g"T)een olrEained in theTollowing terfn for a new trial.
W. E. Taunton and Talfourd now showed cause.
Jervis and G. R. Cross, contra.
1 1 Tauut. 227.
8 BLOXSOME V. WILLIAMS. [CIIAP. II.
Baylev, J. The statute 29 Car. 2, c. 7, s. 1 enacts, that no tradesman,
artificer, workman, colorer, or other person whatsoever, shall do or exercise
any worldly labor, business, or work of their ordinary callings upon the
Lord's day, and that every person, being of the age of fourteen years or
nj>wards, offending in the premises, shall for every such offence forfeit five
shillings. In Drury v. Defontaine * it was held that the vendor of a horse
who made a contract of sale on a Sunday, but not in the exercise of his
ordinary calling, might recover the price. I entirely concur in that de-
cision, but I entertain some doubts whether the statute applies at all to a
bargain of this description. I incline to think that it applies to manual
labor and other work visibly laborious, and the keeping of open shops.
But I do not mean to pronounce any decision upon that point ; my judg-
ment in this case proceeds upon two grounds; first, that there was noxonu
plete contracFbn tlie~Suuday, and secondly, assuming that there was, that
Itjsnnt eompetent t.nthejlefendant, who alone has been guiUy of aj)reach .
of the law, to set up his own contravention of the law as an answer to^this
action at the suit of an innocent person. As to the first point the statute
(of frauds enacts, "that no contract for the sale of goods, etc., shall be good,
except the buyer shall accept part of the goods so sold, and actually re-
ceive the same, or give something in earnest to bind the bargain, or that
some note or memorandum in writing of the bargain be made." Now in
this case there was no note in writing of the bargain, and on the Sunday
all rested in parol, and nothing was done to bind the bargain. The con-
tract, therefore, was not valid until the horse was delivered to and ac-
cepted by thccTdendant. The terms on which the sale was afterwards to
take place were only specified on the Sunday, and those terms were incor-
porated in the sale made on the subsequent day. Assuming, however,
that the contract was perfect on the Sunday, the defendant was the person
offendmg withm the meaning of the statute by exercising his ordinary
calling on the Sunday. He might be thereby deprived of any right to
sue upon a contract so illegally made, and upon the same principle any
other person knowingly aiding him in the breach of the law, by becoming
a party to such a contract, with the knowledge that it was illegal, could
not sue upon it. But in this case the fact that the defendant was a dealer
in horses was not known to the plaintiff or his son ; he therefore has not
knowingly concurred in aiding the defendant to offend the law ; and that
l»eing so, it is not competent to the defondajit to set up his own breach of
the law !W an answer to this action. If tiie contract be void as falling
I within the statute, then the jilaintiff, who is not a 2>nrtirep.<i criminis, may
' recfiver Itack liis nn)ney, because it was paid on a consideration which has
failed. For th'-se reasons I think this rule must be discharged.
HoLuoYt) and Litti.kdai.k, JJ., concurred. liule discharged.
> 1 Tamil. 131.
SECT. II.] SIMPSON V. NICIIOLLS. 9
SIMPSON V. NICHOLLS.
In the Exchequer, Hilary Term, 1838.
[Reported in 3 Meeson ^- Wclshij, 240.]
Assumpsit for goods sold and delivered, aiid on an account stated. Plea,
as to the sunTof^lSs. 6(7. , parcel, &c. actionem non, because the goods, the
price and value whereof amounted to the sum of 18.s. M., parcel of the
money in the first count mentioned, at the time of the sale and delivery
thereof, consisted of certain wines and goods, to wit, two bottles of port,
etc. ; and that the plaintitf, before and at the time of the sale and delivery
thereof, carried on the trade and business of a wine-merchant, and the said
goods were so sold and delivered by the plaintiff to the defendant on Sun-
day, the 1st day of March, 1835, and injhe way of the plaintiff's said trade
and business, and in his ordinary calling of a wine-merchant ; and the said
promise to pay the price and value thereof was made on that dayjjy the
defend^if to the plaintiff, in the way of the plaintiff's said trade and busi-
ness, etc., upon~the~sard Sunday, such sale or delivery not being a w^ork
of necessity or of charity, and contrary to the statute, etc. And that the
sum of 18s. 6cZ., parcel of the money in the last count mentioned as found
to be due from the defendant to the plaintiff, and an account whereof was
so stated as aforesaid, was so found to be due, and was and is the said sum
of 18s. 6c?., in which the defendant is supposed to be indebted to the plain-
tiff for and in respect of the said goods so sold and delivered on a Sunday
as aforesaid. Verification.'^
Replication, as to so much of the plea as relates to the said sum of 18s.
6cZ., parcel of the money in the first count mentioned, precludi non, because
although the said goods were sold and delivered by the plaintiff to the de-
fendant at the time and in the manner in the plea alleged, yet the defend-
dant, after the sale and delivery of the said goods, kept and retained the
same, and hath ever since kept and retained the same, for his own use and
benefit, without in any manner returning or offering to return the same
to the plaintiff, and thereby hath become liable to pay to the plaintifi'The
said sum of 18s. 6f?., the same being so much as the said goods were and
ai"e reasonably worth : And as to so much and such part of the plea as
relates to the said sum of 18s. Gc/., parcel of the said sum of money in the
second count mentioned, prrdiidi non, because, although the said sum of
18s. 6 J. was found to he due from the defendant to the plaintiff upon an
account stated between them, as by the defendant in that behalf alleged,
1 There was a similar plea as to 6/. Os. &d., other parcel, etc., allegiiii; that it was the
price of goods sold on Sunday, the 24th May, 1835; which was also followed by a repli-
cation, demurrer, etc., in the same terms as those stated in the text.
10 SIMPSON V. NICIIOLLS. [CHAP. 11.
yet that the said account in the second count of the declaration mentioned
was stated between the plaintiff and the defendant upon a different and
subsequent day, to wit, upon the 25th day of April, 1835, the same not being
the Lord's Day or Sunday ; and upon that accounting the defendant was then
found to be indebted to the plaintiff, and in consideration thereof then prom-
ised the plaintiff to pay him the said sum of 18s. Gd., parcel of the monies
in the second count of the declaration mentioned as aforesaid, in manner
and form as the plaintiff hath in his declaration in that behalf alleged, etc.
Special deuun-rer to the replication to so much of the plea as related to
the s;iid sum of \Ss. G</., parcel of the monies in the first count mentioned;
as.si«'uing for causes, that the replication neither traversed or denied, nor
confessed and avoided, the matters in the plea alleged ; and that the plain-
tiff had not stated or shown that the defendant made a fresh promise to
pay the plaintiff the said sum of 18s. Gd. ; and that the matters pleaded in
the replication might and ought to have been pleaded by a formal traverse
of the sale and delivery having taken place on a Sunday ; and that the
rei»lication was a departure from the first count of the declaration, and,
to have enabled the plaintiff to have recovered on the matters contained
therein, he ought to have declared specially.
To the replication, so far as it related to the I8s. Gd., pleaded to as part
of the monies mentioned in the second coimt of the declaration, the de-
fendant rejoined, denying that the account was stated on a different or
subsequent day to the Sunday on which the goods were sold and delivered
as in the plea mentioned.
The demurrer was now argued by —
Martin, for the defendant.
Ctirzon, for the plaintiff.
Lord AiJiNGER, C. B. — I think the replication is bad.
Parke, 1j. — The replication is certainly bad : for, even supposing Wil-
liams V. Paul ' to be good law (and in one point of view, which has not
been adverted to, it may perhaps be supported, viz., that though the con-
tract is illegal, being made on a Sunday, the property in the goods passes,^
although no action can be maintained for them), yet the plaintiff has not
brouglit himself within the decision in that case, which proceeded on the
ground that there was an express promise to pay, after the retention of the
gcKKls. The replication shotdd therefore have stated an express promise
by the defendant, after the retention of the goods on the Monday, and, not
having done so, it is jclearly^ bad.'
lioLLA.VD, B., and ('. i usiv. R,, ooncmred.
Judgment for the defendant.
> 6 BitiK- CiS.
' fJrct'Mc p. Ofwlfrey, 44 Me. 25; Hortou v. Buflington, 105 Mjiss. 399, accord.; Winfield
V. DwIkp, 45 Mich. 355, conrm. — Eu.
• The n-jiorters hiivc lx'»ii inforiiK'il llml Ui<y wlH' uiidcr a misconception in attribnt-
iiijj to Ikiruii I'AiiKK, in hi(> judgnicnl in the above cusc, the cxiueasiou of au opinion
SECT. II.] In re cokk and YOUGIIAL EAILWAY CO. 11
In re CORK and YOUGHAL RAILWAY COMPANY.
In Cuancery, before Lord Hatherley, L. C, and Sir G. M.
GiFFARD, L. J., August 5, 18G9.
[Reported in Law Reports, 4 Chancery Appeals, 748.]
This was an appeal from an order of the Vice-Chancellor Malins, the
question raised being as to the validity of bonds in the form called Lloyd's
bonds, given by the Cork and Youghal Railway Company.
The Cork and Youghal Railway Company was incorporated by Act of
Parliament, and empowered by several Acts to raise altogether £365,000
by shares, and to borrow altogether £131,000 upon mortgage or bond.
In April, 1861, the company had borrowed from David Leopold Lewis,
who was called the financial agent of the company, sums of money amount-
ing to £2.5,534, which had been received by the company and applied by
them partly in payment to contractors, partly in payment for rolling stock
and other goods, partly in payment of interest, partly in payment of the
salaries of the officers of the company, and partly in payment for land.
For the advances so made Lewis drew bills upon the company at short
dates, which he from time to time procured to be discounted and again
renewed by the company, charging a commission upon each renewal. The
company afterwards borrowed further sums from Lewis, for which he drew
bills in the same manner as before. In June, 1862, the whole of the share
capital of the company (except £7435 which was soon afterwards raised)
had been raised and spent ; the company had issued mortgages for the
whole of the £131,000 which they were empowered to raise ; the advances
made by Lewis to the company amounted to £101,149, and the railway
was not completed.
In August, 1862, Lewis repi-esented to the directors that he had great
difficulties in renewing the company's bills, and that if the company would
issue to him bonds in the form called Lloyd's bonds he would he able to
raise money upon them with greater facility and would be able to supply
the company with funds. At the half-yearly meeting of the company, held
in August, 1862, a statement of accounts was read and adopted, showing
that the case of Williams v. Paul, 6 Bing. 653, "might perhaps be supported" on the
ground "that though the contract was illegal, being made on a Sunday, the property in
the goods passed, although no action could be maintained for them." His Lordsliip's
argument was, that although the. contract was void, as being made on a Sunday, yet as
the property in the goods passed by delivery, the promise made on the following day to
pay for them could not constitute any new consideration ; and therefore he doubted
whether the case of Williams v. Paul could be supported in law. Reporters' note, 5 M.
and AV. 702. — El).
A
i
12 III re CORK AND YOUGIIAL RAILWAY CO. [CHAP. II.
that the company had then spent £109,520 beyond the amount authorized
to be raised by the Acts ; and resohitions were passed to the effect that, as
the company had obtained from Lewis large sums of money to pay for land,
rolling stock, and the construction of the line, the directors were authorized
to issue bonds to be given to Lewis as security for the debt due to him.
The directors accordingly issued and gave to Lewis bonds for various'
sums, amounting in the whole to £120,000, the bonds being in the
following form : —
CUUK AND YoUGHAL RAILWAY.
No. 4568. 15ond. £1000.
Know all men by these presents, that we, the Cork and Youglial Railway
Company, are held and firmly bound unto David Leopold Lewis, of No. 11,
George Yard, Lombard Street, London, Esq., in the sum of £1000, to be
paid to the said David Leopold Lewis, his certain attorney, executors,
administrators, or assigns, on the 20th day of August, 1865, with lawful
interest thereon at 5 per cent per annum from the date hereof until pay-
ment, for which payment we hereby bind ourselves and our successors this
20th day of August, 18G4.
"Whereas the above-bounden company is justly and truly indebted to the
al>ove-named D. L. Lewis in the sum of £1000 for work done and goods
and material supplied to the said company for the purposes of their under-
taking, by the means and procurement and at the cost of the said D. L.
Lewis, and at the request of the company, as they hereby acknowledge.
And whereas the said D. L. Lewis hath applied to the said company for
payment of the said sum of money, but hath, at the request of the said
company, agreed to forbear payment of the same until the 20th day of
August, 18G5, on the said company becoming bound by this application
for securing payment of the said principal sum on the day last aforesaid.
Now, therefore, the condition of this obligation is, that if the said Cork and
Youghal Railway Company, their successors or assigns, do and shall pay to
the said D. L. Lewis, his executors, administrators, and assigns, the said
sum of £1000 on or before the said 20th day of August, 1865, and do and
shall pay interest thereon at the rate of £5 per cent per annum until pay-
ment, such interest to be paid half-yearly, the first payment to be made
at tlie expiration of six calendar months from the date hereof, and for any
friction of a half-year to Vie paid on the day of payment of the said prin-
cipal sum, then the above obligation to be void, otlierwise to remain in full
force and eflcct.
Given under tho common sfal of the stiid Company the
20th day of August, 1864.
Meetings of the directors were held from time to time, and at most of
the meetinj^fH the further liabilities of the company were represented to
the directors by the secretary, and resolutions were passed requesting Mr.
SECT. II.] In re cork and youghal railway co. 13
Lewis to provide for the same. The money appeared to have been required
for different purposes connected with the railway, and in two instances at I
least Lewis was requested to find the money required for the payment of | \
specific debts due from the company to contractors. Further bonds were \
delivered to Lewis, on account of the loans made by him, to the amount of
£45,000, making a total of £165,000, and this was stated at a meeting of
the shareholders held in February, 18G.3. From time to time when the
bonds became due they were returned, and new bonds were issued in their
place. Further sums were advanced by Lewis, and the same course of
proceeding was followed until March, 18G5, when Lewis became bankrupt.
In the mean time Lewis had deposited bonds with different persons in order
to raise money on them, and ultimately it appeared that he had so de-
posited bonds to the amount nf .jP/^'^-ijOOOj and himself held bonds to the,
amount of £145,000.
~~lt appeared thatthe company always employed their owui contractors,
and that Lewis never entered into any contracts on behalf of the company,
but that in two instances the specific sums advanced by him had been at
once paid to creditors, and that in other instances he had advanced sums
to meet specified debts.
By an Act, 29 & 30 Vict. c. cxxiv., after reciting that the company might
have incurred debts to a considerable amount beyond their mortgage debt,
which they had not the means of paying, and that it would be of advantage
to the public that the company's railway should be sold to the Great
Southern and Western Eailway Company, and that the company were
desirous that their affairs should be wound up and they be dissolved, and
that the purchasing company were willing to purchase the railway for a
sum of £310,000 of the ordinary stock of the pui-chasing company, and
that claims had been made on the selling company by persons who alleged
that they were creditors of the company, the validity of whose claims was
denied by the company, and it was expedient that provision be made for
ascertaining whether and how far the claims against the company were
valid or not, — it was enacted that, in consid^iutionjaf_£31 0,000- ordinary
stock of the purchasiugcompany. the unde7-tn,king, works, etc., of the selling
company should ISe vested in the purchasing company, freed fi'om all debts
of the selling company.,^ Provisions were then made for winding up the
sellingcompany, and for tlie~ap"pointment of 'aii official liquidator, who
should administer the £310,000 stocky And it was enacted by sect. 12,
that " the net proceeds of the sale of the stock shall be applied, with the
sanction of the court, by the official liquidator as follows ; that is to say : —
" First. In payment of the costs of this Act by this Act provided to be | /v
paid by the company.
" Secondly. In payment of the compensation and expenses for com-
pleting, whether in the name of the company or in the name of the pur-
chasing company, the purchases of lands taken by the company, and of all
-S
14 In re CORK AND youghal railway CO. [chap. II.
sums which may be found due from the company with rehition to lauds for
the taking of which notice has been given by the company.
" Thirdly. In payment of the principal and interest lawfully due on the
mortgages of the company lawfully created under the powers of the com-
pany's Acts, and according to their respective rights and priorities as
existing on the 1st day of January, 1866.
" Fourthly. In payment of the costs, charges, and expenses incurred by
the company after the 15th day of March, 18G5, m and about actions and
suits and legal proceedings against them, and the negotiations between
them and the purchasing company with respect to the arrangement effected
hv this Act, and also in payment of the necessary office expenses, salaries,
and wages due at the time of such payment.
" Fiftlily. The surplus shall be subject to all the rights, equities, pri-
orities, claims, and demands, whether of preference or ordinary- shareholders,
bondholders, or others, to which the property would, in case this Act had
not been passed, have been subject, and shall be applied accordingly."
The sale to the Great Southern and Western Railway Company was
completed, and the £310,000 stock was transferred to the official liquidator,
of which, after the payments directed by the first four clauses of the 12th
section of the Act, £150,000 remained.
The official liquidator of Overend, Gurney, & Co., Limited, claimed the
benefit of this surplus in respect of bonds for £191,000 held by that com-
pany, and the official liquidator of the London, Hamburg, and Continental
Exchange Bank, Limited, claimed in respect of bonds for £40,000. Vice-
Chancellor Malins, before whom tlie applications came, made a declaration
thTit so much oflhe moneys advanced by D. L. Lewis as was secured by
iJovd's bonds and applied for the benefit of the Cork^juicl_Youghal_^il-
v^nTTT'onvpanvTconstituted a jiiBrin~eqTl1tT7"aiTd~wai"^3f^^ out of the
assets of the company before any of the sharcholdersjook any part of the
I I surplus ; and his Honor directed an inquiry how much (if any) of the money
r«A.,,<;A^./^--»4^ ^;^j^^,.^p,| ^.q j^f^^-e ij^en advanced by Lewis, and to be secured by the bonds,
was applied for the benefit of the company : and directed the costs of all
1/ parties to be taxed and paid by the official liquidator of the railway
company.
Mr. H. R. Pick, a first-class preference shareholder in the railway com-
pany (who had liberty to attend on behalf of himself and other preference
shareholders) appealed.
^fr. Jesael, Q. C, and Mr. IRffgins, for the appellant.
Mr. Jachon, for a judgment-creditor.
Mr. Roxhunjli, Q. C, and Mr. Lindley, for Overend, Gurney, & Co.
Mr. Cotton, Q. C, and Mr. Graham Hastings, for the London, Hamburg,
&c. Lank.
Mr. Pearson, Q. C, and Mr. Waller, for the official liquidator of the
SECT. II.] In re cork and youghal railway co. 15
Lord Hatherley, L. C. It appears to the Lord Justice and myself that
the order, as it now stands, is not exactly the order which the exigencies of
the case require, but that, on the other hand, it would be most improper to
hold that under and by virtue of the 12th section of the Act by which this
company has been put an end to, and has been, in eifect, bought by another
company, the money should be distributed to the shareholders without
making any provision whatever in respect of the payments that have been
made by moneys procured from Mr. Lewis. The transaction was, no doubt,
of an irregidar character. The company having expended the whole of its
capital, and reached the extent of its borrowing powers, found itself heavily
embarrassed with debts, many of which appear to have been legally pay-
al)le, being due to contractors and others for rolling stock and so forth, and
these debts the company had not the means of paying. A contention has
been raised by Mr. Jessel, against which it may not be necessary to decide
on the present occasion, but it is one which, I conceive, would not be sus-
tainable. He contends that when a railway company is formed with a
certain amount of capital, and is authorized to execute certain works, then,
unless the works can be executed with exactly the prescribed amoimt of
capital, no further work can be done at all; in other words, that no con-
tractor who has entered into an engagement to make the two or three miles
of line required for the purpose of completing the work, would be able to
recover in respect of the money, labor, and work expended by him on the
company's behalf. That, I apprehend, would not be law, and the very
point did arise in the case of White v. Carmarthen Railway Company,^
which, as far as I recollect, was not appealed from. There a contractor
was willing to give his services, and to take his chance of being paid, with
such remedies as he could insist upon by bringing an action against the
company and recovering judgment. In that case I held that the company
were authorized in giving him a bond acknowledging the amount of the
debt. On the other hand, it is equally clear, or it has been made clear if
it was not clear before, by the case of Chambers v. Manchester and Milford
Railway Corapany,^ and the very able and lucid judgments there given, that
where a company is authorized only to raise a given amount of capital by
shares, and a certain other sum by debentures or mortgages, then the
company cannot issue any debenture or loan-note, or any security of that
description, for the mere purpose of raising money, and I apprehend that
any such instrument so issued would be just as void in equity as at law,
being contrary altogether to and absolutely forbidden by statute. And I
entirely adopt the view which was taken by the learned judges in that
case, that everything in respect of which a penalty is imposed by statute
must be taken to be a thing forbidden, and absolutely void to all intents
and purposes whatsoever. Accordingly they held that the bonds in that
case, called Lloyd's bonds, were not, in effect, issued in respect of debts
1 1 H. & M. 786. 2 5 B. & S. 588.
16 In. re CORK AND YOUGILVL RAILWAY CO. [CHAP. II.
actually due, but were simply issued for the purpose of raising money, and
were instruments to which no legal validity could be attributed ; nor, as
I apprehend, could any validity be given to them in this court any more
than in a court of law. The learned judges there proceeded upon this
gruuud, tliat the Act 7 <k 8 Vict. c. 85, whilst it preserved the rights of
those who at that time had advanced money to railway comjianies on the
security of loan-notes or other instruments, proceeded to enact that from
and after the passing of that Act, any railway company issuing any loan-
note, or other negotiable or assignable instrument purporting to bind the
companv, as a legal security for money advanced to the railway company
otherwise than under the provisions of some Act or Acts of Parliament
authorizing the railway company to raise such money and to issue such
security, should for that offence forfeit a certain sum of money. The judges
held that the penalty imposed by that Act indicated plainly that the course
of procedure in respect of which the penalty was imposed was forbidden by
law, and that therefore no recovery could be had upon any such instrument
in a court of law. Of course I need hardly say that if a thing be forbidden
1 1 expressly by Act of Parliament, that Act can no more be contravened by
this coiu't than by any other court of judicature in the kingdom.
In tliat case a distinction is drawn by Mr. Justice Blackburx which
appears to me to be very plain and clear. He says ^ that these instruments
"are on their face the acknowledgment of a debt to some particular person,
with a covenant to pay it. Such instrument may be useful in this way, —
when a company are indebted it may be convenient to make a bond point-
ing to a particular portion of the debt actually due ; it would facilitate the
assignment in equity of the debt thus acknowledged to be due, and possibly
throw upon the company the onus of showing the non-existence of the debt ;
but if there be no debt existing, such an instrument cannot create one, nor
put the assignee in a better position than the original obligee or covenantee,
and the person holding it could not recover upon it if it were shown that
it were given gratuitously, or was not authorized by statute."
That being the state of the law, we have to consider the circumstances
of this particular case. It is shown, I think, that as regards some of the
moneys which have been raised through the medium of Mr. Lewis, some
small portions were paid directly to persons who were actual creditors of
the company, and solar, 1 apprehend, there_Conld be Utile or no dispute as
to the right of Mr. Lewis, or of a person claiming through him, to stand in
tl I cj)lace 6t the origmal debtor, whose debt, bemg a valid debt, had been~
so paid. ^
But with regard to the other debts, they seem to stand in this position :
As far as we can see, there were debts for which tlie company was liable ;
these debts having to be paid, and the shareholders, in truth, having full
and distinct notice that there were these debts, and that there was a large
1 5 15. & S. 611.
SECT. II.] In re cork and youghal railway co. 17
sum to be provided for, the directors proceeded to issue the bonds in ques-
tion, sanctioned, so far as it could be done, by the shareholders. I do not
think that the dii'ect and special sanction of the company, such as there
would be at meetings, would have much to do with the matter, because it
would rather depend upon the acquiescence of the company in the steps
taken, and the benefit which they derived from the money raised, than
upon any direct sanction which they could give to that which was otherwise
beyond the powers of the directors.
It appears that Lewis found the money from time to time for the com-
pany, first of all by means of bills, and then by these bonds. He stated
that he should find greater facilities in raising money by way of bonds, and
he was accordingly furnished with these instruments, acknowledging that
money was due to him for work and labor done, and with them he raised
money. The money, it is said, was applied first of all in paying off bills,
and not directly in paying off the particular debts due to Lewis, but the
bills which had been given in respect of debts, or some of them. Then
other bonds appear to have been given to pay off those bonds which had
been so applied in paying off the bills, until, ultimately, we reach the set
of bonds which are in the hands of the present holders.
Then comes the question, whether the present holders can be said to be
entitled, under any circumstances, to claim payment upon these bonds.
Now, first, it was said by Mr. Jessel that, taking these bonds at the best
as a chose in action, even taking them to be that which they really are,
a mere acknowledgment of a debt due apparently on a legitimate ground, nL
those who took them must be exactly in the same condition as Mr. Lewis, ,
the original holder, w\as in ; and, therefore, if Mr. Lewis, the original holder,
could not recover, on account of the position in which he was placed, with
a full knowledge of all the circumstances, and of the manner in which the
company had proceeded for the purpose of raising money, then no more
could the holders of these choses in action be able to recover, nor could
they be entitled to place themselves in a better position than he was in.
That would be so if as between Mr. Lewis and the company, there were
really no debt at all, or that this was all a mere sham, and that the dii-ec-
tors had not in any way borrowed the money, or authorized the borrowing
of the money, and had not been in any way parties to the transaction, or
that the company had been in no way parties to the transaction. But if
the money was really applied for the legitimate benefit of the company,
can it be possible that the company can hold this money as a surplus
which is directed to be paid to them under the Act, and treat these bonds
as constituting no debt whatever by which they are in any way to be
affected 1 They knew that there was a large sum of money which must be
raised by some means, and for which the borrowing powers and subscription
powers were not adequate ; and although the bonds themselves may not be
the £r^pejH[nstruments or mode by which that money ought to be raised,
VOL. II. — 2
18 hi re CORK AND YOUGIIAL RAILWAY CO. [CHAP. II.
still they arc iustrumcnts issued for the express purpose of inducing others
"To^give faith and credit to Mr. Lewis.^8_bein^ ji^ person to whom money
was owing for the legitimate purposes of thcjcompany. And the money
having been de facto so applied to the legitimate purposes of the company,
is it possible that the company should be allowed to derive tlic benefit of
all the expenditure which has been thus incurred, and claim the surplus
for the benclit of the shareholders'? Can the shareholders be allowed to
say to the bondholders, " It is true that the debts have been cleared off by
1 means of your money ; but you are not the persons who have cleared them
oft', and you are not to receive the benefit of it, for we are the persons to
receive the benefit " ] The proper course to be taken seems to me to be
this : that so far as the company have adopted the proceedings of their
directors by allowing these moneys to be raised on the issue of these
debentures, and so far as the money raised by the issue of the debentures
has been applied in paying off debts which would not otherwise have been
^ paid off, those who have advanced the moneys ought to stand in the place
of those whose debts have been so paid off. It is not simply that~lhe
bomTTToldcrs stand as assignees of the debts^ which no doubt have not
actually been assigned, but it has been represented by the directors that
the persons who lent their money on these acknowledgments were lending
their money for the purpose of clearing off the debts ; in fact, that they
were to be put in the position of assignees of the debts.
Therefore, what we propose to do is to make this order : Let the order of
^0 Y \ I the A'iCE-CiiANCELLOR be varied, and declare that the receipt and expendi-
ture by the directors of the company, in payment of any sums recoverable
from the company of moneys advanced on or procured by means of the
deposit of the alleged bonds, was pro tanto an adoption by the company
of the transactions ; and having regard to the representations contained in
the alleged bonds, the moneys so expended constituted debts owing from
the company. Inquire whether the company had the benefit of any, and
what, expenditure in payment of any sums recoverable from the company
of any and what sums advanced on or procured by means of any and
which of the deposits of the alleged bonds, and whether any and which of
the sums so expended still remain unpaid by the company. The costs to
be as in the original order. No costs of this application, except that the
official liquidator will take his costs out of the estate.
Sir G. M. GiFFARD, L. J. I think it of importance to state clearly in
this case that it is not intended by the court to throw the slightest doubt
on the decision come to in the case of Chambers v. Manchester & Milford
Ilailway Company ; ^ and from the course which the matter took in
the court Ijelow, I think it is also important to say that there is no
ground wliutover f(ir the argument that a contract or instrument which
fails in a court of law by reason of its illegality can nevertheless be
1 r. 15. & .^. 588.
SECT. II.] In re CORK AND YOUGIIAL RAILWAY CO. 19
enforced in equity because money lias been paid and received in respect of
that contract. Equitable terms can be imposed on a })laintiff' seeking to
set aside an illegal contract as the price of the relief he asks; but as to
any claims sought to be actively enforced on the footing of an illegal con-
tract, the defence of illegality is as available in a court of equity as it is in
a court of law ; and it is for that reascni, among others, that the declaration
made by the court below has been varied.
Now, as regards the present case, I am of opinion that the evidence was
quite sufficient to throw on the company the onus of proof that there was
fraud ; but there has been no attempt to give evidence of fraud.
That being so, what the case amounts to is this : documents were given i
under the seal of the company. Those documents represented that the
company was indebted to Mr. David Leopold Lewis in the amount there
stated ; they were given for the purpose of being deposited by him as
security for advances to be made ; and if the representations in them had
been true, those who advanced their money on the deposit would have
been assignees of the debts actually owing from the company to Lewis,
and ttie transaction would have been perfectly legal.
Now, in this case the representations in the alleged bonds are either true
or false, or partly true and partly false. In so far as they are true, the
transactions are legitimate ; for Mr. Lewis'could assign his debt or debtsT
On the other hand, in so far as they are false, there was fraud on the part
of the directors of the company. The representations on the face of the
alleged bonds purported to be representations \yf the company, Imd m-
duced the loans, and_were made in order that the loans might be obtained.
In so far, therefore, as the company has had the benefrToF those loans^for
its legitimate purposes, it must be taken to have adoptecOTie" tmnsactTom
It cannot be heard to say the contrary, and to that extent must be held
liable. For these reasons I concur in the order which the Lord Chancellor
has read.
Mr. Jessel applied for his costs of the appeal, as his client represented a
class, and had been selected in order to obtain a decision, which was abso-
lutely necessary for the administration of the estate.
Their Lordships refused to give the costs, as the appeal had only
succeeded in part.
n
<
20 In re N. P. B. BUILDING SOC. Ex parte WILLIAMSON. [chap. IL
In re NATIONAL PERMANENT BENEFIT BUILDING SOCIETY.
£x parte WILLIAMSON.
In Chancer V, before Sir G. M. Giffard, L. J., December 17, 1869.
[Reported in Law Reports, 5 Chancery Appeals, 309.]
This was a motion made by special leave of the Court of Appeal to dis-
charge au order of the Master of the Kolls, whereby the National Perma-
nent Benefit Building Society was ordered to be wound up.
The company was formed under the Benefit Societies Act, G & 7 Will. 4,
c. 32, and commenced business in February, 18G5.
The principal object of the company, as stated in the affidavit of Mr.
W. liichardson, the secretary, was to provide a safe mode of investment
for the funds of another society, called the National Savings Bank
Association.
The rules contained the usual provisions for advancing money to mem-
bers who held shares, and also contained powers of investing money in
the hands of the directors ; but there was no power to borrow money.
The prospectus, which was issued after the rules had been certified, con-
tained the following announcement : " Tlie directors have made arrange-
ments to borrow sums to be advanced to such members as desire to receive
an advance before the time for it regularly arrives, such members of course
paying interest on the sums lent, until their turn arrives."
lu September, 1865, the Building Society borrowed £400 from the
Savings Bank Association, which was forthwith advanced by the directors
of the Building Society to a member, on mortgage security ; and the mort-
gage deed was deposited with the Savings Bank, and the contributions of
the member paid into the Savings Bank. In January, 1866, the Building
Society borrowed a further sum of £900, which was applied in advances
to members, and secured in like manner. Shortly afterwards the Savings
[ Bank stopped payment, at which time they had advanced £1300 to
the Building Society. The Savings Bank Association was subsequently
ordered to be wound up.
On the 13th of July, 1867, the blaster of the Rolls made an order to
wind up the Building Society as an unregistered company under Part 8 of
the Companies Act, 1862. The order was made on the petition of the
official litpiidator of the Savings Bank Association, who claimed to be a
creditor for £1300 due to that association.
A proof for that sum was afterwards admitted against the estate of the
Ruildiiig Society, and an order for a call was made upon the contributories
for payment of it. From this order J. W. Williamson and others, who had
been settled on the list of contributories, appealed.
SECT. II.] In re N. P. B. BUILDING SOC. Ex parte WILLIAMSON. 21
When the appeal was opened before the Lord Justice Giffard, it
appeared that there was no debt due from the Building Society except tlie
£1300 on which the winding-up petition was founded; and as the ground
of the appeal was that this debt was invalid, the Lord Justice directed
notice of motion to be given to discharge the winding-up order. This
having been done, the two applications came on together.
The principal promoters of the Building Society were also promoters
of the Savings Bank Association, and J. W. Williamson and some others
of the appellants were directors or otherwise office-bearers in both
companies.
Mr. Roxburgh, Q. C, and Mr. Cottrell for the appellants.
Sir R. Baggallay, Q. C, and Mr. Iliggins for the official liquidator.
Sir G. M. Giffard, L. J. In point of form, this is an appeal from an
order of the Master of the Rolls ; but in reality, the point on which I am
about to determine this case was never brought fairly or argued before
him, and therefore the matter is very similar to an original hearing
before me.
The case, when it is examined, is a perfectly simple one; but before I go
into it I will dispose of what Sir Richard Baggallay said as to the parties
who are making this application, and as to the delay. I quite agree that
in many cases delay may be of very great importance, — especially if it has
been shown that there have been sales of property or other dealings. I
do not find in this case that anything of that description has taken place.
Then, as regards parties, the nature of the case is such that I do not
consider these parties personally disabled from bringing forward the case ;
more especially as they are not the only contributories on the list, — they
being about nine out of a number of thirty-six. But although I think the
winding-up order ought not to have been made, I certainly shall give them
no costs.
The matter itself is a very simple one. This company is what is called
a benefit building society. Until the recent decision of the court in Laing
V. Reed,-^ it was doubted whether, even if you put a limited borrowing
power among the rules of a society of this sort, that particular rule would
be legal. But what we have here is a limited benefit building society with-
out any power to borrow, and the rules and very nature of that so-
ciety show that it would he contrary to its constitution to borrow money
so as to bind the company, or to make the individual members of the com-
pany, as members, liable for borrowing money ; because the whole consti-
tution of_^Iie_aQciety-4s--tliut_Jlie members are to make certain monthly
payments, and in consideration of these monthly payments and the fines
provided by the rules, they are to receive certain loans.
After the rules had been certified and published, and the nature of the
company had been fixed, a prospectus was issued ; and by that prospectus
» L. R. 5 Ch. 4.
22 In re N. r. B. BUILDING SOC. Ex JJartc WILLIAMSON. [CIIAP. II.
the directors chose to say " that they have made arrangeraeuts to borrow
sums to be advanced to such members as desire to receive au advance
bc-forc their turn for it regularly arrives, such members of course paying
interest on the sum lent until their turn arrives." If we look at the
nature of the company, that can only amount to this : that the directors
have chosen to pledge their personal liability. It is not a statement that
the company were liable, or that any person who was a member of the
company was at all bound or was personally made liable in respect of any
debt of the company.
This being so, let us see on what ground this wmding-up order was
made. It was made upon the petition of a creditor, and in order to sup-
port that petition the petitioner must have made out that he was a
creditor, either legal or equitable ; either character would be sufficient. I
have already said that this benefit building society could not incur a debt
by borrowing money upon loan. Indeed, the contrary has har(ny~Deen
"SFgued. IT could not do so any more than a mining company or any
other of the companies which have not authority or power to bind their
members by borrowing money. There was no legal debt ; and if no legal
debt, the ne^jthiug^to inquire is^^hethei^ thejajsias an cquitabl£,debt.
A class of cases has been referred to on that subject, the principal of which
are In re German Mining Company * and In re Cork & Youghal Railway
Company,'' the latter of which was before the Lord CnAXCELLOR and myself
a short time ago ; I have no hesitation in saying that those cases have
gone quite far enough, and that I am not disposed to extend them. They
were decided upon a principle recognized in old cases, beginning with
Marlow v. Pitfield,® where there was a loan to an infant, and the money
was spent in paying for necessaries ; and in another case of a more modern
date, where there was money actually lent to a lunatic, and it went in
paying expenses wliich were necessary for the lunatic. In such cases it
has been held that although the party lending the money could maintain
no action, yet, inasmuch as his money had gone to pay debts which would
be recoverable at law, he could come into a court of equity and stand in
the place of those creditors whose debts had been so paid. That is the
principle of those cases. It is a very clear and definite principle, and a
principle which ought not to be departed from.
Then it is said that the present case is brought within that principle.
I do not think it necessary to go through the evidence. Suffice it to say
that there is no proof whatever that one sixpence of this money went in
payment of any clebt which was recoverable against the company. In
truth, all this money went for the purpose of loans to members of this
company! It is not for me to say whether the Savings Bank Assoclatio n
that lent the' money have or have not any right, either as against the prop-
crty of this company, which was t)2cdgcd to Them, o"r~as~against flte persons
' 1 I). M. &0. 19. 2 I, i>. .J ci, 74g z 1 p -yvins. 558.
SECT. II.] WENLOCK V. THE RIVER DEE COMPANY. 23
to whom this money Wiis^letit. If they have any such rights, they can
only be asserted by filing a bill and taking a very different proceeding from
that which has been taken here.
I am therefore of opinion that there is no legal or equitable debt. The
winding-up petition is in the nature of an execution against the company.
Whether the parties may or may not themselves be personally liable, or
however much I may disapprove of their conduct, they are not to be pi'e-
cluded from showing that the title of the creditor to sustain a winding-up
petition totally fails, as it does in this case. The consequence is that the
winding-up order, the proof of the debt, and the order for the call must all
be discharged. But, as I said before, the conduct of these parties has been
such as to disentitle them to anv costs.
BARONESS WENLOCK and Others v. THE UIVEE DEE COMPANY.
In the Court of Appeal, May 27, 1887.
\RepoHed in Law Reports, 19 Queen's Bench Division, 155.]
Application to vary the report of a special referee.
The facts were as follows : —
An action had been brought by the plaintiffs, as executors of the late
Lord Wenlock, deceased, to recover from the defendants the amount of
moneys advanced by the testator to them. The defence set up was in sub-
stance that the moneys had been borrowed by the company ultima vires. It
appeared that the testator had advanced large sums of money to the defend-
ant company. He had also paid off a previous advance of 56,000^from the ■ /
Rock Insurance Company to the defendants, taking an assignment of that MA
debt and a fresh covenant for repayment to himself by the defendants.
The judge at the trial gave judgment for the plaintiffs for the full amount
of the advances by the testator to the defendants. Upon appeal the Court
of Appeal varied his judgment, and, by order dated May 9, 1883, ordered
that judgment should be entered for the plaintiffs for the amount of 25.000^.
(that sum being the full auiQnnt whinli the company had power to borrow)
and interest, and also that in addition thereto the plaintiffs should recover
judgment for so much and so much only of the sums advanced as was em-
ployed in payment of any debts or liabilities of the company properly paya-
ble by them, and interest from the respective dates of such employment, and
that it should be referred to a special referee to inquire as to and report
the amount of the interest payable on the said sum of 25,000/. as aforesaid,
and the amount of the parts of the said sums so employed as aforesaid and
the interest thereon. On appeal to the House of Lords they affirmed the
24 WENLOCK r. THE RIVER DEE COMPANY. [CUAP. II.
decision of the Court of Appeal.^ The special referee held an inquiry
under the above order, upon wliich inquiry counsel were heard and witnesses
exainnied, and he thereupon made a report. The plaintiffs now applied to
the Court of Appeal to decide certain questions of law raised by such report,
and to vary the report in certain respects, and there was a cross application
to vary such report by the defendants. Various questions arose on the re-
port with regard to items allowed or disallowed by the referee, whicli the
plaintitis claimed to have allowed under the order of ISIay 9, 1883, but which
the defendants contended should be disallowed.
The questions raised were l)riefly as follows : —
In addition to the portions of the moneys advanced which had been
applied to tlie payment of debts or liabilities of the company existing at
the time of the respective advances, the_referee allowed, subject to the
opinion of the court, iteins in respect of portions of the moneys^advanced
which had been applied in payment of debts andJiabUitiesof the company
which arose subsequently to the respective advance^ whereas the defendants
contended that he" shoiddliave disallowed such items, and allowed only
items in respect of moneys advanced which had been applied in payment of
debts and liabilities existing at the date of the advances.
Furtlier questions also arose, as after mentioned : —
Certain debts and liabilities of the defendant company had been paid by
their bankers. The sums so paid by the company's bankers were paid to
them out of the sums advanced by the Rock Life Insurance Company or
Lord Wenlock. The plaintiffs claimed to be allowed by the referee the
amounts so paid, whether the debts or liabilities accrued before or after the
advances by the bankers or those by the Eock Company or Lord Wenlock.
A portion of the sums advanced to the defendants by the Rock Company
or by Lord Wenlock had been paid over by them to a Mr. Green, who was
a managing director and agent of the company, out of which he had made
disbursements for the company in the course of tlieir business, e. g., for
wages, work done, etc., some of such disbursements being in respect of debts
incurred before, and some in respect of debts incurred after the receipt of
the monev by Green. The plaintiffs also claimed under the order of May
9, 1883, to l>e allowed tlie amount of the sums so disbursed.
The plaintiffs further claimed to be entitled to be allowed under the order,
in .-iddition to the 25,000/. for which they had judgment as being validly
borrowed, the amount of all debts and liabilities of tlie company paid out
of that sum of 2.'>,000/.2
U'lfjhy^ Q. C. and It. O. P.. Lune, for the j)laintifrs. The terms of the or-
der of .May 9, 1883, include all debts or liabilities of the company paid out
of the advances of the j)laintiffs' testator whether existing at the date
of the lulvances or not. The doctrine of equity by which the lender or
' 10 App. rns. %:a.
' A |M»rti(iii of tlif rn.sc r<-l;itin;j to a (|ucstioii of luactice lia.s Viccii omitted. — El).
SECT. II.] WENLOCK V. THE RIVER DEE COMPANY. 25
qiiasi-leiider of money borrowed by a company ultra vires is subrogated to
the rights of a creditor of the company whose debt has been paid oft" out of
the money so borrowed, is not confined to cases where the debt was in exist-
ence at the time of the advance, but applies to all debts and liabilities of the
company paid off" out of tlie money so borrowed whether accruing before or
after the advance. The principle u^wn which this equity depends is dis-
cussed in the case of Blackburn Building Society v. Cunlift'e, Brooks & Co.,^
and in the judgments in that case there is no trace of the limitation of the
doctrine suggested by the defendants. If the company have had the benefit
of the money so advanced by its application to debts or liabilities validly
incurred by the company and which they were bound to meet, the person
wlio has advanced the money is then subrogated to the rights of the credi-
tors so paid off". The principle is that equity will follow the money, which
remains in equity the property of the quasi-lender, and wherever it can find
any security or piece of property representing the money the quasi-lender
is entitled thereto : and therefore, so far as the money has been applied for
the benefit of the company, it is to be treated in equity as existing in the
coff"ers of the company, and must be repaid, not as money borrowed, but as
money which still belongs in equity to the lender. The test is, whether the
transaction has added to the liabilities of the company, and, so far as the
advance has been applied to debts or liabilities which the company has
validly incurred, whether before or after the advance, the company's liability
is not increased.
The same principle applies to the cases where debts and liabilities of the
company were paid by the company's bankers, and the bankers were paid or
repaid the amounts so paid by them out of the moneys advanced by the
plaintiffs' testator, whether such debts and liabilities accrued before or after
the advances by the plaintiffs' testator or the advances by the bankers.
The bankers would have an equitable right to be subrogated to the rights
of the creditors so paid off, and such equitable right is a liability of the
company which would come within the terms of the order of May 9, 1883,
and the doctrine above alluded to. The same reasoning covers the sums
paid to Green out of the advances by the plaintiffs' testator. These sums
were applied to meet liabilities of the company, and the company's lia-
bilities were not thereby increased ; equity will follow the money into debts
or liabilities of the company whether its application to such debts or lia-
bilities is direct or through many hands and steps. It is further contended
that by the express terms of the order of the 9th May the plaintiffs are en-
titled to any portion of the 25,000/. validly advanced which has been
applied to the payment of debts and liabilities of the company, in addition
to their judgment for the 25,000/. as money legally borrowed.
[They cited In re Blackburn Benefit Building Society ; ^ Walton v. Edge ; ^
1 22 Ch. D. 61 ; also 9 A|ip. Cas. 857, not on this point.
2 24 Ch. D. 421. « 10 App. Cas. 33.
26 WKNLOCK V. THE KIVER DEE COMPANY. [cHAP. II.
lUackburn Benefit Duikling Society v. Cunlitle, Brooks & Co. ; ^ Knatchbull v.
HuUett.-]
Sir Horace Bavet/, Q. C. and A. 7i. Kifby, for tlie defendants. The order
of May 9, 1883, must be construed with reference to what the court may
consider to be the correct doctrine of equity as to subrogation in such cases.
It is contended that the view of the doctrine on the subject contended for
on behalf of the plaintifts is far too wide and sweeping. The argument for
the plaintifts amounts to this : viz., that the rule which forbids borrowing
money nltra vires is practically abrogated wherever it can be shown that
money so boiTOwed was appUed to the purposes of the corporation, that is
to say, that as between the directors and the shareholders it was not misap-
pHed. The doctrine of Blackburn Benefit Society v. Cunliffe, Brooks & Co.*
only applies to debts and liabilities existing at the time of the advance
which have been satisfied out of it. So far as such debts and liabilities are
concerned, it is clear that there has been no increase of the liability of the
company. It is merely a substitution of one creditor for another. Altogether
difTerent considerations arise when the money borrowed is applied to pay-
ment of a liability subsequently incurred, and which might never have been
incurred if the money had not been borrowed. The extension of the equita-
ble doctrine now sought to be made would have the most dangerous effects,
as enabling companies practically to borrow without limit.
[Lord Esher, M. R. But even if the doctrine be limited to debts pre-
viously incurred, the company have only to postpone the borrowing until
after they have incurred the liability.]
The true principle is, that there is supposed to have been an assignment
of the debt paid out of the advance to the person making the advance ;
that the quasi-lender really j)ays his money to the creditor and takes an
assignment from him of the debt ; but that supposed assignment is only
applicable to the case of debts in existence at the time of the advance. In
the previous cases on the sul)ject the question arose with regard to existing
debts.
[They cited on this point l/i re Cork and Youghal Ry. Co. ; * Iii re German
Mining Co.^]
^Vith regard to the other matters, viz., the moneys paid by the defendants'
bankers in resi)ect of debts of the company and repaid out of Lord Wenlock's
advances and the mone3's paid to Green, similar questions arise. It is con-
fiMidcd witli regard to these items that the equity relied upon by the plain-
tilfs is confined to sums directly applied by the company, or their agent,
out of the moneys borrowed, in satisfaction of existing debts or liabilities of
the comj)any. An ccpiity that the bankers might have in respect of sums
advanced by them for the payment of debts or liabilities is not a debt or
liability within the order of May 9, 1883. It is submitted, also, that the
> 2'J ('h. I). 902. 2 13 Ch. T). 096. » 22 Cli. D. 61.
* b. U. i (li. 718. «* 4 1). M. & C. 19.
SECT. II.] WENLOCK V. THE RIVER DEE COMPANY. 27
equity be to subrogated to the rights of a creditor cannot be carried beyond
persons to whom the money is directly paid in the first instance by tlie
company or their agent ; and that, unless such person is a creditor, the
equity docs not arise. Consequently the amounts disbursed by Green in
respect of debts accruing after the receipt of the money by him must be
disallowed, on the ground that, when the money was received by him,
Green was not a creditor of the company in respect of these amounts. It
would lead to endless inquiries and difficulties if the money had to be
traced through several persons to see whether it ultimately was applied to
the company's purposes.
It is clear that the plaintiffs' contention as to the debts paid out of the
25,000/. validly borrowed cannot be right, for the plaintiffs would be get-
ting the same thing twice over if it were ; and the terms of the order rightly
construed exclude such contention. The money being validly borrowed was,
when it got into the defendants' hands, the defendants' own money, and the
equity to subrogation to the rights of the creditor cannot apply, for it de-
pends on the doctrine that equity will treat the money borrowed as still re-
maining the quasi-leuder's property, which only applies when the money is
borrowed ultra vires.
Eigby, Q. C., in reply.
Cur. adv. vult.
The judgment of the court (Lord Esher, M. R., Fry and Lopes, L. J J.,)
was delivered by
Fry, L. J. The questions which now require determination in this case
arise from the application of the order of this court of May 9, 1883, to the
facts as found by Mr. Robertson, the special referee named in the order.
By that order it was directed that judgment should be entered for
25,000/. and interest, and in addition thereto for so much and so much ^ r
only of the sums advanced to the defendant company by the Rock Life As- ^
surance Company and Baron Wenlock as was employed in the payment of ^
any debts or liabilities of the defendant company properly payable by them, ^
with interest from the respective dates of such employment. It appears y
that some of the moneys were applied in payment of debts and liabili-^
ties properly payable by the company at the date of the advances, and^
some in payment of debts and liabilities which arose or became properly'^
payable at dates subsequent to the advances. The defendants contend that'
only the advances employed in payment of debts and liabilities actually
payable at the date of the advance can be brought within the operation of
the direction in the order. The plaintiffs contend that all these advances
are within the direction, and that the date of the accruer of the liability is
i mmaterial. We are of opinion that the plaintiffs' contention ought to pre-
vail. We are not at liberty to travel beyond or review the declaration
contained in the order of May 9, 1883, which is binding on us not only as
a decision of this court but by reason of its affirmation by tiie House of Lords :
28 WENLOCK l". THE EIVER DEE COMTANY. [CIIAF. II.
aiul in our opinion the order rightly bears the wider construction. It is
silent as to any limit of time within which the liabilities are to accrue, or
within which they are to be paid : and by fixing the respective dates of the
employment of the sums as the periods of time from which interest is
to run, it seems to indicate that the date of the employment and not of the
advance is the material one. If the court had intended any such limita-
tion of the inquiry as that now contended for by the defendants, we think
that it would have found expression, if not in the formal order, at any rate
in the oral judgments, but we can lind no trace of it.
IJut we go further and say that in our judgment the equity in question
knows of no such limitation as that suggested. This equity is based on a fic-
tion, which like all legal fictions, has been invented with a view to the further-
ance of justice. The court closes its eyes to the true facts of the case, viz.,
an advance as a loan by the quasi-lender to the company, and a payment
by the company to its creditors as out of its own moneys ; and assumes on
the contrary that the quasi-lender and the creditor of the company met
together, and that the former advanced to the latter the amount of his claim
against the company and took an assignment of that claim for his own bene-
iit There is no reason that we can find for supposing tliat this imaginary
tninsaction between the quasi-lender and the creditor was confined to the
day and hour of the advance of the money to the company ; in the coffers
of the company the money really advanced as a loan is still thought of by
the court as the money of the quasi-lender ; and the court, as the author
of the benevolent fiction on which it acts, can fix its own time and place for
the enactment of the supposed bargain between the two parties who have
met and contracted together only in the imagination of the court. The
true limit of the doctrine we conceive to be stated by Lord Selborxe, L.C,
in delivering the judgment of this court in the case of the Blackburn Build-
ing Society v. Cunliffe, Brooks & Co.^ "■ The test," said he, "is, has the
transaction really added to the liabilities of the company ] If the amount
of the company's liabilities remains in substance unchanged, but there i8~
merely lor the convenience of j)avmcntjt_change of the creditor, there is no
substantial borrowmg in the result, so far as relates to the position of the
company. Regarded in that light, it is consistent with the general princi-
ple of equity that those who pay legitimate demands which they are bound
in some way or other to meet, and have had the benefit of other people's
money advanced to them for that purpose, shall not retain that benefit so
as, in substance, to make those other peojile pay their debts. I take that
in be a principle sufficiently sound in equity : and, if the result is that by
the transaction which jissumes the shape of an advance or loan nothing is
really added to the liabilities of the company, there has been no real trans-
gression of the principle on which they are jirohibited from borrowing."
Now the payment of honn Jul*' liabilities arising or accruing subsequently
• 2'J ri,. I). Cl, at !•. 71.
SECT. II.] WENLOCK V. THE RIVER DEE COMPANY. 29
to the actual date of the advance lias in no way really added to the liabili-
ties of the company, and therefore in no way transgi"esses the boundaries of
the doctrine as laid down by this court in the case to which we have re-
ferred. Sir Horace Davey forcibly warned us of the danger of the proposi-
tion which we have laid down, and said that it would afford to companies a
facile means of evading the limit of their borrowing powers. But the dan-
ger appears to us imaginary. We do not think that capitalists will be
found knowingly and willingly to advance money in the hope of recovering
it on the ground of some future subrogation to the future rights of some
future creditor. The doctrine has rarely, if ever, done more for any one
than snatch a few brands from the burning. In the present case the utmost
extension of the doctrine will leave the plaintiffs heavy losers.
The next question arises in this way. Certain creditors of the company
were paid by the bankers of the company ; these bankers were paid by the
advances of the Rock Company or Lord Wenlock : are the plaintifis en-
titled to be subrogated to the rights of these creditors % It appears to us
that they are entitled to be so subrogated ; that the right of the bankers,
which they obtained by subrogation from the creditors whom they paid,
was an equitable liability of the company ; and that for the purposes of this
inquiry it is immaterial whether the rights of the creditors accrued before
or after the advances by the bankers, or the Rock Company, or Lord
Wenlock.
A similar question w^as discussed as to a Mr. Green, who was a managing
director and agent of the companj^ and to whom payments were made by
the company out of which he made disbursements for the company. It
was argued that the inquiry must stop at the first payment by the com-
pany. But we can find no ground for this contention. To follow the
money into a debt or liability of the company does not add to the liabilities
of the company, whether that pursuit be through one or more hands and
by one or many steps.
It is conceded that under the order of May 9, 1883, the plaintiffs are en-
titled to the 25,000Z. and to so much of the sums advanced beyond the
25,000/. as was expended in satisfaction of the debts and liabilities of the
company. The plaintiffs contend that they are entitled, in addition to all
this, to so much of the 25,000/. itself as was so expended. They contend
that this is given to them by the express terms of the order, and that the
point, therefore, is not open to further consideration. We do not so read
the order; for it appears to us that the 25,000/. is dealt with separately,
in the first place, and that the rest of the order deals with sums in every
respect outside of and beyond the 25,000/. The words in the order " in ad-
dition " exclude, in our opinion, all further consideration both of the borrow-
ing of the 25,000/. and of its application. And in our opinion this is right
in point of reason and principle : for the 25,000/., having been validly bor-
rowed, became part of the moneys of the company as much as the original
30 TRACY V. TALMAGE. [CHAP. II.
subscriptions of the members or the produce of sales of its lands ; and no
a])plication by the company of its own moneys to the payment of its own
debts can be conceived of as a transaction between a quasi-lender to the
company and the creditors of the company, or lead to a subrogation of the
creditors' rights to the stranger. If the plaintiff's were to be subrogated
to the rights of those creditors who were paid with the 25,000/., we do not
see why they should not be subrogated to the rights of every creditor paid
by the company with its own moneys from any source whatever.
The matter must be referred back to the referee with the following dec-
larations, and the costs of the hearing, which has led to partial success and
failure on each side, must be costs in the cause. [Then followed formal
declarations as to the mode of taking the account under the order of May 9,
1883, in accordance with the principles laid down by the judgment of the
court. The substance of such declarations, so far as material to this re-
port, was that the plaintiffs were entitled to credit in respect of all debts
and liabilities of the company which had been paid out of the sums ad-
vanced by the Rock Insurance Company or by Lord Wenlock, whether such
debts and liabilities existed at the time of or accrued subsequently to the
dates of the respective advances ; that the plaintiffs were entitled to credit
in respect of all debts and liabilities of the company which, having been
paid by Messrs. Herries &, Co. (the defendants' bankers) or others, had
been paid or ultimately repaid to them out of any sums advanced by the
liock Insurance Company or by Lord Wenlock, whether such debts or lia-
bilities existed at the time of or accrued subsequently to the dates of the
respective advances by the Rock Insurance Company or Lord Wenlock, or
the dates of the payments by Messrs. Herries & Co. or others ; that the
plnintiffs were entitled to credit in respect of all debts and liabilities of the
company paid by Green out of moneys paid to him by the company,
whether such debts or liabilities existed at the time of or accrued subsequently
ti) the receipt by him of the moneys out of which he paid them ; and that
the plaintiffs were not entitled to be allowed anything in respect of debts
or liabilities of the defendants paid out of the 25,000/. validly borrowed.]
Judgment accordingly.
TRACY V. TALMAGE, Presidext, etc.
I.N TDK COUHT OF ApPEALS OF NeW YoRK, JuXE 185G.
[ne/tortrd ill 14 Neiv York Reports, 1G2.]
The Xorth American Trust and Banking Company was, in July, 1838,
organized in the city of New York as a corporation, under and by virtue of
the act " To authorize the business of banking." ^ By the articles of asso-
• Laws of 1838, 2ir>.
SECT. II.] TRACY V. TALMAGE. 31
elation the capital was $2,000,000, with power to increase the same to
$50,000,000. Tlic amount of the capital was subscribed, a small portion
thereof paid in in cash, ami the residue secured by bonds and mortgages
and stocks.
In xVugust, 1838, the company purchased $1,000,000 of Arkansas bonds,
paying therefor $300,000 in cash, and issuing certificates of deposit for
$700,000, the residue of the price payable monthly, during some fifteen
months. Of these bonds $200,000 were deposited with the comptroller of
the State as security for bank notes issued to the company, and the residue
were sent to Europe, and sold on behalf of the company to meet drafts
which it had drawn on its correspondents in London. About the 15th of
September, 1838, the company commenced receiving deposits and discount-
ing commercial paper. The company never received from the comptroller
bank notes to exceed $330,000. In January, 1839, the Trust and Bank-
ing Company purchased of the Morris Canal and Banking Company, a
corporation created by the laws of the State of Xew Jersey, but which had
an office and did business in the city of New York, bonds, ma<le by the
State of Indiana, to the amount of $1,200,000, at par, and gave therefor,
to the Morris Canal and Banking Company, its obligations, in the form of
negotiable certificates of deposit, payable with interest at a future day.
The most of these bonds were sent to the correspondents of the Trust and
Banking Company, in London, and there sold at a discount to raise funds
to meet the drafts of the company. In the fixll of 1839 the Trust and
Banking Company agreed to purchase, of the Morris Canal and Banking
Company, bonds of the State of Indiana, amounting to $1,000,000 at par,
and to pay for the same, at 98 per cent, in negotiable certificates of deposit,
made by the Trust and Banking Company, payable at a future day. This
agreement was not in writing. On or about the 28th of October-, 1839,
these bonds were delivered by the Morris Canal and Banking Company to
the Trust and Banking Company, and the latter made and delivered to the
former certificates of deposit for the amount of the purchase price. The
most of these certificates were for $1000 each. They respectively bore
date October 28, 1839, were signed by the president and cashier of the
Xorth American Trust and Banking Company, and stated that James Kay
had deposited in the bank a sum, which was named, payable to his order,
on the return of the certificate, on demand after a future day, which was
specified ; each certificate was indorsed by Kay in blank. These Indiana
bonds were sent to London by the Trust and Banking Company to be sold
to raise funds to meet its drafts and obligations payable there ; and they
were sold there at a large discount soon after the purchase. Kay, the
payee named in and who indorsed the certificates, was a clerk for the
Morris Canal and Banking Company ; he never deposited any money with
the Trust and Banking Company, and had no interest in the certificates.
On the 11th of December, 1839, a written agreement was made between
32 TRACY V. TALMAQE. [CHAP. II.
the Morris Canal and Banking Company and the State of Indiana, which
recited that the former was indebted to tlie latter for Indiana State stocks,
theretofore sold and delivered by the latter to the former, and by which
the Morris Canal and Banking Company agreed to deliver to the State of
Indiana, among other securities, certificates of deposit in the North Ameri-
can Trust and Banking Compan}- to the amount of $190,000. Subse-
quently, and during the same month, the Canal and Banking Company
transferred and delivered to the State of Indiana $190,000 of the certifi-
cates issued to it by the Trust and Banking Company under date of Octo-
ber 28, 1839, and payable after January 1st, 1841, and the same were
receipted by the State of Indiana on the back of the agreement last above
mentioned. On the 2d of January, 1841, the State of Indiana surrendered
to the Trust and Banking Company a portion of these certificates, to the
amount of $175,000, and received therefor eighteen otlier certificates of
deposit, in the aggregate, for the same amount, dated on that day, signed
by the president and cashier of the Trust and Banking Company, and
payable to the order of, and indorsed by James Kay. Five of these cer-
tificates were for $9000 each, and thirteen of them for $10,000 each.
Each stated that James Kay had deposited with the Trust and Banking
Company a sum, which was specified, and that the company engaged to
repay the holder of the certificate this sum upon the surrender thereof at a
future day named, with interest at the rate of seven per cent per annum.
Of these eighteen certificates, the one first due was payable five months
from date, and one became payable every month thereafter. The pur-
chases of the Indiana bonds were negotiated and consummated in the city
of New York, and all the certificates were issued there.
In August, 1841, the plaintiff herein being a stockholder and creditor
of the Trust and Banking Company, commenced this suit against it in the
Court of Chancery. The bill was filed under the Revised Statutes,^ and
alleged that the company was insolvent, and that it had violated the law,
etc. It prayed that tlie company might be enjoined from transacting busi-
ness, that a receiver of its effects might be appointed and the corporation
dissolved, etc. In September, thereafter, David Leavitt was appointed re-
ceiver, with the usual powers; and in June, 1843, a decree was made in
the suit by which the Trust and Banking Company was adjudged to be
insolvent, and it and its officers were perpetually enjoined, etc. An order
was made in October, 1845, that the creditors of the company exhibit their
claims to the receiver or be precluded from sharing in the funds, and pro-
viding that any claimant might enter his appearance in the action ; and
that if any claim were disallowed by the receiver, it should be referred to
referees. Pursuant to this order the State of Indiana, in December, 1845,
exhibited the claim in controversy to the receiver. In the notice of the
claim furnished to the receiver it was stated that the State of Indiana had
1 2 11. S. 403, §§ 39-42.
SECT. II.] TRACY V. TALMAGE. 33
a debt against the Trust and Banking Company of $175,000, witli interest
thereon from the 2d of January, 1841, for a balance due at that date for
bonds issued by said State, and sold and delivered to the Trust and Bank-
ing Company by the Morris Canal and Banking Company or otherwise.
That this debt was owned by the State of Indiana, and that it should be
allowed and paid to it, or that it should be allowed in the name of the
Morris Canal and Banking Company for the use and benefit of the State
of Indiana, and paid to the latter as the assignee of the demand. Attached
to the notice of claim were the eighteen certificates for $175,000, above
mentioned, which it was alleged were issued by the Trust and Banking
Company for the debt claimed. In March, 1846, the receiver disallowed
the claim, and in March, 1847, an order was made referring it to three ref-
erees, who, after hearing the proofs, in September, 1850, reported against"
the validity of the claim. The report of the referees contained all the
evidence given before them ; and stated that they were of opinion, upon
the proofs, that the claim was not valid, and that there was nothing due
from the Trust and Banking Company or its receiver to the claimant.
Other than this the particular conclusions of the referees as to the facts
or law did not appear. The evidence proved the facts above stated. It
also proved that the Indiana bonds were purchased by the Trust and Bank-
ing Company with the intention of selling them to raise money, and that
they were so sold, principally in England, at a large discount. Tliere was
some evidence tending to prove that the Morris Canal and Banking Com-
pany knew at the time of the sale that the Trust and Banking Company
purchased the bonds with this intention. It also appeared that the Trust
and Banking Company, both before and after the purchase of the $1,000,000
of bonds in October, 1849, was accustomed to make and issue negotiable
certificates of deposit, payable on time ; and that during the time it carried
on business, it issued negotiable paper, payable at a future day, to over
$15,000,000. All the certificates issued on account of the Indiana bonds,
except those in question, appeared to have been paid. There was evidence
tending to prove that in making the sale of the bonds, the Morris Canal
and Banking Company was in fact the agent of the State of Indiana. The
State of Indiana filed exceptions to the report of the referees, which, in
September, 1851, were overruled at a special term of the Supreme Court
held in New York by Justice Edmonds, and the report made by the ref-
erees affirmed. An appeal was taken by the State of Indiana, and in 1854,
the court, at a general term held in New York, reversed the judgment
rendered at special term, and adjudged that the claim was lawful and valid
against the Trust and Banking Company, and was justly due and owing
to the claimant, with interest from Jan. 2, 1841, " as the balance remaining
unpaid for State bonds sold and delivered to the Trust and Banking Com-
pany by the INIorris Canal and Banking Company, and by the last-mentioned
company transferred to the claimant." The decree fixed and adjudged the
VOL. II. — 3
34 TRACY V. TALMAGE. [CIIAP. II.
amount of the demaiKl to be $34:3,437.50, being the amount oi the $175,000
and interest from Jan. 2, 1841 ; and the receiver was directed to pay the
same in the due administration of the assets of the company. From this
decree the receiver appealed to this court.
The cause was argued in this court in 1855, and the court ordered a
re-argument. It was ag-ain argued at the March term, 1856.
Samuel Beardsley for the appellant.
A. Mann for the respondent.
Selden, J. To avoid confusion, I shall consider this case in the first
instance as though the Morris Canal and Banking Company, instead of the
State of Indiana, was the claimant upon the record. The general ground
\ipon which the claim is resisted is, that it arises upon an illegal contract.
Three grounds of illegality are alleged: 1. That the purchase of State
stocks by the North American Trust and Banking Company for the purpose
of resale, upon speculation, was beyond the scope of its corporate powers,
and, therefore, illegal, and that the Morris Canal and Banking Company
knew that such was the object of the purchase ; 2. That the North Ameri-
'can Trust and Banking Company had no power to issue negotiable prom-
issory notes upon time ; that such notes, therefore, and the contract of
sale which provided for receiving them in payment, are illegal and void ;
3. That the certificates or post notes delivered in payment for the State
stock, being calculated and intended for circulation, were issued in violation
of the restraining act ; and that the Morris Canal and Banking Company
was particeps cHminis.
In examining the first of these gi'ounds, I shall not notice the position
taken by the counsel for the receiver, that a mere excess of authority on
the part of a corporation in making a contract, is equivalent in its eftect to
the violation of a positive penal enactment; because, so far as the alleged
illegality consists in the purpose for which the stocks were purchased, the
case can, I think, be disposed of upon principles which do not involve that
question. That the North American Trust and Banking Company made
the purchase with a view to a resale, and not to a deposit with the comp-
troller/~seem8 lo be established by the proof; and that such a purchase
and resale were iniauthorized and beyond the scope of the corporate
powerajuf_the company, wliirsellliTd by ttTiiTcourt in the case of Talmage v.
Pell.' ~~~~^ -^
It is contended by the counsel for the claimant, that there is no evidence
that the vendors, the Morris Canal and Banking Company, had any knowl-
edge of tlie object of the vendees in making the purchase. I shall, however,
assume that they had such knowledge ; because, in the view I take of the
subject, it cannot affect the result. The question presented upon this
bnmcli of the case is, whether the bare knowledge by a vendor that the
purchaser intends to make an unlawful use of the article sold, will prevent
1 3 Sold. 328.
SECT. II.] TRACY V. TALMAGE. 35
a recovery for tlie purcliasemouey.^ Although I deem this (iiiostion clear
upon principle, I shall, nevertheless, rest my opinion in regard to it mainly
upon the authorities.
A question somewhat analogous arose in the Court of King's Bench, in
England, in the case of Faikney v. lleynous."'^ The plaintiff and one of the
defendants had been jointly concerned in stock-jobbing; and the plaintiff,
in contravention of an express statute, had advanced £3000, in compound-
ing certain differences, for one-half of which the defendants had given the
bond upon which the action was brought. Upon demurrer to a plea setting
up these facts, the court held the plaintiff entitled to recover. Although
that case differs from the one under consideration, in its facts, yet the
principle upon which the case was decided, viz., that a party to a contract,
innocent in itself, is not responsible for or affected by the use which the
other may make of the subject of the contract, is equally applicable here.
Lord Mansfield said, in speaking of the act of the defendant in giving the
bond : " This is not prohibited. He is not concerned in the use which the
other makes of the money ; he may apply it as he thinks proper. But
certainly this is a fair, honest transaction between these two."
There is a class of English cases which seems to me identical in principle
with the present, and concerning which the decisions have been unvarying.
I refer to the cases of goods purchased for the express purpose of being
smuggled into England, in violation of the revenue laws, and where the
object of the purchase was known to the vendor. The first of these cases
is that of Holman v. Johnson,^ where the plaintiff, residing at Dunkirk, had
sold to the defendant a quantity of tea, knowing that the latter intended
to smuggle it into England, but had himself no concern in the smuggling.
The action was brought for the price of the tea, and it was held, upon these
facts, that the plaintiff could recover. The principle of the case is the same
as that adopted in Faikney v. Reynous,^ that mere knowledge by the vendor
1 If one enters into a contract /or the purpose of having the defendant use the subject-
matter in a manner prohibited by statute, there can be no recovery. Cannan v. Bryce,
3 B. & Aid. 179 ; McKinnell v. Robinson, 3 M. & W. 434.
Mere knowledge that it is to be so used, though such use does not amount to a
felony, will prevent a recovery. Langton v. Hughes, 1 M. & S. 592; Pearce v. Brooks,
L. K, 1 Ex. 213 {semblc).
Contra generally in the United States, see Pollock on Contracts, 2d Am. Ed. 323,
note t. ; 22 Alb. L. J. 405.
If the act prohibited amount to a felony, then mere knowledge will prevent a recovery.
Hanauer v. Doane, 12 Wall. 342. See, however, Tedder v. Odorn, 2 Heisk. 68, contra.
Knowledge on the part of the plaintiff that the defendant intends to devote the subject-
matter of the contract to an immoral use will prevent a recovery. Pearce v. Brooks, L. R.
1 Ex. 213. See, however, Pollock on Contracts, 2 Am. Ed. 323, note t. ; 22 Alb. L. J. 405.
If the plaintiff does, or binds himself to do anything to facilitate the doing of the
unlawful act, there can be no recovery. Hull v. Ruggles, 56 N. Y. 424 ; Ai-not v. Coal
Co., 68 N. Y. 558. — Ed.
2 4 Burr. 2069. 3 Cowp. 341.
36 TRACY V. TALMAGE. [CHAP. II.
of the uulawful intent did not make liim a participator in the guilt of the
purchaser. Lord Mansfield, who delivered the opinion in this case also,
says : " The seller indeed knows what the buyer is going to do with the
goods ; but the interest of the vendor is totally at an end, and his contract
comijlete by the delivery of the goods."
Where, however, the seller does any act which is calculated to facilitate
the smuggling, such as packing the goods in a particular manner, he is
regai'ded as particeps criminis, and cannot recover ; as is shown by the
subsequent cases of Biggs v. Lawrence,^ Clugas v. Penaluna,^ and Waymell v.
lieed.' These were all cases where the plaintiff had sold goods to the
defendant, knowing that they were to be smuggled into England ; and in
each of them the plaintiff was nonsuited. But they all differed from the
case of Holman v. Johnson in this, that the plaintiff had in each case done
some act, in addition to the sale, in aid and furtherance of the defendant's
design to violate the revenue laws, and the decision was in each case placed
distinctly upon this ground. The language of Buller, J., in the case of
"Waymell v. lieed, is very explicit. He says : " In Holman v. Johnson, the
seller did not assist the buyer in the smuggling. He merely sold the goods
in the common and ordinary course of trade. But this case does not rest
merely on the circumstance of the plaintiff's knowledge of the iise intended
to be made of the goods ; for he actually assisted the defendants in the act
of smuggling, by packing the goods up in a manner most convenient for
that purpose."
In each of the three cases last cited, special care is taken to guard against
any inference that it was intended to impair, the force of the decision in
Holman v. Johnson. Indeed, that decision seems to have been uniformly
followed by the courts of England from that day to the present. In 1835
the question again arose in the case of Pellecat v. Angell,* and the court
held that the plaintiff could recover the price of goods sold to the defend-
ant, although he knew at the time of the sale that they were bouglit to be
smuggled into England. Lord Abinger says : " The distinction is, where
he takes an actual part in the illegal adventure, as in packing the goods in
prohil)ited parcels, or otherwise, there he must take the consequences of
his own act." Again he says : " The plaintiff sold the goods ; the defend-
ant might smuggle them if he liked, or he might change his mind the next
day ; it does not at all import a contract, of which the smuggling was an
essential part." It is true, the Chief Baron in one part of his opinion seems
to lay some stress upon the fact that the plaintiff was a foreigner; bnt it is
clear that this can have nothing to do with the principle upon which those
cases rest, which is, that the act of selling is not in itself a violation of the
law ; and the mere fact of knowledge of the imlawful intent of the vendee
does not make the vendor a participator in the guilt. The language of the
as.sociates of the Chief Baron goes to show that the domicil of the plaintiflf
» 3 T. U. 454. 2 4 T. j.. 46(5. 8 5 t. K. 590. * 2 C. JI. & R. 311.
SECT. II.] TRACY V. TALMAGE. 37
hfid no influence upon the decision. Bollaxd, B., says : " I think the dis-
tinction ])ointed out by the Lord Chief Baron, between merely knowing of
the illegal purpose, and being a party to it by some act, is the true one."
Aldersox, B., says: "If the plea disclosed circumstances from which it
followed, that permitting the plaintiff" to recover would be permitting him to
receive the fruits of an illegal act, the argument for the defendant would
be right ; but that ground fails, because the mere sale to a party, although
he may intend to commit an illegal act, is no breach of law." That the
place of residence of the vendor has nothing to do with the question, and
that the principle of the case of Holman v. Johnson is sound, is further
shown by the case of Hodgson v. Temple,^ decided by the Court of Common
Pleas in England. There, as it would seem, all the parties resided in Lon-
don. The plaintiff's, who were distillers, had sold spirituous liquors to the
defendant with full knowledge that the latter intended to retail them, in
express violation of the revenue laws. It was insisted, in defence to* an
action brought for the purchase-money of the liquors, that the plaintiffs
were partice2}s criminis, and could not recover. But Mansfield, C. J.,
said : "This would be carrying the law much further than it has ever yet
been carried. The merely selling goods knowing that the buyer will make
an illegal use of them, is not sufficient to deprive the vendor of his just
right of payment ; but to effect that it is necessary that the vendor should
be a sharer in the illegal transaction."
Opposed to this series of cases, holding one uniform language, and sanc-
tioned by such names as Mansfield, Buller, Kenton, Abingbr, and others,
I know of but a single English case, viz., that of Langton and others v.
Hughes.^ By a statute of 42 Geo. III., brewers were prohibited from
using anything but malt and hops in the brewing of beer. The plaintiff's,
who were druggists, had sold to the defendants, who were brewers, certaiu
drugs, knowing that they were to be used contrary to the statute. In the
51 Geo. III., another statute was passed prohibiting druggists from selling
to brewers certain articles, and among them those sold to defendants.
The sale in question was made before the latter statute, but the suit was
brought afterwards. The court held that the plaintiff" could not recover.
It is difficult to ascertain from the opinions the precise ground upon which
the court intended to rest its decision. The case was so clearly within the
terms of the statute of 51 Geo. III., that the judges were evidently induced
to resort to a somewhat strained construction of the previous statute, and
even to an attempt to connect that with the statute passed after the sale,
for the sake of sustaining the defence. Le Blanc, J., after stating the
(jucstion, says : " That depends upon the provisions of 42 Geo. III., coup-
ling them in their construction with those of 51 Geo. TIL" It is apparent,
I think, upon a review of the whole case, that it was not very well consid-
ered, and that the decision was really produced by the reflex influence of
1 5 Taunt. 181. 2 1 M. & S. 593.
38 TRACY r. TALMAGE. [CIIAP. II.
the latter statute. This case, therefore, which does not appear to have
been followed either in England or in this country, and which is virtuall}'
overruled by the subsequent case of Pellecat v. Augell,^ can have but little
weight in opposition to the numerous authorities to which I have referred,
going to establish the contrary principle.
There is another class of English cases which have been sometimes sup-
posed to conflict with the doctrine advanced in Faikney v. Keynous ^ and
Holman v. Johnson,' but which, when the precise ground upon which they
were decided is considered, will be found to support rather than to detract
from the doctrine. That ground is this : that it was the express object of
the plaintiffs in those cases, in selling the goods or lending the money, tliat
they siiould be used for an unlawful purpose, and that such purpose entered
into and formed a part of the contract of sale or loan. A brief reference to
those cases will show that this is the principle upon which they rest. The
first case of this class is that of Lightfoot et al. v. Tennant.'* The action
was upon a bond given for goods sold, and the defendant pleaded that the
plaintifl^ sold the goods "in order that" they should be shipped to the
East Indies without the license of the East India Company, in violation of
an express statute. The issue upon this plea was found for the defendant,
and a motion for judgment non obstante veredicto was denied. Eyre, C. J.,
argues, that the jury having found that the plaintiff sold the goods " in
order that" they should be shipped, etc., it cannot be said that he had no
interest in their future destination ; that he may well have sold the goods
for an enhanced pi-ice, relying exclusively upon the profits to be realized
from the illicit trade for payment. He says : " It is a possible case, that
a tradesman may wish to speculate in this contraband trade, and to do it
by dividing the profits with some man of spirit and enterprise, but without
capital. Such a man would stipulate that the goods which he sold should
be put on board a ship under a foreign commission, and should be sent to
Calcutta to be there sold. His share of the profits would be found in the
price originally fixed on the goods, but his hopes of payment would rest
entirely on the returns of this contraband trade." Again he says: "But
the jury having found for the plea, the court cannot say that the plaintiff
had nothing to do with tlie future destination of the goods ; unless it was
impossible to state a case in which they could have anything to do with
it." The decision in this case clearly is based upon the fact, that the
future use to be made of the goods entered into and formed a part of tlic
contract of sale. There are two other English cases belonging to the same
class. The first is that of Cannan v. IJiyce.* The di-fendaut had lent
raone}' to a firm, which afterwards became bankrupt, for the })urpose of
paying a balance due upon certain illegal stock-jobbing transactions, and
which had been ajiplied to that oV)ject. He having afterwards received
» 2 C. M. & R. 311. 24 Burr. 2009. 3 Cowp. 341.
« 1 I',. & I'. .'■,.11. 6 3 B. A: A. 170.
SECT. II.] TRACY V. TALMAGE. 39
money belonging to the bankrupts, the assignees brought their action to
recover those moneys, and it was held that the defendant could not set otf
his demand for the money loaned. The other case is that of McKinnell v.
Itobiuson,^ wliich was an action of assumpsit for money lent. The defend-
ant pleaded that the money was lent in a certain common gambling room,
for the purpose of the defendant's illegally playing and gaming therewith ;
and on demurrer the plea was held good. In each of these cases it will be
seen that the illegal use was the express object for which the money was
lent ; and this is relied upon by the court in both cases in giving their
judgment. In the case of Cannan v. Bryce, AimoTT, C. J., says : " It will
be recollected that I am speaking of a case wherein the means were fur-
nished with a full knowledge of the object to which they were to be applied,
and for the express purpose of accomplishing that object;" and in the case
of McKinnell v. Robinson, Lord Abinger, in stating the principle by which
the case was governed, says : " This principle is, that the repayment of
money lent for the express purpose of accomplishing an illegal object, can-
not be enforced."
It is worthy of note that the three cases last referred to present the
views respectively of the heads of the three principal English courts, viz.,
Abbott, chief justice of the king's bench, Eyre, chief justice of the common
pleas, and Abinger, chief baron of the exchequer; and their concurrence in
resting their decisions upon the fact that the illegal object was in the con-
templation of both parties, and formed a part of the original contract, goes
strongly to confirm the doctrine of the cases of Faikney v. Reynous,^ Hol-
man v. Johnson,^ etc. Indeed the whole current of English authority goes
to support those cases, with the single exception of Langton et al. v.
Hughes.* They have also frecpiently been referred to by the courts in
this country as containing sound doctrine. De Groot v. Van Duzer;^
Merchants' Bank v. Spalding ; ^ Armstrong v. Toler.' In the latter case,
Chief Justice Marshall refers to the case of Faikney v. Reynous in the fol-
lowing terms : " The general pi'oposition stated by Lord Mansfield, in
Faikney v. Reynous, that if one person pay the debt of another at his I'equest,
an action may be sustained to recover the money, although the original
contract was unlawful, goes far in deciding the question now before the court.
That the person who paid the money knew it was paid in discharge of a
debt not recoverable at law, has never been held to alter the case."
The principles established by this strong array of authorities are in entire
accordance with the case of Talmage v. Pell,^ decided by this court. It was
a part of the contract in that case, between the banking company and the
commissioners of the State of Ohio, that the bonds should remain in the
hands of the agent of the State, to be sold on account of the banking com-
1 3 M. & W. 434. 2 4 Burr. 2069. 3 Cowp. 341.
4 1 M. & S. 593. 5 17 Wend. 170. 6 12 Barb. 302.
T 11 Wheat. 258. 8 3 Sold. 328.
40 TKACY V. TALMAGE. [CIIAP. II.
pauy; and this Hict is referred to and relied upon by Gardiner, J., by
whom the opiuiou of the court was delivered, lie says : " I am, for the
reasons suggested, of the opinion that this bank had no authority to traffic
in stocks as an article of merchandise, or to purchase them for the purpose
of selling, as a means of obtaining money to discharge existing liabilities;
that as tiie object of the purchase in this case was known to both parties,
and made a part of their contract, the debt for the purchase-money cannot
be enforced by the vendors, and that the collateral securities must stand or
ftUl with the principal agi-eement." The case contains no intimation what-
ever that the mere knowledge, by the agents of the State of Ohio, that the
banking company purchased the bonds with a view to a resale, would have
defeated a recovery. On the contrary, such an inference was carefully
guarded against by the learned judge who delivered the opinion, as appears
from the extract just given.
I consider it, therefore, as entirely settled by the authorities to which I
have referred, that it is no defence to an action brought to recover the
price of goods sold, that the vendor knew that they were bought for an
illegal purpose, provided it is not made a part of the contract that they
shall be used for that purpose ; and, provided also, that the vendor has
done nothing in aid or furtherance of the unlawful design. If, in this case,
the bank had had no right to purchase State stocks for any purpose, then
the contract of sale would have been necessarily illegal, and the vendor
would, perhaps, be precluded from all remedy for the purchase-money.
But here the purchase and sale for a lawful object was a contract which
each party had a perfect right to make. Suppose the banking company,
although intending at the time of the purchase to use the stocks for trading
purposes, had, the next day, abandoned this intention and deposited them
with the comptroller ; would this change of purpose reflect back upon the
contract of purchase, if it was corrupt, and divest it of its illegal taint ]
This could hardly be pretended ; and, if not, then the consequence of the
doctrine contended for here would inevitably be, that the vendor of the
stocks, without having participated in any illegal act, or even illegal intent,
but having simply known of such an intent subsequently abandoned,
would be punished with a total loss of the property sold, and that for the
benefit of the party alone guilty, if guilt could be predicated of such a
transaction.
I am not aware of any principle which could justify this. The law does
not punish a wrongful intent, when nothing is done to carry that intent
into effect; much less, bare knowledge of such an intent, without any par-
ticijiation in it. Tpon the whole, I tliink it clear, in reason as well as »ipon
authority, that in a case like this, where the sale is not necessarily _/jer se
a violation of law, unless the unlawful purpose enters into and forms a part
of the contract of sale, the vendee cannot set up his own illegal intent in
biir of an action for the jiurchase-nioncy.
SECT. II.] TRACY V. TALMAGE. 41
It follows, from this, that the sale of the stocks would have created a
valid aud legal obligation on the part of the banking company to pay the
purchase-money, but for the form of the security agreed to be taken in
payment ; aud this brings me to the consideration of the second ground of
defence, viz., that the North American Trust aud Banking Company had
no authority to issue negotiable promissory notes, payable at a future day;
and, consequently, that the contract which provided for their issue and for
receiving them in payment, was illegal and void.
In considering this branch of the case, I shall not examine at length the
questions so ably argued at bar, in regard to the nature of corporations
and the limitations of their powers, but shall assume it to have been estab-
lished, for the purposes of this case, at least, that associations under the
general banking law, even prior to the act of 1840,^ had no power to issue
negotiable notes upon time ; placing this assumption, however, not upon
the safety fund act of 1829,^ but upon the general principle of law which
limits corporations to the exercise of powers expi-essly given to them, or
such as are necessarily incident thereto, and iipon the statute confirmatory
of that principle.^
It follows, that in issuing the certificates or post notes delivered to the
Morris Canal and Banking Company in consideration of the stocks trans-
ferred, the North American Trust and Banking Company exceeded its cor-
porate powers. That those certificates were negotiable promissory notes,
is clear. Bank of Orleans v. Merrill;* Leavitt v. Palmer;^ Talmage v.
Pell.^ Does this act of the Trust aud Banking Company, thus transcend-
ing its legitimate powers, so taint and corrupt the contract of sale as to
deprive the vendors of the stocks of all remedy for the purchase-money ?
The counsel for the claimants sought upon the argument to maintain that
the sale of the stocks and the receipt of the certificates were distinct trans-
actions ; and, hence, that the debt created by the sale would remain, not-
withstanding the illegality of the securities. In this, however, he is not
sustained, I think, by the evidence. The proof seems to be clear, that the
agreement to receive the certificates or post notes was simultaneous with
and formed a part of the contract of purchase. It becomes necessary,
therefore, to meet the question, whether the consent and agreement of the
vendors to receive the certificates in payment will prevent a recovery in
any form for the stock sold.
It results, from what has been previously said, that there was nothing in
the contract of sale, considered by itself, separately from the agreement
in relation to the security, to impair the validity of the debt ; but, on
the contrary, that the sale of the stocks created as valid and meritorious
a consideration for the obligation assumed by the Trust and Banking
Company as if the money had actually been deposited according to the
1 Laws of 18i0, 306, § 4. « Lcaws of 1829, 167. « i R. s. 600, § 3.
« 2 Hill, 295. 5 3 Const. 19. « 3 Seld. 328.
42 TRACY V. TALMAGE. [CHAP. II.
teuor of tlie certificates. The objection to the claim, therefore, rests upon
the nature of tl)e securities alone, and acquires no additional force from
the want of power in the Trust and Banking Company to traffic in
stocks.
It has long been settled that contracts founded upon an illegal consider-
ation, or which contemplate the performance of that which is either vialum
in se, or prohibited by some positive statute, are void. But the application
of this rule to contracts made by corporations, the sole objection to which
consists in their being ultra vires, is comparatively modern. The doctrine
rests mainly upon three recent English cases, viz., East Anglian Railway
Company v. Eastern Counties Railway Company, ^ McGregor v. The Official
Manager of the Deal and Dover Railway Company,'^ and the Mayor of
Norwich v. The Norfolk Railway Company.*
That a contract by a corporation which it has no legal capacity to make,
is void and cannot be enforced, it would seem difficult to deny ; and this
principle alone is abundantly sufficient to sustain the cases above cited, which
were all actions founded upon and affirming the validity of the illegal con-
tract. But it is quite another question, whether such a contract is so tainted
with corruption, that the party dealing with the corporation will be refused
all remedy in a suit proceeding upon the ground of a disaffirmance of the
contract, and asking only such relief as equity demands. AVhether a con-
tract of this nature can fairly be brought, consistently with either reason
or adjudged cases, within the range of the maxim, ex turpi causa non oritur
actio, cannot be considered as settled by the cases referred to ; especially,
i\s in the last of those cases the court was equally divided, and it was only
disposed of by one of thejudges withdrawing his opinion with a view to an
ajipeal.
Prior to the case of East Anglian Railway Company v. Eastern Counties
Itailway Company,^ the rule which denied all relief, in equity as well as at
law, to any party to an illegal contract, had been generally applied onl}' to
cases where the contract was either malum in se or specifically prohibited
by statute. It was wholly unnecessary to the decision of that case to resort
to any extension of that rule ; because, to enforce a contract against a
party, wliich that party was incompetent in law to make, would indeed
be, in the language of some of the cases, " to make the law an instrument
in its own subversion." The courts, however, in that as well as the two
subsequent cases, do appear to have been inclined to hold that contracts of
corporations, which are ultra vires merely, come within the general rule
whiclj denies all aid to either party to a contract made in violation of law.
lint it will not be necessary here to pass upon the correctness of this doc-
trine advanced in those cases, as, in the view I take of this case, it falls
clearly within an exception to that rule ; and, for the purposes of this
question, I shall concede : 1. That the issuing and delivery by the North
> 7 Kii;,'. I.. & Ivj, 505. '•' 1(3 Ku;^. b. & Eii 180. 3 30 En«. L. & E(i. 120.
SECT. II.] TKACY V. TALMAGE, 43
American Trust and Banking Company of its ])romissory notes payable on
time, was tilttu vires ; and that the ett'ect of this upon the contract was the
same as if it had been speciticnlly prohibited under a penalty ; and 2. That
the notes issued were calculated and intended for circulation as money, and
were, therefore, issued contraiy to the inhibitions of the restraining act.
These concessions are made for the purposes of this case only, and witliout
intending definitely to decide the points conceded.
There are one or two classes of cases to which it will be necessary to refer
in order to afford a clear view of the question here presented. The first
consists in a series of cases in which a distinction has been taken between
those illegal contracts where both parties are equally culpable, and those in
which, although both have participated in the illegal act, the guilt rests
chiefly upon one. The maxim, ex dolo malo non oritur actio is qualified by
another, viz., in pari delicto melior est conditio defendentis. Unless, there-
fore, the parties are in pari delicto as well as particeps criminis, the courts,
although the contract be illegal, will afford relief, where equity requires it,
to the more innocent party.
It was insisted by the counsel for the receiver, upon the argument, that
in no case would relief be afforded to any party to an illegal contract,
unless he applied for such relief, or, at least, had elected to disaffirm the
contract while it remained executory. This position cannot, I think, be
sustained. It overlooks distinctions which are clearly settled. The cases
in which the courts will give relief to one of the parties on the ground that
he is not in pari delicto, form an independent class, entirely distinct from
those cases which rest upon a disaffirmance of the contract before it is exe-
cuted. It is essential to both classes that the contract be merely malum
p)rohihitum. If malum in se, the courts will in no case interfere to relieve
either party from any of its consequences.^ But where the contract neither
involves moral turpitude nor violates any general principle of public policy,
and money or property has been advanced upon it, relief will be granted to
the party making the advance : 1. Where he is not in pari delicto ; or, 2.
In some cases where he elects to disaffirm the contract while it remains
executory. In cases belonging to the first of these classes, it is of no im-
portance whether the contract has been executed or not ; ^ and in those
belonging to the second, it is equally unimportant that the parties are in
jiari delicto.^ This will clearly appear upon a brief review of some of the
leading cases.
1 Tappenden v. Randall, 2 E. & P. 467 (srvihlr.) ; S[.iing Co. v. Knowlton, 103 U. S.
49 (seinble) ; White v. Franklin Bank, 22 Pick. 181 (scmble) accord. — Eu.
2 See infra, 504-522.
3 Taylor u. Bowers, 1 Q. B. Div. 291 ; Spring Co. v. Knowlton, 108 IT. S. 49 ; White u.
Franklin Bank, 22 Pick. 181 [semhh) accord. ; Knowlton v. Spring Co., 57 N. Y. 518,
contra.
Money in the hands of an agent which he holds under instructions to pay to one wlio
44 TRACY r. TALMAGE. [CHAP. II.
The first case which I deem it material to notice is that of Smith v.
Bromley.* Tlie plaiutiti-s brother having become bankrupt, and a commis-
sion having been taken out against him, the plaiutitf advr.nced £40 to the
defeudiuit, who was the principal creditor, to induce him to sign the certifi-
cate. The action, which was brought to recover this money, was sustained.
In reply to the argument that the plaintiff was seeking to recover back
money paid upon an illegal contract. Lord Mansfield said : " If the act is
in itself immoral, or a violation of the general laws of public policy, then
the partv paying shall not have this action ; for when both parties are
equallv criminaJ against such general laws, the rule is potior est conditio
Jtfendentis. But there are other laws which are calculated for the protec-
tion of the subject against oppression, extortion, deceit, etc. If such laws
are violated, and the defendant takes advantage of the plaintiff's condition
or situation, then the plaintiff shall recover ; and it is astonishing that the
reports do not distinguish between violations of the one sort and the other."
Two things are to be noted in this extract. That a distinction is taken
between contracts malum prohibitum merely, and such as are immoral or
contrar}' to general principles of policy ; and also that stress is laid upon
the fact that the law contravened in this case was intended to protect one
party from oppression b}' the other. The first is a valid distinction, which
runs through all the subsequent cases; the last was merely incidental
to the particular case, and not essential to the principle. The first cases
in which the principle was applied, were naturally those where the statute
violated was intended for the special protection of the party socking relief
from some undue advantage taken by the other, because those were the
cases in which the injustice of applying the same rule to both parties would
be the most glaring. But it soon came to be seen that the principle was
equally applicable to cases where the law infringed was intended for the
protection of the public in general.
The case of Jaqucs v. Golightly ^ was an action brought to recover back
money paid for insuring lottery tickets. The defendant kept an office for
insurance contrary to the statute 14 Geo. III., ch. 76. It was urged that
the ))laintiff being particepn criminis, and having knowingly transgressed
a public law, was not entitled to relief; but the action was sustained by
the inianimous opinion of the court. Blackstone, J., said : " These lottery-
acts differ from the stock-jobbing act of 7 Geo. II., ch. 8, because there both
parties are made criminal and subject to penalties." The rule here sug-
gested for determining wliether the parties are in pari delicto, seems rea-
sonable and just. There are, undoubtedly, other cases in which the parties
JiiiK rrndered wrvircs, nlyin;,' on tlie jiriiiciiial's promise to jiay a luibo therefor, can be
ri'cov<Tf'<l hy tin- i.rinei|.nl. Hone v. Eckless, 5 H. & N. 92.'>.
Money (le|M>sit<'(l with a stikeholder as a wa^er can he recovered before payment over.
Cotton r. Thurhmd, .I T. U. 405 ; Love v. Harvey, 114 Ma-ss. 80. — Ed.
» DoiiL'l. r,7n, it, note. 2 2 W. V,\. 1073.
SECT. II.] TRACY V. TALMAGE. 45
are not equally guilty ; but it is safe to assume, that whenever the statute
imposes a penalty upon one party and none upon the other, they are not to
bo regarded as par delictum. In Browning v. Morris,^ Lord Mansfield,
after referring with approbation to the case of Jaques v. Golightly, reiter-
ates the argument of Blackstone, J., in that case. He says : "And it is
very material that the statute itself, by the distinction it makes, has marked
the criminal, for the penalties are all on one side, — upon the office-keeper."
The question next arose in the case of Juques v. Withy,^ which is identi-
cal with the case of Jaques v. Golightly, decided by the same court fifteen
years before. The action was brought to recover back money paid for
insurance to the keeper of a lottery insurance office, and it was held to lie.
It will be seen that these two cases are not like that of Smith v. Bromley,
where an undue advantage was taken of the peculiar situation of the plain-
tiff; and that although some effort is made in Jaques v. Golightly, and by
Lord Mansfield in Browning v. Morris,^ to bring them within the reason-
ing of that case, they are really placed upon the broad ground that the
parties are not in pari delicto, and, as evidence of this, the court rely upon
the fact that the penalty was imposed upon the defendant alone. A similar
question came before the Couat of King's Bench in the case of Williams v.
Hedley,^ where the previous cases were ably and elaborately reviewed by
Lord Ellenborough. The action was brought to recover back money
which had been paid by the plaintiff to compromise a qui tarn action pend-
ing against him for usury. The principle of the decision cannot be better
stated than by transcribing the head-note of the reporter, which is this :
" Money paid by A. to B., in order to compromise a qui tarn action of usury
brought by B. against A. on the ground of a usurious transaction between
the latter and one E., may be recovered back in an action by A. for money
had and received. For the prohibition and penalties of the statute of
18 Eliz. c. 5, attach only on the informer or plaintiff or other person suing
out process in the penal action making composition, etc., contrary to the
statute, and not upon the party paying the composition ; and, therefore,
the latter does not stand, in this respect, in pari delicto, nor ia he particeps
o'iminis with such compounding informer or plaintiff."
These are the leading English cases on this subject ; and it is plain that
they do not rest solely upon the ground that the statute infringed was
intended to pi'otect one party from acts of oppression or extortion by the
other; and equally plain that relief is granted in this class of cases entirely
irrespective of the question whether the contract be executed or executory.
It was, in fact, executed in all these cases.
The series of cases here referred to have never been overruled. On the
contrary, they have been expressly sanctioned and approved in several
American cases. In Inhabitants of Worcester v. Eaton,* Chief Justice
1 2 Cowp. 790. 2 I H. Bl. 65. 8 8 East, 378.
* 11 Mass. 368.
46 TRACY V. TALMAGE. [ClIAI". II.
Takkku, after referring to the cases of Smith v. Bromley ^ and Browning v.
Morris,- and to the distinction there taken, says: "This distinction seems
to have been ever afterwards observed in the English courts ; and being
founded in sound principle, is worthy of adoption as a principle of common
law in this country." The case of White v. Franklin Bauk,^ proceeds upon
the same distinction. It is impossible, as it seems to me, to distinguish
this case in principle from that now before the court. The lievised Stat-
utes of Massachusetts* prohibited banks from making any contract "for
the payment of money at a future day certain," under a penalty of a for-
feiture uf their charter. The plaintiff had deposited money with the
defendant in February, to remain until the 10th day of August; and the
action was brought to recover this money. It was objected that the con-
tract was illegal and the parties jxirticeps aiminis, but the defence was
overruled. This is by no means an anomalous case, as the counsel for the
receiver upon the argument of this case seemed to suppose. On the con-
trary, it belongs clearly to the same class with the English cases just
reviewed. Wilde, J., who delivered the opinion of the court, after refer-
ring to those cases, and quoting the remarks of Chief Justice Parker in
Inhabitants of Worcester v. Eaton, given above, says : " The principle is
in every respect applicable to the present case, and is decisive. The pro-
hibition is particularly levelled against the bank, and not against any person
dealing with the bank. In the words of Lord Mansfield, 'the statute it-
self, by the distinction it makes, has marked the criminal.' The plaintiff
is subject to no penalty, but the defendants are liable for the violation
of the statute to a forfeiture of their charter."
Again, in the case of Lowell v. Boston and Lowell Eailroad Company,^
where the objection was raised that the parties were pariiceps criminis, the
same Justice says : " In respect to offences in which is involved any moral
delinquency or turpitude, all parties are deemed equally guilty, and courts
•will not inquire into their relative guilt. But where the offence is merely
mnlitm prohihitian, and is in no respect immoral, it is not against the policy
of the law to inquire into the relative delinquency of the parties, and to
administer justice between them, although both parties are wrong-doers."
The same doctrine was reiterated in Atlas Bank v. Xahant Bank.^ The
principle of these cases was also adopted by our own supreme court in the
cxsc Mount V. Waite.' The action was to recover back money which
the plaintiffs had paid to the defendants for insuring lottery tickets con-
tniry to the policy of a statute passed in 1807. Kext, C. J., says : "The
plaintiffs here committed no crime in making the contract. They violated
no statute, nor was the contract malum in se. I tliink, therefore, the
maxim as to parties in pari delicto docs not apply, for the plaintiffs were
not in delicto."
> Doufjl. 670, in note. « 2 Cowp. 790. » 22 Pick. 181. * Ch. 36, § 57.
* 23 I'i'k. 2 J. <■■ 3 Mut 581. ^ 7 Johns. 434.
SECT. II ] TRACY V. TALMAGE. 47
This case is the last of the class to which I shall refer ; and I think it
would be difficult to find a series of cases, running through almost a cen-
tury, more uniform and consistent in tone and principle and in the distinc-
tions upon which they are based. They have never, so far as I am aware,
been overruled ; and I know of no principle which would justify this court
in disregarding them. The doctrine seems to me eminently reasonable and
just, and I discover no principle of public policy to which it stands opposed.
On the contrary, I concur in the sentiment which Judge Wilde, in White
V. Franklin Bank, expresses, thus : " To decide that this action cannot bo
maintained, would be to secure to the defendants the fruits of an illegal
transaction, and would operate as a temptation to all banks to violate the
statute, by taking advantage of the unwary and of those who may have no
actual knowledge of the existence of the proliibition, and who may deal
with a bank without any suspicion of the illegality of the transaction on the
part of the bank."
This language is as applicable to the case before us as to that in which
it was used. It is said that all persons dealing with banks and other cor-
porations are presumed to know the extent of their powers. This is no
doubt technically true, and yet we cannot shut our eyes to the fact, that
in very many cases it is a mere legal fiction. If we take the present case
as an example, it is plain that it would not have been easy for the Morris
Canal and Banking Company with the charter of the Trust and Banking
Company and the restraining act both before them, to determine whether
the issue of these certificates in payment for State stocks would violate
either ; and yet, upon the doctrine here contended for, an honest mistake
in this respect would visit upon the former company a forfeiture of the
entire amount of stocks transferred, which the latter company, if disposed,
might 'pocket. Such a principle would afford the strongest possible induce-
ment for banks to transgress the law. All that they could get into their
hands, by persuading others to take their unauthorized paper, would be
theirs. Under such a rule, arguments to make it appear that they have
power to do what they really have not, might be made to constitute the
most available portion of their capital ; and unauthorized dealing in large
amounts, with foreign states or corporations not familiar with our laws, the
most profitable branch of their business. These considerations go, in my
judgment, to strengthen and confirm the doctrine of the cases referred to,
which hold that relief may be granted to the more innocent, when the
parties are not in pari delicto.
The rule laid down in those cases for determining which is the more
guilty party is directly applicable to the present case, so far as the trans-
action is held to fall within the provisions of the restraining act. It has
been conceded, as was contended by the counsel for the receiver upon the
argument, that the issuing of the certificates in this case was a violation
48 TRACY V. TALMAGE. [CHAP. II.
of §§ 3, G, and 7 of the act concerning nnauthorized banking.^ It will be
seen, by referring to those sections, that the penalties are imposed exclu-
sively upon the corporation violating the provisions of the act, and upon
its olHcers and members. So far, therefore, as the defence is based upon a
violation of tlie restraining act, there is that statutory designation of the
guilty party upon which most of the cases to which I have referred are
made to rest. But it is obvious that the general principle for which I
contend applies equally to that branch of the defence which rests upon the
ground that the act of the banking company, in issuing the notes, was
ultra vires and against public policy. The imposition of the penalties for
a violation of the restraining law upon the cor])oration alone, does not make
it the guilty party, but it is simply evidence that the legislature so regarded
it ; and the reasons are equally strong for fixing the principal guilt upon
the same party where its acts merely violate the principle of public policy.
Although persons dealing with corporations are, for certain purposes, pre-
sumed to know the extent of their corporate powers, yet this is by no
means a safe rule by which to measure the moral delinquency of the respec-
tive parties. To me, therefore, it seems plain, that whether we regard the act
of the Trust and Banking Company in issuing the certificates in question as
a violation of the restraining law, or as simply ultra vires, or as against public
policy, the corporation is to be regarded as comparativel}' the guilty party.
I wish here briefly to refer to another class of cases decided in this State,
and known as the Utica Insurance cases, not as authority for my conclu-
sion, but by way of illustrating the distinctions to which I have adverted.
The first of these is The Utica Insurance Company v. Scott. ^ The action
1 1 was upon a promissory note discounted by the insurance company in the
V 1 I ordinary way of discounting by a bank. It was held that the insurance
I company had no power to discount notes ; and that in so doing it had vio-
■* 1 1 lated the restraining act. But the court say : " In analogy to the statute
against gaming, the notes and securities are absolutely void, into whatever
hands they may pass; but there is a material distinction between the secu-
rity and the contract of lending. The^lending of money is not declared to
be void, and, therefore, wlienever money hasbccn lent, it may be recovered,
although the security itself is void." Judgment was, however, given for
tlie defeimaiit in tlfat~cnS(5, iTccause the action was brought upon the note
alone. The next case was that of The Utica Insurance Company v. Kip.^
This, also, was an action upon a note discounted by the insurance company ;
but the declaration also contained a count for money lent. The plaintiff
recovered ; and the court say : " The illegal contract, if any, was not the
loan, for the plaintiffs had a right to loan the money to the defendants ;
but it wa-s the agreement to secure the loan by a note discounted. Avoid-
ing what was illegal does not avoid what was lawful. The action for
money lent is rather a disaffirmance of the illegal contract." Similar
' 1 U. S. 712. 2 10 Johns. 1. 8 8 Cow. 20.
SECT. II.] TKACY V. TALMAGE. 49
decisions were made in three subsequent cases, viz. : The Utica Insurance
Company v. Cadwell/ Same v. Kip,''^ and Same v. Bloodgood.'
These cases have never been overruled ; and yet I think I may say, they
have generally been regarded with some suspicion as to their soundness.
In New Hope Company v. Poughkeepsie Silk Company,* Nelson, J., in
speaking of them, says: "Whether the doctrine of these cases is well
founded and may be upheld upon established principles or not, or whether the
result was not ultimately influenced by the peculiar phraseology and powers
of the charter of The Utica Insurance Company, in respect to which they
arose, it is not necessary at present to examine. I am free to say, in either
aspect, I should have great difficulty in assenting to them." There is,
undoubtedly, " great difficulty " in reconciling these cases with the settled
rules in i*egard to illegal contracts ; and the difficulty consists precisely in
this, that the court, in the Utica Insurance cases, have given to the guilty
party the benefit of a principle which is only applicable to the more inno-
cent. In the first case in which the Insurance company recovered, viz..
The Utica Insurance Company v. Kip, the court cite and rely upon the
following passage from Comyn : " Where the action is in affirmance of
an illegal contract, the object of which is to enforce the performance of an
engagement prohibited by law, such an action can in no case be main-
tained ; but where the action proceeds in disaffirmance of such a contract,
and instead of endeavoring to enforce it presumes it to be void, and seeks
to prevent the defendant from retaining the benefit which he derived from
an unlawful act, there it is consonant to the spirit and policy of the law
that he should recover." ^ Comyn cites as authority -for this passage, the
case of Jaques v. Withy,® which is one of the cases to which I have referred,
in which the plaintiff recovered on the ground that he was not in pari delicto
with the defendant ; and on turning to that case it will be seen that the
passage is copied verbatim from the argument of Serjeant Adair, counsel
for the plaintiff. It is thus made apparent that the doctrine of the Utica
Insurance cases is built, in part, at least, upon the principles and arguments
•which lie at the foundation of the class of cases just passed in review. More
can scarcely be needed to justify the doubt which has been cast upon these
insurance cases. How principles, appropriately used to sustain a recov-
er}' against a party, upon the express ground that he is the party upon
whom the prohibition and penalties of the law attach, can be made avail-
able to justify a recovery by a party so situated, is certainly difficult to
comprehend.
But, notwithstanding the misapplication to these cases of the principles
for which I contend, the cases themselves afford strong evidence of the
appreciation, by the court, of the soundness of those principles. Indeed,
few, as it seems to me, will be found to deny either the justice or policy of
1 3 Wend. 296. 2 3 Wend. 369. 3 4 Wend. 652.
* 25 Wend. 648. » 2 Com. Con. part 2, ch. 4, art. 20. c 1 h. B1. 65.
VOL. II. — 4
50 TRACY r. TALMAGE. [CHAP. II.
the rule wliich refuses to permit the guilty party to retain the fruits of an
illegal transaction at the expense of the more innocent. But were it other-
wise, the rule, a§ I have shown, is indisputably established ; and that the
present case fixlls within that rule is entirely clear. We have next, then,
to ascertain the relief to which the Morris Canal and Banking Company
would, if the claimant upon the record, be entitled.
The illegal contract itself is of course void, and no part of it can be en-
forced. It is impossible, I think, to sustain the reasoning adopted in the
Utica Insurance cases; by which that part of the contract which embraces
the loan (in this case, the sale) is separated from the portion relating to
the security, and upheld as a distinct and valid contract. The contract
there, as here, was entire ; and it is contrary to all the rules which have
been applied to illegal contracts to discriminate between their different
parts, and hold one portion valid and the other void. Recoveries are not
had in such cases upon the basis of the express contract, which is tainted
with illegality; but upon an implied contract, founded upon the moral
obligixtion resting u})on the defendant to account for the money or property
received. The claim presented by the State of Indiana to the referees was
in general terms, and broad enough to embrace a demand arising upon an
implied contract to pay for the bonds transferred ; and it has been re-
peatedly held that a corporation may become liable upon such a contract
founded upon a moral obligation, like that existing in this case. Bank of
Columbia v. Patterson, Adm. ; ^ Danforth v. Schoharie Turnpike Company ; ^
Bank of U. S. v. Dandrige.®
It follows, from these principles, that if the Morris Canal and Banking
Company was the claimant upon the record, it would be entitled to recover,
not the specific balance due upon the certificates, nor the price agreed to
be paid for the stocks, but so much as the stocks transferred were reason-
ably worth at the time of such transfer, with interest, deducting therefrom
whatever has been actually paid in any form by the North American Trust
and Banking Company for the same, and leaving, however, the contract
of sale, so far as it has been executed by payment, or its equivalent,
undisturbed.
The only remaining question is, whether the State of Indiana has suc-
ceeded to the rights of the Morris Canal and Banking Company in this
respect. If, as it seems to have been held by the Supreme Court both at
special and general terms, the Canal and Banking Company acted in the
siile of the stocks as the agent of the State of Indiana, then, of course, the
latter, as the principal, is the proper party here. But aside from this, I
cannot doubt that a court of equity would hold, upon the face of the trans-
action, that it was the intention of the Morris Canal and Banking Company
to transfer to the State its entire claim against the Trust and Banking Com-
pany, growing out of the sale of the stocks, and would, if necessary, compel
» 7 Crancli, 209. 2 jo .Tohns. 227. 8 12 AVlieat. 64.
SECT. II.] THOMAS V. CITY OF RICHMOND. 51
any formal defects in such transfer to bo supplied ; and as the proceeding
hei'e is of an equitable nature, the court, upon well settled principles, will
regard what ought to be done as having been done.
The judgment of the Supreme Court should be modified in accordance
with these principles, and the proceedings remitted.
A. S. Johnson, J., dissented.
Judgment modified.
THOMAS V. CITY OF EICHMOND.
In the Supreme Court of the United States, December Term, 1870.
[Reported in 12 Wallace, 349.]
Error to the Circuit Court for the District of Virginia, on a suit upon
certain notes issued during the rebelIion_bj_the city corporation of Rich-
mondryThe case beniglhusT— ^
AT statute Virginia passed in 1854, and repi'oduced in the code of 18G0,
thus enacts : —
"Section 15. All members of any association, or company that shall
trade or deal as a bank or carry on banking without authority of law, and
their ofiicers and agents therein, shall be confined in jail not more than six
months, and fined not less than $100, nor more than $500.
" Section 16. Every free person,^ who with intent to create a circulating
medium, shall issue, without authority of law, any note or other security,
purporting that money or other thing of value is payable by, or on behalf
of, such person, and every officer and agent of such person therein, shall
be confined in jail," etc.
"Section 17. If a free person pass or receive in payment any note or
security, issued in violation of either of the two preceding sections, he shall
be fined not less than $20 nor more than $100.
" Section 19. In every case where a note of a less denomination than $5
is offered or issued as money, whether by a bank, corporation, or by indi-
viduals, the person, firm, or association of persons, corporation, or body
politic so issuing, shall pay a fine of $10."
By the charter of the city of Richmond,^ that city *' may contract or be
contracted with," and is endowed generally with "all the rights, franchises,
capacities, and powers appertaining to municipal corporations." The char-
ter also provides that " the cmincij_of the city may in the name and for the
use ofthe^ity contract loanSj and cause to be issued certificates of debt or_
bonds." ^
1 By the express provision of the enactment the word "person " includes corporation.
2 Chapter 54 of the code of 1849, p. 282, was followed by the act of March 30th, 1852
(Session Acts, p. 259), and the act of March 18th, 1861 (lb. 153).
8 Sessions Acts, 1852, p. 265, § 46 ; 1861, p. 169, § 75.
52 THOMAS V. CITY OF RICHMOND. [CHAP. II.
In this state of thing's the city of Richmoncl, in April, 1861, upon the
breakinL,' out of the rebellion, passed an ordinance for the issue by the city
of $300,000, of corporation notes of $2, $1, 50 cents, and 25 cents; and
the notes were accordingly issued ; the city receiving in exchange the bank
notes of the State then in circulation, between which and gold the differ-
ence at the time, compared with what it became subsequently, was small ;
five per cent to ten per cent.
On the 19th March, 18G2, and the 29th of the same month and year, a
so-called "legislature of Virginia," the body being composed of representa-
tives from parts of the State in rebellion against the Federal government,
passed an act, by whose language the issue of the sort of notes in question
was made valid, and the city obliged to redeem them.
In OctuV)er, 1868^ the rebclhon being now suppressed, and the city refus-
ing to pay the notes, one Thomas and others, holders of a quantity of them,
brought assumpsit against the city of Richmond, in the court below, to re-
cover certain ones which theyTieU. The declaration contained a speciaf
count on the notes and the common money counts. The defendants
pleaded the general issue and the statute of limitations. A jury being
waived, the case was tried by the court, which found : —
1st. That the notes were void when they were issued, because they were
-- / X ' issued to circulate as currency, in violation of the law and policy of the
^^^ / li State of Virginia, and,
2d. That the said notes were not made valid or recoverable by the acts
of the 19th March, 1802^ and 29th March, 1862, or either of them, because
the said acts were passed by a legislature noWecognized by the United
States, and in aid of the rebellion.
The court accordingly gave judgmcntfor the defendant. To review that
judgment the case was brought here by the plaintiff. /
Mr. Comvay Robinson for the plaintiff in error.
Mr. John A. Meredith, contra, for the city.
^Ir. Justice Bradley delivered the opinion of the court.
First. The court finds as a fact that the notes upon which the present
action is brought were issued to circulate as currency ; and, as matter of
law, that this was in violation of the lAw and policy of Virginia, and that,
therefore, the notes were void.
It i.s contended, however, that although the notes themselves should be
deemed void, yet the city received the money therefor, and ought not, in
conscience, to retain it ; and, therefore, that the action can be maintained
on the count for money had and received.^
If the defendant were a banking or other private corporation, and had
issued notes contrary to law, and had incurred penalties therefor, no penalty
being imposed upon the receiver or holder of the notes, this argument might
* Only fio imicli of tlie ojiiiiion is {^ivcn as relates to the coinit for money had and
rectived. Ko.
SECT. II.] THOMAS V. CITY OF RICHMOND. 53
be sound. ^ In the case of The Oneida Bank v. The Ontario Rank,^ in which
the defendant had issued post notes contrary to a statute of New York, it
was held that the holder could recover the money advanced therefor. " The
argument for the defendant against this position," says Chief Justice Com-
STOCK, "rests wholly on the idea that Perry, in receiving the post-dated
drafts, was as much a public offender as the bank or its officers issuing
them. . . . But such were not the relations of the parties. . . . Whatever
there was of guilt, in the issuing of the drafts, it was the creature of the
statute. ... By that authority, and that alone, the bank is prohibited
from issuing, but not the dealer from receiving ; and the punishment is
denounced only against the individual banker, or the officers, agents, and
members of the association. ... If the issuing of the drafts was prohib-
ited, and if they were also void. Perry, nevertheless, had a right to demand
and recover the sums of money which he actually loaned to the defendant."
This is in accordance with the general principles of law on this subject-
Lord Mansfield, in Smith v. Bromley, as long ago as 1 7G0, laid down the
doctrine, which has ever since been followed, in these words : " If the act
be in itself immoral, or a violation of the general laws of public policy, both
parties are in pari delicto, but where the law violated is calculated for the
protection of the subject against oppression, extortion, and deceit, and the
defendant takes advantage of the plaintiff's condition or situation, then
the plaintiff shall recover." ^ In that case the plaintiff had given the de-
fendant money to sign her brothei-'s bankrupt certificate, and she was
allowed to recover it back, the law prohibiting any creditor from receiving
money for such a purpose. Whilst the general principle has been fre-
quently recognized, the application of it to particular cases has been some- ^ ^c f^^
what diverse. Mr. Frere, in his note to Smith v. Bromley,* thus sums up //Yy<5/3 3jp^
the result of the cases : A recovery can be had, as for money had and re- i'^j/_j: / v *~
' ceived, (1st) where the illegality consists in the contract itself, and that i /
contract is not executed, — in such case there is a locus pcenitentioe, the / m -v -?' ^f f
delictum is incomplete, and the contract may be rescinded by either party; p'-^'-^^^ 6-z /
(2d) where the law that creates the illegality in the transaction was de. ^^^/v
signed for the coercion of one party and the pi'otection of the other, or
where the one party is the principal offender and the other only criminal '^"'''^ Ci i^A y^ , /^
from a constrained acquiescence in such illegal conduct, — in such cases f (> U^^.^-^ ^/f
there is no parity of delictum at all between the parties, and the party so ^^ j ^
protected by the law, or so acting under compulsion, may, at any time, resort
to the law for his remedy, though the illegal transaction be completed.^
1 Smart v^ Hyde, 73 Me. 332 ; White v. Franklin Bank, 22 Pick. 181 ; Curtis v.
Leavitt, 15 N. Y. 9, accord. — Ed.
2 21 N. Y. 496. 3 2 Dougl. 696, n. * 2 Dongl. 697, a.
6 See the cases collected in 2 Coinyn on Contracts, 108-131 ; 1 Selwyn's Nisi Prius,
87-100; 3 Phillips on Evidence, 119; 2 Greenleaf on Evidence, § 121, p. 120; Chitty on
Contracts, 550, 552, 553, and notes.
- ' iM^^^ir^^ <v^^^ yult- iaZ-^- ^^.0r,^U^^-^ ,^i^iw^ /L^i^ J'-y^^ ^^^^
54 THOMAS V. CITY OF RICHMOND. [CHAP. II.
Now, in cases of bills, or other obligations, illegally issued by a banking •
or other private corporation, which has received the consideration therefor,
it would enable them to commit a double wrong to hold that they might
repudiate the illegal obligations, and also retain the proceeds. Hence,
wherethe parties are not in pari delicto, actions are sustained to recover
back the mnnpyorQther_coiisideration received for such obligations, though
the obligations themselves, beingjigainstjaw^cimiwt^^^ The cor-
poi-atiourrs^rngTheTnlls contrary to law, and against penal sanctions, is
'^cmcd'more guilty than the members"ortBe communrty~"whOTgcelve the rn
B-JieneyeT^he receiving of them is not^xpressly prohibited^ The latter are"^
regarded as the persons intended to be protected bj^ the law ; and, if they
have not themselves violated an express law in receiving the bills, the prin-
ciples of justice require that they should be able to recover the money re-
ceived by the bank for them. But if the parties are in jyari delicto, as, if
the consideration as well as the btlts or other obligatTon is tainted withUle-
gality or immorahty, as it would be if loaned or adyauced^for the purpose
of auimg m anyTnegaTorim moral transaction, or if the receiving as well as
passing or issuing the bills is forbidden by law, then the holder is without
legarremedy^jmd_the_partiesjam Jeft tiillieinsfilKes.-
ButT^in the case of municipaljind other public corporatjoiis, another con-
sideration intervenes. They represent the public, and are themselves to be
protected against the unauthorized acts of their officers and agents, when it
can bejione_without injury to third parties. This is necessary in order to
guard against fraud and peculation. Persons dealing with such officers and
agents are chargeable with notice of the powers which the corporation pos-
sesses, and are to be held responsible accordingly. The issuing of bills as
.' a currency by_such a corporation without authority is not only contrary to
- -. positive law, but, being rdtra vires, is an abuse of the public franchises which
^^''r'^iave been conferred upon jL;, and the receiv^' of the bills, being chargeable
with notice of the wrong, is in pari delicto with the officers, and should have
no remedy, even for money had and received, against the corporation upon
which Kehas aided in inflicting the wrong. The protection of public corpo-
rations from such unauthorized acts of their officers and agents is a matter
of public policy in wliich the whole community is concerned. And those
who aid in such transactions must do so at their peril.
According to these principles no recovery could have been had against
the city, either on the bills themselves or on a claim for money had and
received. It was against the law of the State to issue them. It was a
I>enal oflfenco in both the person who paid and the person who received
tliem, and the^jwe jssuedJbyjLjnunlcT^ corporation which had no power,
and which was known to have no power to issue them.
"TTudgmetit affirmed.
SECT. II.] FOULKE V. SAN DIEGO AND GILA S. V. RAILROAD CO. 55
DAVID FOULKE v. THE SAN DIEGO AND GILA SOUTHERN
PACIFIC RAILROAD COMPANY.
In the Supreme Court of California, July Term, 1876.
[Reported in 51 California Reports, 365.]
Appeal from the District Court, Eighteenth Judicial District, County
of San Diego.
On the 17th of September, 1872, the defendant, by its president, em-
ployed Isaac Hartman, an attoruey-at-law, to conduct legal proceedings in
the courts for the condemnation of certain lands in the city of San Diego,
for the use of the defendant, and agreed to pay him therefor the sum of
one thousand dollars. Hartman entered upon the performance of the
services, a^id continued in the same until directed by the defendant to
discontinue the proceedings. During the rendition of the services the
defendant had notice of the same, through its officers, who frequently con-
ferred with him in relation to the business. On the 13th of September,
1873, Hartman assigned his demand to the plaintiff; who brought this
action t^^ecover the same. The complaint contained a count on the spe-
cial promise to pay one thousand dollars, and also averred that the services
were worth that sum. The court found as a fact that the defendant
agreed to pay one thousand dollars, but failed to find thej^e of Jhejer-
vices, andTendered judgment forjthe_plaintiflLfor the one~thousand dollars.
The defendant appealed^fronTthe judgment and from an order denying a
new trial.
McConnell, Bichiell and Rothchild for the appellant.
A. Brunson for the respondent.
By the Court, McKinstry, J. Section 10 of the act of 1861, concerning
railroad corporations, provides : " No contract shall be binding upon the
company unless made in writing."
In Pixley v. W. P. R. R. Co.^ it was held that the clause above quoted
referred to executory and not to executed contracts, and that when a cor-
poration takes and holds the benefit derived from the performance of a
contract not in writing, it is liable to the extent of the benefit received.
There are indeed dicta in the opinions delivered in Pixley v. Western
Pacific Railroad Company, to the apparent effect that where all has been
done by the other contracting party which the contract requires of him,
the corporation should be held to have ratified the express contract, and a
recovery be had according to the terms of such contract.
But these were not called for by the circumstances of that case, which
was an action on the qiiantxim meruit.
1 33 Cal. 198.
56 MORVILLE V. AMERICAN TRACT SOCIETY. [CHAP. II.
The true rule to be deduced from tlie opinions in Pixley v. Western
Pacific Railroad Company, is, the provision of the statute must be limited
to contracts BLboHy executory. It cannot refer to those liabilities whicli
"tlurfaw itself Implies from benefits received and actually enjoyed, where the
services have been performed on the one side and received and enjoyed on
the other.
In the last dags of cases, however, the action must be brought upon the
implied promisg^^aiid^ the recovery must be limited to the value of the
actual benefitreceiyedi_
I'he record of the case before us contains no finding of the value or
reasonable worth_iif_Jlie services^ performeS^by plaintiff's assignor.
Judgment and order reversed, and cause remanded for a new trial.
ROBERT M. MORVILLE v. AMERICAN TRACT SOCIETY.
Ix THE Supreme Judicial Court of Massachusetts, September 7, 1877.
^Reported m 123 Massachusetts Reports, 129.]
!MoTiON' in the Superior Court to accept an award of three arbitrators
upon a submission, entered into before a justice of the peace under the
Gen. Sts. c. 1-47, § 1, of the following demand : "The right of R. W. Mor-
ville to recover from the American Tract Society the sum of $5000 alleged
to have been given in the month of March, 18G9, hj said MorvHle (under
the assumed name of ' Union ') to said society, and by said society to have
been received and accepted upon certain conditions, to be by said society
performed, which jt is allegedT^Lave_jnot]^en fulfilled^nd for breach of
which said sum is claimed with interest."
The award of the arbitrators, signed by all of them, after stating that
the parties appeared before them, presented their evidence, and were heard
by counsel, proceeded as follows : " Whereupon the undersigned considered
the matter, and do now determine and award that the said Robert W.
Morville shall receive and recover from the said American Tract Society
the sum of $4, GOO, which shall be in full for all claim for principal and
interest upon tlie said demand submitted to us ; and_we do further award
that the costs (if this arbitration shall be paid by the said American Tract
Society, which costs we do assess and tax at the sum of $200."
The arbitrators annexed to the award the following writing as the foun-
dation of the claim submitted to them : —
litWTON, March If), 18G9. .$5000. The American Tract Society ac-
knowlcidgc the receipt of five thousand dollars from a friend, under the
name of Tnion, to whom tlie same shall be repaid, in case the society is
SECT. II.] MOKVILLE V. AiMERICAN TRACT SOCIETY. 57
not allowed to retain its catholic condition, and unless fifty thousand dol-
lars be raised for evangelization purposes. Julius A. Palmer, Treas., by
J. Wyeth Coolidge, Ass't Treas'r.
On this paper was the following indorsement : Boston, May 20, 1870.
It has been observed by the donor that the term of five years, in which
the sum of $50,000 was to be raised, was not specified in the receipt, and
he requests me to state that that was the understanding, which I hereby
do state and acknowledge. J. Wyeth Coolidge.
The defendant objected to the acceptance of the award, on various
grounds, the following being those relied upon at the argument : —
" 1. That it was not competent for the defendant to submit the demand /^
to arbitration. '^X
" 2. That it was not competent for the defendant to make the ^
contract." ^
Judgment was ordered for the plaintiff upon the award ; and the defend-
ant alleged exceptions.
J. W. May for the defendant.
//. D. Hyde for the plaintiff.
Colt, J. The plaintiff paid five thousand dollars to the American Tract
Society, under an agreement with the treasurer of that society that it
should be repaid to him in case the society should not be allowed to retain
its catholic condition, and unless fifty thousand dollars be raised within five
years for evangelization purposes. A receipt for the money, signed by the
ti'easurer, and reciting that agreement, was given to the plaintiff. There
was a failure of one of the conditions named, but the society refused to pay
the money back to the plaintiff.
The right of the plaintiff to recover the money so given was submitted
by the parties to three arbitrators, by a submission entered into before a
justice of the peace under the Gen. Sts. c. 147. An award in favor of the
plaintiff was duly returned to the Superior Court, and many objections
were there made by the defendant to its acceptance. It is necessary to
consider only those which were relied on at the argument.
The defendant insisted that the contract made with the plaintiff and
the submission to arbiti'ation of the claims arising under it, were not within
the chartered powers of the society.
The power to make all such contracts as are necessary and usual in the ; >
course of business, or are reasonably incident to the objects for which a '•
private corporation is created, is always implied, where there is no positive
restriction in the charter. Thus it is not necessary that there sliould be
express authority to borrow money, or to make negotiable paper, if such is
the usual and proper means of accomplishing that object^ It isThe pur- I ,
1 Ouly so mucli of the case is given as relates to this question. — Ed.
;^
58 MORVILLE V. AMERICAN TKACT SOCIETY. [CHAP. II.
pose of the charter of the defendant to create a corporation with power to
receive and expend for the purposes named all money given for immediate
use. If this was all, there would be strength in the position that the
power to receive and hold money to any considerable amount or for any
great length of time, on deposit, or in trust for any purpose, was not con-
ferred by the charter. But there is another clause which gives the right
to hold real and personal estate for the purpose of securing a limited annual
income to be appropriated to the objects of the society. Under this pro-
vision we tliink this contract can be supported. It must be treated as
valid, unless it appears afhrmatively to be a contract to do something
which is beyond the reasonable exercise of the power granted. We cannot
say as matter of law that the right given to a corporation to take and hold
property for the purpose of securing a specified yearly income does not
imply the right to receive money within the limits named, upon giving an
agreement to return it upon conditions which are not illegal and do not
violate its charter, and under which the income of the money is secured
to the corporation, so long as the right to hold the fund so obtained con-
tinues. To hold otherwise would be to declare void many conditional gifts
to charitable and educational institutions. It is enough that an award by
arbitrators, having full power to settle the facts as well as the law between
the parties, cannot be set aside because the defendant is held responsible
on such a contract.
There is another answer to this objection which is equally satisfactory.
The question is upon the acceptance of the award ; no question of pleading
is involved. The award is binding, if in any form of action the plaintiff is
entitled to recover. If the defendant were to be allowed the full benefit
of the point made, the plaintiff could only be prevented from enforcing his
express contract. The money of the plaintiff was taken and is still held
by the defendant under an agreement which it is contended it had no
power to make, and which, if it had power to make, it has wholly failed
on its part to perform. It was money of the plaintiff, now in the posses-
sion of the defendant, which in equity and good conscience it ought now
to'pay m'er, and whicTTmay be recovered iu an action for money had and
received. The illegality is not that which arises when the contract is j.u~"
violation of public policy or of sound morals, and under which^ the law will
gFve no aid to either party. The plaintiff himself is chargeable with no
^llcgaT act, and the corporation is the only one at fault in exceeding its
corporate powers by making the express contract. TFe plaintiff is not
Keeking to enf(jrce that contract, but only to recover his own m^ney and
prevent the defendant fnjin unjustly retaining the benefit of its own illegal
act. He Is doing nothing which must be regarded as a necessary affirmance
of an~ illegal act.
'Ifie right to recover tiie riniuey upon lliu implied promise, under like
circuinstanccs, has been heretofore recognized by this court.
SECT. II.] THOMPSON V. WILLIAMS. 59
In White v. Franklin Bank,^ where an express contract was made by a
bank for the payment of a deposit at a future day certain, against the pro-
hibition of the Rev, Sts. c. 36, § 57, it was held that, while no action could
be maintained by the depositor upon the express contract, yet he might
recover back the money, without a previous demand, in an action com-
menced before the expiration of the time, the parties not being in pari
delicto, and the action being in disaffirmance of the illegal contract. The
general proposition, that where money is paid on a contract which is merely
prohibited by statute, and the receiver is the principal offender, it may be
recovered back, was laid down in that case by Wilde, J,, who declared it
to be not only consonant with principles of sound policy and justice, but
to have been now settled by authority, whatever doubt may have been
formerly entertained. "To decide," he adds, "that this action cannot be
maintained, would be to secure to the defendants the fruits of an illegal
transaction, and would operate as a temptation to all banks to violate the
statute, by taking advantage of the unwary, and of those who may have
no actual knowledge of the existence of the prohibition."
Again, in Dill v. Wareham,^ where a town made a contract with refer-
ence to certain fishei'ies within its limits which it had no authority to
make, and which it refused to perform, it was decided that the plaintiff
might recover back money paid in advance on the contract, as money had
and received by the town to his use.
The same principle is recognized in New York. Utica Ins. Co. v. Scott ; ^
Utica Ins. Co. v. Cadwell ; * Utica Ins. Co. v. Bloodgood.®
Exceptions overruled.
THOMPSON V. WILLIAMS.
In the Supreme Court of New HxVmpshire, March, 1878.
[Reported in 58 Kew Hampshire Reports, 248.]
Assumpsit for $75, the price of two cows sold by the plaintiff to the
defendant on Sunday. Fifteen days after the sale the plaintiff took the
cows from the defendant, claiming that the title was not to pass until
the price was paid. For that taking the defendant brought an action of
trespass against the plaintiff, and recovered a judgment (the damages being
assessed at $75) on the ground (as the record shows) that the cows were
the property of the defendant by virtue of the sale on Sunday, and the sale /
was absolute. That judgment the plaintiff has satisfied.
At the trial of this case the plaintiff was the sole witness. On cross-
examination he testified that on the Sunday of the sale he was in his saw-
1 22 Pick. 181. 2 7 Met. 438. 3 19 john,s. 1,
* 3 Wend. 296. & 4 Wend. 652,
K
60
THOMPSON V. WILLIAMS. [CIIAP. IT.
*^v
mill makiug repairs, when the defendant came in ; that no one else was
then presen't ; that the defendant wanted to buy the cows, and they talked
ahout a sale of them ; that the defendant went down and saw them, and
came back to the mill ; that one Wiggiu came in ; that the defendant sa^d
he had been down to see the cows, and had made up his mind to give $75
for them ; that the plaint ift' said he could not sell them for that, but finally
concluded to accept the olfer, and the bargain was made and the defend-
ant drove them home ; and that at each interview they talked a consider-
able time about the bargain.
The sale was not a work of necessity or mercy. The defendant moved
for a nonsuit, on the ground that the sale was prohibited by the Sunday
law.^ The court denied the motion, and the defendant excepted. There
was nothing for the jury, unless the question whether the sale was
" to the disturbance of others " was a question of fact. Tjie^ plaintiff
claimed that the Sunday law jsnot a defence injthis case, and that tFe
defendant, having asserted and maintained his titleuuder the Sunday sale
in the Tormer'~su]t,^is estoppedMn_this_action to set" up tlie defence of
Sabbatical iTIegalitj;. Verdict for the plaintiff.
IlobhJfofiiie defendant.
Small for the plaintiff.
Smith, .J. It is matter of law that whether any one besides the plaintiff
and the defendant was present or not, the sale was business of the plain-
tiff's secular calling, done " to the disturbance of others," within the mean-
ing of Gen. St. c. 255, s. 3. Varney v. French ; ^ Smith v. Foster ; ' Bank
V. Thompson ; * George v. George.^
The defendant is not cjto^ped by the judgment in the trespass suit from
setting up the Sunday_ law as ajlefence! Tlie maxmi i?i pdrnTehcto, etc:;
was not established for the benefit of one party or of the other. The law
docs not leave the weaker at the mercy of the stronger, jLor_g.Lve the_
vendor a^ remedy by allowing him to retake the property illegally sold.
It leaves the parties where their illegal contract leftthem : when executed,
ITwnnibt assist the party who has parted^ witk bis money or propertyilQ-
recover Tl^'Back ; w^hen executory, it will not compel performance. It
would not leave the parties where their illegal contract left them if it did
not maintain the title acquired by tlie contract. Williams was in posses-
sion of the cows, as of his own property, by the assent of Thompson,
; When the latter retook them, Williams was enabled to maintain trespass
/' bccauBO Thompson could not be heard to controvert his title. Smith v.
Ik'aii ;• Coburn v. Odell.'' The verdict must be set aside.
No7isuit.
> Gen. St. c. 2r,5, 8. 3. « 19 N. H. 233. » 4^ n. H. 215.
« 42 N. H. 309. 6 47 N. II. 35. « 15 N. H. 579.
7 30 N. H. 510, 552.
SECT. II.] POWER V. WELLS. IDEM V. EUNDEM. 61
(d.) Wilfully or without Excuse.
DUTCH V. WARREN.
At Guildhall, before Pratt, C. J., Michaelmas Term, 1721.
[Reported in 1 Strange, 406. J
Case for money had and received to the plaintiff's use. The case was,
the plaintiff' paid money on a promise to transfer stock at a future da^,
which not being done the plaintiff* brought this action. At the trial the
doubt was, whether the plaintiff" had brought a proper action, because at
the time this money was paid the plaintiff never intended to have it again ;
and the promise to transfer the stock was a sufficient consideration for his
parting with the money. The Chief Justice directed the court should be
moved ; and they were all of opinion, that the action was well brought ;
not for the~whole money paid, but the damages m not transferring the
^ock at that time, which was a loss to the plaintiff*, a.nd an advantage to
the defendant, who was receiver of the diff*ereuce money to the use of the
pTaintitf.
ANONYMOUS.
At Guildhall, before King, C. J., Michaelmas Term, 1721.
[Reported in 1 Sti-ange, 407.]
A MAN paid money on a contract for the old stock of a company, and the
party gave him so many shares in the additional stock. Upon this the
other brings his action for the money, as so much money had and received
to his use. And the Chief Justice held, it well lay, because the thing con-
tracted for was not delivered : he said it would have been otherwise, if the
thing contracted for had been delivered, though to a less vahre. "
POWER V. WELLS. IDEM v. EUNDEM.
In the King's Bench, May 23, 1778.
[Reported in Cowper, 818.]
Upon showing cause against a new trial, in the above causes, Mr. Justice
Ashhurst, before whom they were tried, reported as follows : —
The first was an action for money had and received, brought to recover
a sum of 1\l. paid by the plaintiff* upon the exchange of a mare of his, for
62 TOWERS V. BARRETT. [CIIAP. II.
a horse of the defendant, which the defendant warranted to be sound ; but
which was clearly proved to be unsound at the time. Immediately upon
discoveriu<,' tliat the horse was unsound, the plaintiff sent it back, together
with a letter by a person who put the letter and halter into the defendant's
hands in the defendant's yard, but he refused to take them. The person
at the same time demanded the twenty guineas and the plaintiff's mare
given in exchange; but the defendant said he had sold her, that he would
have nothing to do with the person sent by the plaintiff, and turned him
out of his yard. Upon which the plaintiff brought both the above actions.
The second was an action of trover for the mare ; both causes stood for
trial in the paper together. As to the first, an objection was made at the
trial to the form of the action, and 1 was very doubtful how far it was
maintainable. But it was agreed that I should sum it up to the jury, and
if they should be of opinion with the plaintiff upon the facts proved, then,
instead of making a special case, it should be put in the form of a motion
for a new trial. The jury found for the plaintiff. As to the second action,
it was agreed that a verdict should be taken for the plaintiff upon the evi-
dence given in the first cause, but with liberty to move for a new trial ;
and it was understood between the parties, that the defendant should be
entitled to the same redress in both causes, in case the opinion of the court
should be in his favor, as if the whole had been stated in the form of a
case.
Upon showing cause, the question was. Whether the above actions were
rightly conceived ? or. Whether the plaintiff should not have brought a
special action on the easel
Mr. Wheler for the plaintiff.
Mr. Newnham for the defendant.
The court were of opinion that both actions were misconceived. First,
the action for money had and received, with no other count, was an im-
proper action to try the warranty. Second, the action of trover could not
be maintained, because the property was transfeiTcd by the exchange.
Accordingly a nonsuit was ordered to be entered up in both causes.
TOWERS V. BAREETT.
In the King's Bench, February 7, 1786.
[Reported in 1 Term Reports, 133.)
Action for money had and received, and for money paid, laid out, and
expended.
On the trial of this cause before Lord Mansfield, at the sittings at
Westminster after Ijist Michaelmas term, it appeared that this suit was
SECT. II.] TOWERS V. BARRETT. 63
instituted by the plaintiff to recover ten guineas, which he had paid to the
defendant for a one-horse chaise and harness, on condition to be returned
in case the plaintiff's wife should not approve of it, paying 3s. 6rf. per diem
for the hire of it. This contract was made by the defendant's servant, but
his master did not object to it at the time. The plaintiff's wife not approv-
ing of the chaise, it was sent back at the expiration of three days, and left
on the defendant's premises, without any consent on his part to receive it ;
tiie hire of 3s. Qd. per diem was tendered at the same time, which the de-
fendant refused, as well as to return the money.
After a verdict had been given for the plaintiff. Sir Thomas Davenport
obtained a rule to show cause why a nonsuit should not be entered on the
ground that this action for money had and received would not lie, but that
it should have been on the special contract.
Ershine now shewed cause. This case is very distinguishable from those
of Power V. Wells -^ and Weston v. Downes,^ on which this rule was obtained.
In the former of those cases, it was determined that a warranty could not be
tried in an action for money had and received ; and in the latter, that such
an action did not lie, the payment having been made on a contract which
was still open, and disputed hy the defendant. But this is the very case
put by Mr. Justice Ashhurst,^ where he said this action would have lain.
The principle is this : where a man enters into a contract for a sale, and
he warrants that the object of that sale shall be of a certain denomination,
and he does no act to disallow that contract, there money had and received
will lie against him ; but where the warranty is disputed, that must be
tried in an action on the special contract. In the present case, there was
no warranty; it was only a sale on condition which failed. And it was
held in Moses v. Macferlan* that an action for money had and received
will lie to recover money paid by mistake, or upon a consideration which
happens to fail.
Sir Thomas Davenport in support of the rule. Wherever there is a spe-
cial contract, whether conditional or absolute, or in whatever terms it may
be conceived, so long as that contract remains open to be disputed, and the
party has done nothing to acknowledge the contract, or to preclude himself
from entering into the nature of it, the defendant ought to have notice on
the declaration that he is sued on that contract.
The cases of Power v. Wells and Weston v. Downes are decisive as to
the present. This comes within the principle laid down by Mr. J. Buller
in the latter of those cases, where he said, " Where the contract is open, it
must be stated specially,"
The chaise was left on the premises, but the defendant refused to receive
it : then the question is, whether the plaintiff had a right to return iti and
how that right is to be tried] — There are several matters here in contro-
versy, which cannot be tried in an action for money had and received :
1 Cowp. 818. 2 Dougl. 23. 3 Don"l. 24. « 2 Burr. 1012.
64 TOWERS V. BARRETT. [CHAP. II.
1st, "VMiether in fact there were any coutract ; 2dl3', The extent of it ; and,
3dly, What the phiintitf ought to have paid per diem for the hire ; for it is
open on this declaration to say that the defendant ought to have had 5s.
pfr diem, as well as 3s. M.
AVhen the party has done anything to preclude himself from going into
the contract, then money had and received will lie ; but here the defendant
disputes it.
Lord Mansfield, C. J. I am a great friend to the action for money
had and received ; it is a very beneficial action, and founded on principles
of eternal justice.
In support of that action, I said in the case of Weston v. Downes, that I
would guard against all inconveniences which might ai-ise from it, particu-
larly a surprise on the defendant ; as where the demand arises on a special
contract, it should be put on the record. But I have gone farther than
that ; for if the parties come to trial on another ground, though there hap-
pen to be a general count for money had and received, I never suffer the
defendant to be surprised by it, unless he has had notice from the plaiutifiF
that he means to rely on that as well as the other ground.
But consistently with that guard, I do not think that the action can be
too much encouraged. Here there is no pretence of a surprise on the de-
fendant ; there was no other question to be tried. The defendant knew the
whole of the matter in dispute as well as the plaintiff. On what ground
can it be said that this is not money paid to the plaintiff's use 1 The de-
fendant has got his chaise again, and, notwithstanding that, he keeps the
money.
The case was well put by Mr. J. Asrhurst in Weston v. Downes, and I
think this is exactly like that. I was of opinion at the trial that this
action would lie ; and I still continue of that opinion.
W^iLLES, J. The only difficulty is to distinguish this case from that of
Weston V. Downes ; and I think it differs from that on two grounds.
That was an absolute, this a conditional agreement. And another more
material difference is, that this agreement was at an end ; the contract was
no longer open.
In the case of Weston v. Downes, Mr. J. Buller said, "This action will
not lie, as the defendant has not precluded himself from entering into the
nature of the contract, by taking back the last pair of horses." But, in the
present case, the defendant has precluded himself by taking back the chaise.
I think the verdict is right.
A.SHIIU11ST, J. This action is maintainable ; for it is different from the
cases of Weston v. Downes and Power v. Wells. The latter was merely
a case of warranty. In these actions the party cannot desert the warranty
and resort to the general count, because the warranty itself is one of the
facts to l>e tried.
As to that of Weston v. Downes : on the first contract there was an
SECT. II.] TOWERS V. BAllRETT. 65
agreement to tuke back tlie horses, provided they were returned within
a month : tliat would have been like the present case, if they had been
returned within that time ; but there was au end of the first contract, for
the plaintiff took a second, and then a third pair of horses : that was a new
contract, not made on the terms of the first, and that is distinguishable
from the present case.
But laying that determination out of the question, this is like the com-
mon cases where either pai'ty puts an end to a conditional agreement.
Here the condition was to return the chaise if not approved of; therefore,
the moment it was returned the contract was at an end, and the defend-
ant held the money against conscience and without consideration.
Bdller, J. On the very principle in "Weston v. Downes and Power v.
Wells, which determined that the action for money had and received would
not lie in those cases, it is clear that this action will lie.
It is admitted that if the defendant had actually accepted the chaise the
action would lie ; but it has been contended that he did not receive it.
Then let us see whether there be not something equivalent to an accep-
tance'? I think there is, from the terms of the contract. There was
nothing more to be done by the defendant ; for he left it in the power
of the plaintiff to put an end to the contract. Here it was not in his
option to refuse the chaise when it was offered to him ; he was bound to
receive it, and therefore it is the same as if he had accepted it.
The distinction between those cases where the contract is open, and where
it is not so, is this : if the contract be rescinded, either, as in this case, by
the original terms of the contract, where no act remains to be done by the
defendant himself, or by a subsequent assent by the defendant, the plain-
tiff is entitled to recover back his whole money; and then an action for
money had and received will lie. But if the contract be open, the plain-
tiff's demand is not for the whole sum, but for damages arising out of that
contract.
In a late case before me on a warranty of a pair of horses to Dr. Compton
that they were five years old, when in fact they turned out to be only four,
and they were not returned within a certain time, I held that if the plain-
tiff would rescind the contract entirely he must do it within a reasonable
time, and that as he had not rescinded the contract he could only recover
damages ; and then the question was, what was the difference of the value
of horses of four or five years old ]
So that the difference in cases of this kind is this ; where the plaintiff is
entitled to recover his whole money, he must show that the contract is at
an end ; but if it continue open, he can only recover damages, and then he
must state the special contract and the breach of it.
Jitde discharged.
G6 GILES I'. EDWAKDS. [CHAP. II.
GILES AXD Others v. EDWARDS.
In the King's Bench, May 5, 1797.
[Jieportcd in 7 Term Reports, 181.]
This action for money had and received was tried at the last Shrewsbury
asjsizes before Mr. J. Lawuence. On the Gth of June, 1791, the defendant
agreed to sell to the plaintiffs all his cord-wood growing at Tredgodoer in
Shropshire, at lis. Gd. per cord ready cut; the wood was to be coaled and
cleared from off the premises by Michaelmas, 1792, and the money was to
be paid on the Ist of March, 1792. It also appeared that the custom was
fur the seller to cut off the boughs and trunks and then cord it, and for the
buyer to re-cord it, after which it became the property of the buyer. The
defendant cut sixty cords, ten of which he corded, and the plaintiffs re-
corded half a cord and measured the rest. On the 8th of March, 1792, the
plaintiffs paid the defendant twenty guineas ; but the defendant neglecting
to cord the rest of the wood, the plaintiffs brought this action to recover
back the twenty guineas, as having been paid on a contract that had
failed.
It was objected at the trial that this action could not be maintained, the
contract being still open, and that the plaintiffs should have brought a
special action on the case for non-performance of the contract, on the prin-
ciple established in Weston v. Downes,^ Power v. Wells,^ and Towers v.
Barrett.' That the plaintiffs could now abandon the contract altogether,
as they had acted under it. But the learned judge was of opinion that,
as it was owing to the ftiult and negligence of the defendant that the con-
tract which was entire was not can'ied into execution, the plaintiffs were
at liberty to consider the contract at an end, and recover back the money
that they had paid, the consideration having failed. That what had been
done by the plaintiffs could not be considered as an execution of the con-
tract in part, for that all that they had done was merely to measure the
wood and re-cord a very small part of it. The plaintiffs obtained a verdict ;
to set aside which, and to enter a nonsuit, a motion was now made by
Wigley on the above ground : but
The court were clearly of opinion that the directions given at the trial
were right.
L<jrd Kenvon, C. J., said, this was an entire contract; and as by the
defendant's default the plaintiffs could not perform what they had under-
taken to do, they bad a right to put an end to the whole contract and
recover back the money that they had paid under it ; they were not bound
to take a part of the wood only. Rule refused.
« Dougl. 23. 2 cowp. 818. « 1 T. R. 133.
'SECT. II.] HULLE V. IIEIGHTMAN. 67
CARTWRIGHT v. ROWLEY.
At Msi Frms, before Lord Kenyon, C. J., February 19, 1799.
[Reported in 2 Espiiiasse, 723.]
Assumpsit for money had and received.
The phihititf was the patentee of a steam-engine, and had employed the
defendant, who was an engine-maker, to make some engines for him, under
the patent. In the progress of the work the plaintiff had advanced several
sums of money to the defendant, which he sought now to recover back, on
the ground that the defendant had been so inattentive to the order, and so
long in completing the engines, that the opportunity of disposing of them
was lost, so that they became useless to the plaintiff. The gi'oimd relied
upon to establish the plaintiff's right to recover in this action was, that the
money was paid without any consideration ; the work for which it had
been given having been rendered, by the defendant's own default, of no
value to the plaintiff.
Erskine, Gibhs, and F. Vaughan for the plaintiff.
Garroio, Damjner, and Best for the defendants.
Lord Kexyon, C. J. This action cannot be maintained, nor the money
recovered back again by it ; it has been paid by the plaintiff voluntarily ;
and where money has been so paid, it must be taken to be properly and
legally paid ; nor can money be recovered back again by this form of action,
unless there are some circumstances to show that the plaintiff paid it
through mistake, or in consequence of coercion. I recollect a case of
V. Pigott, where this action was brought to recover back money paid to the
steward of a manor for producing at a trial some deeds and court-rolls,
and for which he had charged extravagantly. The objection was taken,
that the money had been voluntarily paid, and so could not be recovered
back again; but it appearing that the party could not do without the
deeds, so that the money was paid through necessity and the urgency of
the case, it was held to be recoverable.
The plaintiff was nonsuited.
HULLE V. HEIGHTMAN.
In the King's Bench, January 27, 1802.
[Reported in 2 East, 145.]
Indebitatus assumpsit for wages due to the plaintiff as a seaman on
board a Danish ship, whereof the defendant was captain, from Altona to
London. Plea non assurnimt. At the trial before Le Blanc, J., at the
68 HULLE T. IlEIGHTMAN. [ciIAr. II.
sittings after hust term at Guildhall the plaiiititi' proved a service iu fact as
a seauiau ou board the ship at aud from Altoua until her arrival at the
port of Loudou. Aud it appeared that after the ship had delivered her
cargo here, the captain would not give the seamen victuals, but bid them
go on shore, saying he could get plenty of their countrymen to go back for
their victuals only since the peace. That the plaintiff and others went on
shore ; and when the captain reipiired them a few days afterwards to go on
board again, they refused, saying it was too late, for they had the law
uf him. (They had then brought actions against him.) That previous to
his departure for Denmark he again required them to come ou board,
which they again refused. The defence rested ou certain written articles
of agreement signed by the plaintiff and the rest of the crew, whereby it
appeiU"ed that they were hired for the voyage from Altoua to London and
back again. And there was an express stipulation, that the seamen should
assist in bringing the ship back again and making her fast in a proper
place, before they could make any demand upon the captain for the wages
due, under a certain penalty ; and another stipulation that no person should
iu foreign parts demand any money of the captain, but be contented with
the wages received in advance, until the voyage was completed to the satis-
faction of the captain and owners, and the ship and goods again safely ar-
rived at Altoua. And also that it should at all times be at the captain's
own option whether he would give them any money in foi'eign parts or not.
That in like manner no person should demand his discharge in foreign
parts, but be obliged to perform the voyage. It concluded with a general
clause of obedience to the captain, aud for the performance of the duty of
the crew ; and that if any one should show himself averse therein, he
should not only according to law forfeit the whole of his wages, but also
suffer punishment, etc. On proof of this agreement it was insisted by the
defendant's counsel at the trial, that the plaintiff had mistaken his remedy,
and that an action of indebitatus assmnj^ait would not lie, but that he
ought to have declared specially. On the other hand it was contended,
that the plaintiff might recover in this form of action for the rate of his
wages up to tlie time when he was wrongfully turned out of the ship. But
Lk liLANC, J., being of opinion that the wrongful act of the captain did not
rescind the special contract by which the plaintiff was precluded from de-
manding his wages till the end of the voyage ; though it gave a cause of
action against the captain for the tort whereby the plaintiff was prevented
frouj earning Ijis wages under the contract, directed a nonsuit ; with leave
to move to set it aside and enter a verdict for the plaintiff for G^. 17s., the
amount of tlic wages due to him at the time he left the ship, if he were en-
titled to recover.
Gibbt now moved accordingly.
The court, referring to the case of Weston v. Downes,^ as establishing the
1 DoukI. 23.
SECT. II.] MUSSEN V. PRICE. G9
principle that while the special contract remained open and not rescinded
by the defendant, the plaintilf could not recover on the general counts in
assumpsit, held that the nonsuit was proper, the contract still operating,
and Be/used tlie rule.
MUSSEN V. PRICE.
In the King's Bench, June 28, 1803.
[Reported in i East, 147.]
This was an action for goods sold and delivered, tried before Rooke, J.,
at the last Lancaster assizes ; and the only question was, Whether the
action were commenced before the time of credit on which the goods had
been contracted to be bought was expired 1 The goods in question were a
quantity of cotton, valued at 217^., for which payment was to be made by
the defendants in three months after the 15th of September 1802 (the day
on which the bargain was concluded), by a bill of two months. The action
being commenced in Hilary term last, before the expiration of five months
from the 15th of September preceding, the defendant's counsel objected
that it was prematurely brought, and therefore that the plaintitf should be
nonsuited ; but the learned judge held, that unless the defendants could
show (which they did not do) that they had given or tendered such a bill
at the end of the three months, the action would lie for goods sold and de-
livered. Accordingly the plaintiff recovered, but the point was saved for
the consideration of the court. And in the last term Raine obtained a
rule nisi for setting aside the verdict and entering a nonsuit, principally
Tipon the authority of a case of Millar v. Shaw, at Lancaster Lent assizes,
1801, before Chambre, J., where the plaintiff was nonsuited on a similar
objection,
Cockell, Serjt., Hoh'oyd, and Yates now showed cause against the rule.
Topping and J. Clarke, contra.
Lord Ellenborough, C. J. The only question here is as to the form of
declaring. There is no doubt but that the plaintiff might have recovered
by bringing his action on the special contract, and laying the breach for
the non-delivery of a bill at the end of the three months. But the ques-
tion is, whether he has not also this remedy. And, if it were not for the
authority of the case cited before Mr. Justice Chambre, whose opinion is
entitled to great w^eight, 1 should have thought that this was an absolute
agreement for a ci-edit of three mouths, with a stipulation on behalf of the
defendant, that at the end of the tliree months he should be at liberty to
give the plaintiff a bill at two months for payment, which was to be taken
as such if the condition were performed ; and such it is always considered
70 MUSSEN V. PRICE. [CIIAP. II.
in that part of the country. But still the barjj:aiu between the parties was
for a credit of three mouths. That was the Icauing of my mind before I
heard of the decision of the learned judge which has been relied on ; and
so, I must own, it is in some degree still. And I think the plaintifif's ar-
gument was well illustrated by the case put, of a man taking in payment
for goods a bill drawn by the vendee on another, payable at a future time.
There if the bill be dishonored, it is in common experience that the payee
may bring his action immediately ; and yet, taking the whole transaction
toi'ether, it might as well be said in that case, that there was a credit given
for so many months as the bill had to run ; and that before that period the
only remedy of the party was a special action on the case for the damage,
by reason of the dishonoring of the bill. But no such action has ever been
brought, though the occasioii must have often occurred. Whatever respect
therefore I feel for the opinion which has been cited, the present feeling
of my mind is that this action is well brought.
Grose, J. This action is not brought upon an express assumpsit be-
tween the parties, but upon an assumpsit imphed in law. Then how does
the case standi Two persons agree on what terms the one will buy and
the other sell certain goods. The seller offers them at a certain price;
but the buyer says that he cannot pay for them at once, but at the end of
three months he will give his bill payable at two months. The seller
assents to this ofter, because at the end of three months' time he expects
to have a bill which he can negotiate, and thereby raise money. This then
is no implied contract whereon to raise an implied assumpsit, but an ex-
press contract including the terms on which the one agreed to buy and the
other to sell, for the non-performance of which the party has his remedy in
damages. The action then ought to have been brought for the not giving
the bill, which the defendant had undertaken to do, and not for goods sold
and delivered, in which case the promise is to be implied from the circum-
stances of the case. But this is not the case of an implied but of an
express promise.
Lawrence, J. I am of the same opinion. The proper ground of action
is the non-performance by the defendant of his agi-eement with the plain-
tiff. That agreement was that the defendant should pay for the cotton in
a particular way, namely, that at the expiration of three months he should
give the plaintiff his bill payable at two months. Then how was the con-
tnict broken 1 By not giving at the end of three months his bill at two
months ; for which breach of contract the remedy lies in damages. That
therefore was the mode in which the action should have been brought : in
wliich action the plaintiff would have recovered damages against the de-
fendant for his not having given the l)ill, such as the loss of interest, etc.,
and the action should n(jt have been on a promise to pay the value of the
goods before the expiration of the credit. The argument for the ])laintiff
goes uiKjii an a.s.sinniptioii tliat thf giving of the bill was a condition upon
SECT. II.] MUSSEN V. I'KICE. 71
which the credit was to be extended beyond the three months. But I see
no condition in the contract. If it had been, that if at the end of three
months the defendant conld give a bill at two months the plaintiff should
take that in payment, there might have been some foundation for the ar-
gument ; but there are no words of condition. The giving of the bill at
two months was a term introduced into the contract for the benefit of the
seller, that at the end of three months he might have in his hands an in-
strument which he could negotiate. If the credit had been given generally
for the whole five months, he would have been out of cash all the time ;
but he was to give the defendant the benefit of five months' credit, while
he had only the disadvantage of giving it for three months. As to the case
put of a bill payable at a future day given for payment, upon which, if
dishonored, the drawer may be immediately sued, I think a good answer
was given to it at the bar. If there were no agreement for time, the party
takes it as payment ; and therefore if it turn out to be good for nothing,
the creditor has not received that which the other undertook to give him,
and may therefore pursue his remedy immediately.
Le Blanc, J. I think this action was brought before the time for which
I consider that credit was given to the defendant. Here is an express
promise proved between the parties. The seller was to stand upon the
credit of the defendant alone for three months, and then he was to have in
addition a third person's credit for two months longer ; so that altogether
the defendant was to have credit for five months before he was called upon
to pay. But he will not have the benefit of his contract if he be called
upon for the full sum before the expiration of the five months' credit. The
cases alluded to, and which have only occurred at nisi prints, have been
where goods have been sold, and a bill taken in payment payable at a
future day, but without any express contract for time for the payment of
the goods; and thereupon, the bill being dishonored, the drawer has been
sued immediately. But I should think even in those cases, if the jury
found that the agreement really was for time, that the same objection
might be made to the action as in this case. In general however the goods
are considered as sold for a ready-money price, only the seller takes a bill
as ready-money payment. In this view of the case I think the present
action is not maintainable; and that the plaintiff should have been non-
suited. And in all cases, without express authority to the contrary, it is
better to keep the forms of action as distinct as possible, instead of running
one into another. Bule absolute.^
1 Dutton V. Solomonson, 3 B. & P. 582, accord.
After the expiration of the period of credit, the plaintiff could liave brought an
action for goods sold and delivered. Brooke v. White, 1 N. R. 330 ; Helps v. Winterbot-
tom, 2 B. & Ad. 431. — Ed.
72 HUNT V. SILK. [chap. II.
HUNT V. SILK.
In the King's Bench, November 9, 1804.
[Reported in 5 East, 449.]
In assumpsit for money had and received, the facts appeared at the trial
before Lord Ellenborough, C. J., at the last sittings at Westminster, to be
these. On the 31st of August, 1802, an agreement of that date was made
between the parties, whereby the defendant, in consideration of lOl. to be
paid at the time of executing the lease after mentioned, and for other con-
siderations therein stated, agreed that within ten days from the date
thereof he would grant to the plaintiff a lease of a certain dwelling-house
for nineteen years (determinable by the plaintiflF in five, ten, or fifteen
years) from the 29th of September then next (but possession to be imme-
diately given to the plaintitT), at the yearly rent of G3^. And the defend-
ant also agreed at his own expense to make certain alterations in the
premises, autl that the premises, fixtures, and things should at the time of
executing the lease be put in complete repair. And the plaintiff, in con-
sideration of the aforesaid, agreed to accept the lease at the rent and in
manner aforesaid, and to execute a counterpart, and pay the rent. The
plaintiff took immediate possession of the premises under the agi-eement,
and paid the 10^. at the same time, in confidence that the alterations and
repairs stipulated for would be done within the ten days ; but that period
and somo days after having elapsed, and nothing being done, notwithstand-
ing several applications to the defendant to perform the work, the plaintiff
quitted the house, giving the defendant notice of his having rescinded the
agreement in consequence of the defendant's default, and brought this
action to recover back the money he had paid. Lord Ellenborough, how-
ever, thought that the plaintiff was too late to rescind the contract, and
that his only remedy was on the special agreement, and therefore directed
a nonsuit. Which
Header now moved to set aside, and to have a new trial, on the authority
of Giles V. Edwards.^
Lord Ellen noRouGn, C. J. Without questioning the authority of the
ca«c cited, which I admit to have been properly decided, there is this
difTerenco between that and the present ; that there by the terms of the
agreement the money was to be paid antecedent to the cording and delivery
of the wood, and here it was not to be paid till the repairs were done and
the lea«o executed. The plaintiff there had no opportunity by the terms
of the contract of making his stand, to see whether the agreement were
Itcrfi.njiL'tl by the other party before he paid his money, which the plaintiff
1 7 T. K. 181.
SECT. II.] ATTY V. rAItlSII. 73
in this case had ; but instead of making his stand, as ho might have done,
on the defendant's non-performance of what ho had undertaken to do, lie
waived his right, and vohuitarily paid the money; giving the defendant
credit for his future performance of the contract, and afterwards continued
in possession notwithstanding the defendant's default. Now where a con-
tract is to be rescinded at all, it must be rescinded in toto, and the parties
put in statu quo. But here was an intermediate occupation, a part execu-
tion of the agreement, which was incapable of being rescinded. If the
plaintiff might occupy the premises two days beyond the time when the
repairs were to have been done and the lease executed, and yet rescind
the contract, why might he not rescind it after a twelvemonth on the same
account] This objection cannot be gotten rid of; the parties cannot be
put in statu quo.
Grose, J., of the same opinion.
Lawrence, J. In the case referred to, where the contract was rescinded,
both parties were put in the same situation they were in before. For the
defendant must at any rate have corded his wood before it was sold. But
that cannot be done here where the plaintiff has had an intermediate occu-
pation of the premises under the agreement. If indeed the 10/. had been
paid specifically for the repairs, and they had not been done within the
time specified, on which the plaintiff had thrown up the premises, there
might have been some ground for the plaintiff's argument that the con-
sideration had wholly failed ; but the money was paid generally on the
agreement, and the plaintiff continued in possession after the ten days,
which can only be referred to the agreement.
Le Blanc, J. The plaintiff voluntarily consented to go on upon the
contract after the defendant had made the default of which he now wishes
to avail himself in destruction of the contract. But the parties cannot be
put in the sa,me situation they were in, because the plaintiff has had an
occupation of the premises under the agreement. Rule refused.
ATTY AND Another v. PARISH and Another, Executors op
R. CHARNOCK.
In the Common Pleas, November 21, 1804.
{Reported in 1 Bosanqud & Puller, New Reports, 104.]
This was an action of debt for the carriage of divers goods, wares, and
merchandises, carried and conveyed in divers ships and vessels from and to
divers places, and for the use and hire of divers other ships and vessels from
and to divers places, and for demurrage before that time due and of right
payable by the defendant's testator for his detention of divers other ships
74 ATTY r. PARISH. [CHAP. II.
and vessels employed by him. There were other counts in debt fur money
had and received, money paid, and on an account stated. The defendants
pleaded nil Jtbent.
At the trial of this cause before Sir James Mansfield, C. J., at the
Guildhall sittings after last Trinity term, the plaintiffs, after proving
the carriage of tiie goods of the defendant's testator and the detention of
the plaintifl's ship, gave in evidence a charter-party entered into between
themselves and the defendant's testator, to ascertain the amount agreed
upon for freight and demurrage. Upon this it was objected that tlie
plaintiffs must be nonsuited, not having declared upon the charter-party.
His Lordship permitted a verdict to be given for the plaintifis with liberty
to the defendants to move that a nonsuit should be entered.
Accordingly, a rule nhi for that purpose having been obtained,
Shej.htrd and Bayley, Scrjts., now showed cause. The plaintiffs were
well warranted in tlicir mode of declaring, and the evidence offered in
support of the declaration was properly received. Wherever the statement
of a contract between parties appears upon the face of a declaration to be
such that the plaintiffs might equally recovei', whether the contract be by
deed or not, though the contract in point of fact be by deed, it is not
necessary for the plaintiff to declare upon the deed. If, indeed, the con-
tract be such that unless it be entered into by deed the plaintiff cannot
recover, then he must declare upon the deed. If, in an action for goods
sold and delivered, or for wages, it should appear that the price of the
goods or the quantum of the wages was settled by deed, it would be no
ground of nonsuit that the plaintiff had not declared upon the deed ; for
the debt would arise upon the meritorious consideration of the delivery of
the goods, or the labor performed, and not upon the deed ; since the deed
itself, though it might be material to establish the quantum of price,
would be immaterial to the ground of action. Thus, in debt for rent, the
declaration alleges the debt as arising from the occupation of the premises,
and the indenture of demise is mere matter of evidence. Kemp v.
Goodall ; ^ Warren v. Consett.^ If the deed be only inducement to the
action, it need not be shown to the court. ^ In Hardres, 3.32, it is said in
argument that where an action of debt is grounded upon a matter in pais
only, as upon prescription ; or upon a deed that is not requisite to maintain
tlie action, as for rent reserved upon a lease by deed, nil debet is a good plea.
'I'he reason why in debt for rent it is not necessary to declare upon the
deed is, that tlie di-lit does not arise from tlie deed, but from the occupa-
tion. So here the debt arises from the use and occupation of the ships,
not from tlie charter-party. The only difference between tlie two cases is,
that one respects land, and the other a personal chattel. It is true that in
the case of a bond the declaration must state the bond ; the reason of
wliich is, that there is no foundation for the obligation except the solemnity
> 1 .Snik. 277. 2 8 m,„i 107. 3 Com. Di;;. tit. Pleader, 0. 15.
SECT. II.] ATTY V. rARISII. 75
of the instrument entered into between the parties ; and it matters not,
provided the bond be proved, whether any consideration for the deed
appear. Then in truth the existence of the bond is the gist of the action.
In considering this case, some attention must be paid to the distinction
between actions of assumpsit and actions of debt. In the former, an
agreement must be declared upon, because no impHed promise can be
raised wliere an express promise has been reduced into writing by the
parties ; but in an action of debt no promise is necessary to support the
action, inasmuch as the action is founded upon that obligation which
arises by law out of the circumstances of the case. The issue on this
record is, whether the plaintiff's testator was indebted or not. Now,
suppose a special verdict, in which the jury were to find that the defend-
ant was indebted, but that he wfis indebted by deed, and the plaintiff had
not declared upon a deed, would he not be entitled to recover? [Chambre,
J. The declaration here imports nothing more than a parol agreement ;
and the issue is, whether the defendant be indebted modo et forviaJ\
Best, Serjt., contra. The plain rule has always been, that where a deed
is the foundation of the action, that deed must be stated upon the record,
in order that the court may judge of its contents and ascertain whether
its provisions be legal or illegal. The true question in this case is not
whether the defendant be indebted to the plaintiff, but whether he be
indebted in the manner in which the plaintiff alleges. If there be any
contract between these parties, it is a contract by deed ; and wherever
there is any such express contract, the plaintiff is precluded from setting
up any other contract. In Thursbey & Hall v. Plant ^ it is said that a
lessor cannot maintain debt for rent against the original lessee after
assignment, but only covenant ; which shows that the action of debt for
rent is not founded upon the contract. "When an action is founded on a
deed, the deed must be shown to the court.^ Now, the action in this case
is founded on a charter-party, and in such actions it has hitherto been the
universal practice to declare upon the charter-party. The case of debt for
rent is an excepted case.
The court took time to consider the matter until the next day, when
their opinion was delivered by
Sir James Mansfield, C. J. In this action of debt the plaintiffs have
declared that the defendant was indel)ted to them in a certain sum of
money, without specifying any particular time at which it was to be paid,
for the carriage of divers goods conveyed in divers ships from and to divers
places, for the use and hire of divers other ships from and to divers
l)laces, and for the demurrage of divei'S other ships employed by the
defendant's testator. This declaration, therefore, is as general in its form
as can possibly be conceived ; nor are any of the peculiar circumstances
even hinted at. The declaration would lead us to suppose that the
J 1 Sid. 401. 2 Com. Dig. tit. Pleader, 0. 3.
76 ATTY V. PARISH. [CHAP. II.
defendant's testator had entered into a contract respecting the subjects on
which he is now charged, in the most general way in which such contracts
can be entered into (though with respect to demurrage, I take it to be
perfectly clear that there is no particular custom of trade which fixes
the rate of payment, but that it is always regulated by express stipula-
tion) ; and that the money having become due, the amount was to be
ascertained by the law. To support this declaration at the trial, a con-
tract of charter-party under seal was produced ; which contract was ex-
tremely long, and very particular in the provisions which it contained.
The defendant's testator appears to have endeavored to secure himself by
very special covenants fjom any misconduct on the part of the master, and
to have stipulated that no freight should be paid for the outward voyage,
hut that when the ship should have performed her homeward voyage, and
all the covenants contained in that charter-party, that then she should
have earned her freight. These covenants therefore amount in fact to
conditions precedent. The charter-party contains other covenants for the
payment of such demurrage as is therein mentioned, and freight for and
upon every ton of goods that should be brought into the port of London,
to be paid in the manner set forth in the charter-pai'ty, and not otherwise.
The covenants, therefore, in this charter-party are as special as can be
imagined. Such, then, being the agreement between the parties, what is
the foundation of the contract upon which the present action is brought 1
Unquestionably, the deed of charter-party is that which comprehends
everything by which the defendant's testator was bound. Are we, then, to
say that all the precedents in pleading are now for the fii'st time to be
overturned, and the defendant to be deprived of the advantage of having
a profert made of that deed which is the foundation of the action in which
he is sued 1 Having stated the declaration and the deed, I do not know
in what miinner I can more strongly argue against the form of the decla-
ration. If it be admitted, as it must be, that wherever the action is
founded on a deed, the deed must be declared upon, I would ask, is
not the action in this case founded on the charter-party ? A course of
ar<.'unient has been adopted which either I do not understand or do not
feel the aj)]jlication of. It has been said that where a party may re-
cover in an action, whether such action be founded on a deed or not,
the party may recover witliout declaring on the deed, though the con-
tract be reduced into a deed; and in support of tliis, it has Ijcen contended
that if goods be sold or wages earned, and the price of the goods or the
unioiint of the wages be ascertained by deed, yet inasmuch as goods may
be Hold and wages earned without the intervention of a deed, the person
who sues for money due to him on account of such sale or earnings, may
recover without declaring on the deed. But no case has been cited to
maintain tliat argument ; and it seems to me absurd to contend that the
action is not founded on a deed because if there liad Ijocu no deed the
SECT. II.] COOKE V. MUNSTONE. 77
action laiglit have been well maintained without it. The only case
excepted from the general rule is that of debt for rent, in which the deed
need not be declared upon. That exception, however, seems to have
proceeded on the ground that by the demise an interest has passed in the
land. In the case cited from Hardres, though it is said that in debt for rent
reserved upon a lease by deed nii debet is a good plea, yet it is added that
in debt u[)un a grant of an annuity not issuing out of land, such a plea
would not be good; and the same distinction is made in Warren v.
Consett. Since, therefore, all the books speak of the case of debt for rent
as an exception, it is strong evidence to show that in all other cases a deed
must be declared upon. This action is founded upon a charter-party, —
a form of instrument upon which many actions are tried every year;
nevertheless the mode of declaring here adopted has never been heard of
in Westminster hall till now. I have perhaps said more than was neces-
sary upon so plain a case, and I have now only to add that we are all of
opinion that a nonsuit must be entered.
Fer Curiam, ^^^^ absolute.'^
COOKE V. MUNSTONE.
In the Common Pleas, July 3, 1805.
[Reported in 1 Bosanquct <& Puller, New Reports, 351.]
Assumpsit. The first count of the declaration was for not delivering
35 chaldrons of soil or breeze, according to a special contract between the
defendant and the plaintiff" ; to which the money counts were added.
At the trial before Sir James Mansfield, C. J., at the Guildhall sittings
in this term, it was proved that the defendant having agreed to supply the
plaintiff with 35 chaldrons of soil at seven shillings per chaldron, the
plaintiff" paid 21. 5s. as earnest; that the plaintiff" afterwards sent his
barge and demanded the soil, offering at the same time to pay the re-
mainder of the purchase-money as soon as the soil should be put on board,
but that the defendant refused to deliver it on account of a dispute with
the plaintiff" respecting the wharf from whence it should be loaded. It
appearing, however, that soil and breeze were very diff'crent things, it was
objected for the defendant that as the plaintiff" had declared upon a con-
tract for the delivery of soil or breeze, and had only proved a contract for
the delivery of soil, he must be nonsuited ; whereupon the plaintiff" in-
sisted that he was entitled to a verdict for 21. 5s. on the count for money
had and received. His Lordship thought that as the plaintiff" had pro-
ceeded upon a contract which never appeared to have been rescinded by
1 Midilleditch v. Ellis, 2 Ex. 623, accord. Conf. Tilsou v. Warwick Gas Light Co.,
4 B. & C. 962. — Ed.
7S COOKE V. MUNSTONE. [CHAP, II.
any act or agreement between the parties, but only broken by a refusal of
one party to°perform it, he was not at liberty to recover the deposit upon
the count for money had and received, and accordingly nonsuited the
plaintiff, but gave him liberty to move that the nonsuit should be set
aside, and a verdict entered for him, if the court should be of opinion that
he was entitled to it.
Accordingly, a rule iim for that purpose having been obtained,
Best, Serjt., showed cause.
Shepherd, Serjt., contra. Cur. adv. vult.
On this day the opinion of the court was pronounced by
Sir James Mansfield, C. J. This was an action for the non-delivery of
soil or breeze according to a contract entered into between the parties, and
for which money had been paid by way of earnest. There was also a count
fur money had and received. The framers of the special count in the
dt'claration unfortunately supposed soil and breeze to be the same thing ;
but the fact proving otherwise, the plaintiff failed in establishing that count.
He then wanted to go into evidence on the count for money had and
received, in order to recover back what had been paid by way of earnest.
The case appears to me unlike any of those cited. If the plaintiff were
allowed to go into the evidence for which he contends, the consequences
might be serious ; he seeks to recover, not upon the contract on which he
has declared, but upon a different contract, and upon a ground which the
defendant could not possibly be prepared to meet. In Giles v. Edwards
the plaintiff had no other demand against the defendant than that for the
10/. 10«. paid to him, — which constitutes the difference between that case
and the present. The case of Towers v. Ban-ett has no resemblance to the
present; the special contract there being at an end, the money paid in
respect of that contract was to be returned, and might therefore be
recovered under the general count. Indeed, the cases in which it has been
decided that a plaintiff may, if he fail on his special contract, resort to a
general indebilatus assumpsit, are unlike the present in this respect : that in
truth the special contract is put altogether out of the case as not being
properly complied with. But in this instance it would be very strange to
allow the plaintiff to recover on a general indebitatus assinnpsit, and still
leave him his right of recovery for non-performance of the special contract.
It is said, however, that he has a right to insist on the special contract and
on the general contract at the same time, recovering under the one his
damages for non performance, and under the other his money paid, but
the cases only warrant a permission to the plaintiff to resort to liis general
count when his special contract has failed altogether. I apprehend the
rule to be this : where a party declares on a special contract, seeking to
recover thereon, but fails in his right so to do altogether, he may recover
on a general count, if the case be such that, supposing there had been no
special contract, he might still have recovered for money paid or for work
SECT. II.] PAYNE V. WHALE. 79
and labor done. As iu the case of a plaintiff suing a defendant as having
built a house for him according to agreement ; there, if he fail to prove that
he has built it according to agreement, he may still recover for his work
and labor done. In BuUer's Nisi Prius ^ the rule is thus laid down : " If
a man declare upon a special agreement, and likewise upon a quantum
meruit, and at the trial prove a special agreement, but different from what
is laid, he cannot recover on either count, — not on the first, because of
the variance ; nor on the second, because there was a special agreement ;
but if he prove a special agreement, and the work done, but not pursuant
to such agreement, he shall recover upon the quantum meruit, for otherwise
he would not be able to recover at all." In Payne v. Bacomb^ I suppose there
was a special agreement by the defendant to pay a share of the expenses of
the suit in the Exchequer, but that agreement had not been strictly pur-
sued by him ; and consequently he recovered for the money actually laid
out by him to the defendant's use, on evidence of his connection with the
defendant in that suit, and the obligation of the latter to pay. That
case, therefore, proceeds on the ground that there was no special agree-
ment still subsisting and in force between the plaintiff and defendant, on
which the former was entitled to recover. In this case, if we were to
allow the plaintiff to go into the evidence which he offered, it would
amount to saying that thei-e was no evidence of a subsisting special
agreement ; when in truth there was such evidence.. The consequence of
such a rule would be to introduce the means of practising great surprise
upon defendants.
Per Curiam, Rule discharged.
PAYNE V. WHALE.
In the King's Bench, February 11, 1806.
[Reported in 7 East, 274.]
This was an action for money had and received, to recover back the price
of a horse which had been warranted sound by the defendant to the plain-
tiff. Shortly after the original bargain was made (of which there was no
proof except by the subsequent conversation), and the money paid, the
plaintiff" objected that the horse was a roarer and unsound, and tendered
back the horse, and demanded his money : the defendant admitted that he
had made the warranty, but denied the unsoundness, and refused to take
back the horse or return the money ; but told the plaintiff that if the horse
were unsound, he would take it again and return the money. At the trial
after last Trinity term at Guildhall these f^icts were proved, and that the
horse was a roarer and unsound. But it was objected on the part of the
defendant, that the action was misconceived ; for that the question to be
I Ed. 2, p. 139, — Weaver v. Burrows. 2 2 Dougl. 651.
80 PAYNE V. WHALE. [CHAP. II.
tried wiis the uusouudncss, which was the suhject of the warniuty, and
could not be tried in this actiou, the contract not being rescinded, but only
iu a special actiou on the case founded on the warranty. Lord Ellen-
UOKOUGII, C. J., however, then thought that the special promise to rescind
the contnict and return the money, if the borse were unsound, took this
out of the general rule ; and he therefore suffered the plaintiff to recover a
verdict for the amount of the price paid. And in ]\Iichaclmas term last, a
rule ntsi was obtained for setting it aside and having a new trial, upon the
authority of Power v. Wells ^ and Weston v. Downes,^ which established
the principle, that where the contract of warranty is still open, assumpsit
for money had and received will not lie by the vendee to recover back the
price of the goods warranted ; though in the latter case there was a similar
promise to take back the horses warranted, if the plaintiff disapproved of
them and returned them within a month ; which was offered to be done
but refused. The case stood over till this term, when
Garroio and Marryat showed cause against the rule.
Erskiue and Lawes in support of the rule.
Lord Ellenborough, C. J., then said, that as the cases ran very near to
each other, and this would give the rule to many others, the court would
consider of the case before they gave their opinion ; as they wished to pro-
ceed upon some sound and clear principle which would not break iu upon
established cases which had become the habitual law of the land, such as
actions of this sort against stakeholders, or for returns of premium. That
if the question were upon the warrant}", there was no doubt that the action
was misconceived ; the only doubt was, whether the promise to take back
the horse if unsound and return the money, did not make a difference.
His Lordship now shortly delivered the opinion of the court. This was
a cause tried before me at Guildhall to recover back the price of a horse
sold as a sound horse, and which proved to be unsound. It was to be col-
lected from the evidence, that there had been a warranty of soundness at
the time of the original contract of sale ; but in a subsequent conversation,
when the plaintiff objected that the horse was unsound, the defendant said,
that if the horse were unsound he would take it again, and return the
moncv. And it was contended that the action for money had and received
would not lie, upon the authority of Power v. Wells and Weston v. Downcs,
because this was no other than a mode of trying the warranty, which could
only be by a special action on the case. It had occurred to me at the trial,
that tlie defendant, by means of his promise to return the money and take
back the horse if it were unsoiuid, liad placed himself in the situation of a
Ktukeholder, and tlicrefore that on proof that the horse was unsound he was
to be couKidercd as li(»l(ling the money for tlie use of the plaintiff. But
Jipon further consideration I am clearly satisfied that that promise did not
diKchargc the original warranty, and that the party complaining of the
' '• " •■ '•l'^. '•' KdU^'l. 23. See also Hull v. Iloiglitmau, 2 East, 145.
SECT. II.] BEED V. BLANDFORD. 81
breach of that warranty must still sue upon it. The second conversation
is not to be considered as an abandonment of the original warranty, the
performance of whicli the defendant still insisted upon ; but rather as a
declaration that if the warranty were shown to be broken, he would do
that which is usually done in such cases, — take back the horse and repay
the money. Then where any question on the warranty remains to be dis-
cussed, it ought to be so in a shape to give the other party notice of it,
namely, in an action upon the warranty.
Nonsuit to he entered.
BEED V. BLANDFORD.
In the Exchequer, May 9, 1828.
[Reported in 2 Younge and Jervis, 278.]
Assumpsit for money had and received, and the usual money counts.
Plea, the general issue. — At the trial, which took place before Mr. Justice
Park, at the Lent assizes, 1827, for Hampshire, it appeared in evidence,
that the plaintiff was the master and part owner of the vessel called the
Albion, of which the plaintiff and John Blandford, the brother of the
defendant, were in the year 1817 registered owners. In that year, John
Blandford's moiety was assigned, by indorsement on the registry, to Isaac
Blandford, the son of the defendant, who advanced the purchase-money ;
and in the year 1824, a bill of sale, purporting to be in consideration of
231/. but upon which no money passed at the time, of the moiety of Isaac
Blandford, was executed by him to his father, the defendant. In the year
1824, the plaintiff entered into a verbal agreement with the attorney of
the defendant for the purchase of his moiety, at the sum of 140/., which it
was stipulated should be paid on the day following the agreement, when
the bargain was to be completed. On the day on which the money was to
be paid, the defendant's attorney was from home, but left written instruc-
tions how the business was to be arranged between the parties, of which
the following is a copy : —
" Deliver to Beed the bill of sale from John Blandford to Isaac Bland-
ford, and the assignment from Isaac Blandford to Thomas Blandford, on
Beed's paying 120/., and giving a note of hand, on stamp, in these words."
Here followed the form of a promissory note to the defendant, at six
months, for 20/.
" Out of the 120/., give Thomas Blandford 30/., and pay the remaining
90/. into Grant's bank, to the credit of my account.
"Do not part with the deeds to any person until the 120/. be paid, and
the promissory note is given by Beed.
"If the man who lends Beed the money wants a security, he can hold
the deeds till I return home, or he can get a proper security prepared."
VOL. H. — 6
S2 BE ED V. BLANDFORD. [CHAP. II.
Pursuant to these instructions the plaintiff paid to an agent of the de-
fendant's attorney 110/., and gave a promissory note for the balance of 30/.,
when the papers wore delivered to him, and pledged by him as a security
fur the money. The note was subsequently paid. From this time the
plaintiff had the possession of the vessel, but having in vain applied to the
defendant and his attorney for a bill of sale of the moiety of the vessel
which he contracted to purchase, or for a return of the money, he brought
the present action, to recover from the defendant the sum of 120/. as
money paid. It was proved, by the defendant's witnesses, that, after the
contract, Isaac Blandford was joint owner of the vessel, until his death,
and that the defendant was his administrator. Upon which it was con-
tended by the counsel for the defendant, — first, that the money was ad-
vanced by the plaintiff on behalf of Isaac Blandford, and that the action
shoidd have been brought against the defendant, as his representative;
and secondly, that the action for money had and received could only lie
where the consideration had totally failed, and the parties could be rein-
stated in their former situation, which could not be in this case, where,
from the time of the contract, the defendant had had no participation in
the prohts of the vessel ; and that, at all events, the deeds delivered to the
plaintiff ought to have been tendered to the defendant before the action was
brought. The learned judge left the first question, as a question of fact,
to the jury; who found, that the money had been paid to the defendant
by the plaintiff on his own behalf. He overruled the second objection ;
and the jury having found a verdict for the plaintiff, the learned judge
gave the defendant leave to move to enter a nonsuit, if this court should
think his direction wrong.
In Easter term, 1827, Sclwyn obtained a rule to show cause why the ver-
dict should not be set aside, and a nonsuit entered. He urged, that this
action could only be sustained upon the contract being rescinded, which
it could not be unless it were rescinded in toto, and the parties restored to
their former situation; that, in this case, there had been an immediate
occupation, and a part execution of the agreement, which was incapable of
being rescinded; and he relied upon the case of Hunt v. Silk,* as an author-
ity for that doctrine.
Williams, C. F., and Manning showed cause.
iSelwifn and Cartet; contra, were stopped by the com-t.
Alk.xanukii, L. C. B. This was an action of assumpsit for money had
and received, brought by the plaintiff against the defendant, to recover the
money paid by the former to the latter, as the consideration for the pur-
cliase of the moiety of a vessel, upon the ground of that contract having
been rescinded. In order to sustain an action in this form, it is necessary
that the parties should, by the plaintiff's recovering the verdict, be placed
iu the Hiuiie situation in which they originally were before the contract was
1 5 East, 449.
SECT. II.] PLANCIIE V. COLBURN. 83
entered into. The plaiutitl' has by his intermediate occupation derived the
profits of tlie vessel ; if he has not lie might have done so ; and it is impos-
sible to say what the defendant might have made had he, during the time,
had any control over it. Under these circumstances, it cannot be said
that the situation of the parties has not been altered ; and that, by the
plaintiff's recovering in this action, their original position may be restored.
Besides this, the defendant's title deeds have been deposited by the plain-
tiff as a security for the money advanced to him. How could the defend-
ant, in this i-espect, be restored to his original situation by this action]
He is at the mercy of the plaintiff for his title deeds, and cannot recover
them by any process in this cause. I think the objection is unanswerable,
and that the rule for a nonsuit must be made absolute.
HuLLOCK, B. I am of the same opinion. This case cannot be distin-
guished from that of Hunt v. Silk, with which decision I am perfectly
satisfied.
Vauguan, B. Both the law and justice of this case are with the de-
fendant ; for it would be manifest injustice to permit the plaintiff to have
possession both of the ship and title deeds, and to recover the purchase-
money also. The decision in Hunt v. Silk lays down a very clear and just
rule in these cases : if the circumstances be such, that by rescinding the
contract the rights of neither party are injured, in that case, if one con-
tracting party will not fulfil his part of the engagement the other may
rescind the contract, and maintain his action for money had and received,
to recover back what he may have paid upon the faith of it. Giles v.
Edwards does not impeach this doctrine, for there the parties were restored
to their original situation ; for which reason that authority does not at all
apply to the present case. Rule absolute.
PLANCHE V. COLBURN.
In the Common Pleas, November 5, 1831.
[Reported in 8 Binr/Juan, 14.]
The defendants had commenced a periodical publication, under the
name of " The Juvenile Library," and had engaged the plaintiff to write
for it a volume upon Costume and Ancient Armor. The declaration stated,
that the defendant had engaged the plaintiff for 100/. to write this work for
publication in " The Juvenile Library ; " and alleged for breach, that though
the author wrote a part, and was ready and willing to complete and deliver
the whole for insertion in that publication, yet that the defendants would
not publish it there, and refused to pay the plaintiff the sum of 100/. which
they had previously agreed he should receive. There were then common
counts for work and labor.
84 PLANCUE V. COLBURN. [CIIAP. II.
At the tri:il lefure TiNDAL, C. J., Middlesex sittings after last term, it
appetu-eJ that the plaintiir, after entering into the engagement stated in the
declaration, commenced and completed a considerable portion of the work ;
performed a journey to inspect a collection of ancient armor, and made
drawings therefrom ; but never tendered or delivered his performance to
the defendants, they having finally abandoned the publication of " The
Juvenile Library," upon the ill success of tht? early numbers of the work.
Au attempt was made to show that the plaintiff had entered into a new
contract.
The Chief Justice left it to the jury to say, whether the work had been
abandoned by the defendants, and whether the plaintiff had entered into
anv new contract ; and a verdict having been found for him, with 50/.
damages,
Spaukie, Serjt., moved to set it aside.
TiXDAL, C. J. In this case a contract had been entered into for the pub-
lication of a work on Costume and Ancient Armor in " The Juvenile
Library." The considerations by which an author is generally actuated in
imdertakiug to write a work are pecuniary profit and literary reputation.
Now, it is clear that the latter may be sacrificed, if an author, who has en-
gaged to write a volume of a popular nature, to be published in a work
intended for a juvenile class of readers, shoidd be subject to have his writ-
ings published as a separate and distinct work, and therefore liable to
Vhj judged of by more severe rules than would be applied to a familiar
work intended merely for children. The fact was, that the defendants not
only suspended, but actually put an end to "The Juvenile Library ;" they
had broken their contract with the plaintiff; and an attempt was made,
but quite unsuccessfully, to show that the plaintiff had afterwards entered
into a new contract to allow them to publish his book as a separate work.
I agree that, when a special contract is in existence and open, the plain-
tifl" cannot sue on a quantum meruit : part of the question here, therefore,
was, whether the contract did exist or not. It distinctly appeared that the
work was finally abandoned ; and the jury found that no new contract had
been entered into. Under these circumstances the plaintiff ought not to
lose the fruit of his labor ; and there is no ground for the application which
has been made.
Gaselee, J., concurred.
lioSAXQUET, J. The plaintiff is entitled to retain his verdict. The jury
have found that the contract was abandoned ; but it is said that the plain-
tiff ought to have tendered or delivered the work. It was part of the con-
tnict, however, that the work should lie j)ublished in a particular shape ;
and if it had been delivered after the aliandonnieut of the original design,
it mi;rht have been published in a way not consistent with the plaintiff's
reputation, or not at all.
Aldekso.v, J., concurred, and the learned Serjeant Took nothing.
SECT. II.] HARRISON V. LUKE. 85
HARRISON V. LUKE.
In the Exchequer, May 7, 1845.
[Reported in 14 Meeson ^ Wehhij, 139.]
Debt for goods sold and delivered, and on an account stated. Plea,
imnquam indebitatus. Tliis was a case tried before tlie Recorder of Hull
under a writ of trial. The plaintiff was an oil and colormau residing at
Hull, and the defendant a shipowner at Charlestown, in Cornwall; and it
appeared that on the 27th of July, 1839, the defendant wrote a letter to
the plaintiff, stating that he had a yellow ochre mine, and should the
plaintiff be a purchaser of ochre he would su[)ply him with any quantity,
and would take goods for it. To this letter the plaintiff returned the fol-
lowing answer : " I have no objection taking eight or ten tons of ochre,
and you take paint, or any other article, in exchange. Should you feel
inclined to barter, please let me know as early as possible." The parties
accordingly supplied each other, and continued to deal on this footing for
some time, exchanging paint for ochre, until March, 1841, when the bal-
ance was in the plaintiff's favor ; and in a postscript to a letter, dated the
1st of March, 1841, from the plaintiff to the defendant, the plaintiff re-
quested defendant to send ochre " to balance our account." No more
ochre, after this time, was received by the plaintiff. The action was
brought in December, 1844. At the trial it was objected for the defend-
ant, that the plaintiff" ought to be nonsuited, as, the transaction being one
of barter, he was not entitled to recover the value of the goods in money.
Tlie learned Recorder directed a verdict for the plaintiff for the amount
proved, giving leave to the defendant to move to enter a nonsuit.
Bain having obtained a rule accordingly,
Archhold now showed cause.
Bain, contra, was stopped by the court.
Pollock, C. B. I am of opinion that this rule ought to be made abso-
lute. Where there is a contract of barter, and one of the parties omits to
send goods in return, it cannot be contended that the other may bring an
action for goods sold. No mere lapse of time will turn a contract of barter
into a contract for goods sold.
Parke, B. The plaintiff's remedy is by an action against the defendant
for not delivering the ochi-e pursuant to the contract between them. The
ground of Lord Ellenborough's decision in Ingram v. Shirley ^ w^as, that
the parties, by stating a balance of 25^. to be due, intended that amount
to be paid in money. But, if there be a contract of barter, you cannot
1 1 Stark. N. P. 185.
86 PAUL V. DOD. [chap. II.
change that into a contract to pay in money, unless the parties come to a
freslj a<rreement to that eflect. The defendant's not sending the ochre is a
breach of the uld agi-ecnieut only.
Alderson, B., and Rolfe, B., concurred.
Eule absolute.^
PAUL V. DOD.
Ix THE Common Pleas, April 16, 1846.
[Reported in 2 Common Bench Reports, 800.]
Dert for goods sold aud delivered, work and labor and materials, money
paid, and money found due upon an account stated.
The defendants severally pleaded, never indebted.
The cause was tried before Lord Den man, C. J., at the last assizes at
Kingston. The focts were as follows : The defendant Dod, in the early
part of the year 1845, applied to the plaintiff, an upholsterer, to complete
the decoration and furnishing of a house in his occupation, called Dagnells
Park, near Croydon. The plaintiff declined to do so without security ;
whereupon the defendant Holmes was offered and accepted as Dod's surety.
The estimated value of the goods to be supplied at first was between 80/.
and 100/., which it was agreed should be paid 30/. in cash, and the residue
by bills of 30/. each succeeding three months. Subsequently, however, the
order was, with the assent of Holmes, extended to 244/. By the direction
of Holmes, the goods were invoiced to Dod and himself jointly. The 30/.
were not paid, nor were any bills given. The last supply took place on
the 2d of April, 1845. The action was commenced on the 6th of Januar}',
184G.
On the part of the defendants, it was objected, first, that there was no
evidence of any joint contract by the two ; and, secondl}', that the action
was prematurely brought, inasmuch as the full period of credit agreed on
had not expired ; aud Lord Denman, yielding to the objections, nonsuited
the plaintiff, reserving to him leave to move to enter a verdict, if the court
should be of opinion that the goods were furnished and the work done on
the joint credit of the two defendants ; and for such sum as upon the evi-
dence they niiglit think tlic pl:iintiff entitled to; tlie court to be at liberty
to draw any inference of fact tiiat the jury might under the circumstances
have drawn.
Channell, Serjt., now moved accordingly.
Ti.NDAL, ('. .1. I think there ought to be no rule in this case. No part
' It was }u-ltl in SlieWon v. Cox, 3 B. & C. 420, that the count for goods sold and
clelivcn-d would lie to recover money due, that portion ol the contract which contem-
idatvd au exchange having been performed. — Ed.
SKCT. II.] FEWINGS V. TISDAL. 87
of the goods can be singled out for payment by cash. The contract was,
to pay for the entire goods, 30^. in cash, and the residue by instahnents of
30/. at each succeeding three months, to be secured by bills. The plaintiff
should have declared upon the special contract, under which the defend-
ants would have been clearly liable. He cannot, however, maintain an
action upon an implied contract, until the expiration of the period at which
the entire debt would have become due. The case of Nickson v. Jepson ^
does not apply. There, the extended credit of three months was subject
to a condition to be performed on the part of the defendant. Not having
performed that condition, his right to such extended credit never accrued.
CoLTMAN, J. The payment of the 30/. was not, as has been contended
by my brother Channell, a condition. The agreement was, simply, that
the defendant should pay 30/. in cash, and the rest of the debt by bills at
certain intervals. The action, therefore, was brought too soon.
Cresswell, J. I am of the same opinion. It is impossible to say that
any particular portion of these goods was sold for a money payment. I
agree with the view taken by my brother Coltman, that the credit was not
conditional upon the payment of the 30/. in cash. It was one entire con-
tract for a cash payment of 30/., with a certain credit for the residue.
Erle, J. I also am of opinion that this was one entire contract upon
one consideration, and one entire promise. The payment of the 30/. was
not a condition.
Rule refused.
FEWINGS V. TISDAL.
In the Exchequer, November 18, 1847,
[Reported in 1 Exchequer Reports, 295.]
Indebitatus assumpsit for work and labor as a hired servant, and on an
account stated.
Plea, non assumpsit.
At the trial, before the under-sheriff of Bristol, in August last, it ap-
peared that the planitiff had been in the defendant's service as cook, but
that from some suspicions which he entertained about her, he had dismissed
her without any previous warning, but that he had paid her her wages up
to the time of her dismissal. This action was brought to recover a month's
wages, commencing from the day of her discharge from the defendant's
service. The under-sheriff nonsuited the plaintiff, on the ground that the
declaration should have been special, and that the plaintiff could not
recover under the common count for work and labor.
Montague Smith having obtained a rule to set aside the nonsuit,
1 2 Stark. N. P. 227.
88
FEWINGS V. TISDAL. [CIIAP. II.
Greentcood showed cause.
M. Stnith, contra.
Pollock, C. B. I am of opinion that this rule should be discharged.
This was a special contract between the parties, and I think that the under-
sheriff ruled correctly that the present claim for a mouth's wages could not
be recovered on the common count for work and labor. The argument of
Mr. Smith, founded upon the case of Eardley v. Price, is, that this month's
wages should be considered as a compensation for bygone services. If that
ar>:umeut were held to be good, the result would be, that when parties
make a bargain, whatever the terms of it may be, the court would be at
liberty to substitute any other contract, provided the same conclusion
should be arrived at, and that this should be done for the purpose of ob-
taining what might appear to the court to be justice between the parties.
Such a rule wouhl be dangerous, and it is difficult to say where we should
stop. It amounts to this, that provided you can show that another set of
terms come to the same practical conclusion, the court is at liberty to sub-
stitute them for the real contract between the parties. In the present case,
the servant claims a month's wages for being turned away without a
month's warning. As f\xr as regards the amount of the mere claim, it is
the same as if the master were to pay her the additional sum for bygone
services for discharging her without a month's warning. But this is not,
I think, the contract. I regret that the party is unable to recover her
claim in this form of count ; it is not the proper form, but it should have
been a special one. The case of Archard v. Hornor governs the present ; it
has been recognized by all the courts, and has been acted upon in this
court, in the case of Broxham v. Wagstaffe.^
Parke, B. I agree with the opinion expressed by the Lord Chief Baron.
The good sense of the matter is to be found in Archard v. Hornor, which
was afterwards confirmed by the Court of Queen's Bench in the case of
Smith V. Hayward, and also by this court. It is not broken in upon by
the case of Smith v. Kingsford, which proceeded on a different ground.
The contract in the present case is, that the service is for the year, but the
master is at liberty to dismiss the servant by giving her a month's wages
or warning. It is a refinement to say that these wages are a compensation
for bygone services. Eardley v. Price broke in upon the rules of law, per-
haps in order to do what appeared to be justice in that particular case.
Archard v. Hornor, in my opinion, governs the present case.
Aldeiwon, B. I am of the same opinion. When we say that the ser-
vant is to have a montli's warning or a montli's wages, it is meant that the
payment to be iiiadu fur the dismissal without warning is to be by way of
compensation, and that the amount is to be equal to a month's wages.
HoLKK. B., concurred.
Eule discharged.
» 5 Jur. 845.
SECT. II.] EHRENSPEKGER V. ANDERSON. 89
EHRENSPERGER v. ANDERSON.
In the Exchequer, December 8, 1848.
[Reported in 3 Exchequer Reports, 148.]
Debt for money had and received, and for money due on an account
stated. Plea, nunquam indebitatus ; upon which issue was joined.
At the trial, before Lord Denman, C. J., at the Hertford spring assizes,
1848, it appeared that the plaintiff was a merchant carrying on business in
Loudon, and the defendant a partner in the firm of Alexander Anderson &
Co., merchants and commission agents at Bombay ; and the action was
brought to recover 68U., being the net proceeds of twenty cases of Swiss
cottons, sold by Alexander Anderson & Co., at Bombay, on the plaintiff's
account, in August, 1847. In the year 1844, Messrs. Cruikshank, Melville,
& Co., consigned to the house of Campbell, Dallas, & Co., merchants and
commission agents at Bombay, the above-mentioned cottons for sale, with
directions to hold them until a favorable opportunity for sale should occur;
and, after the sale, to hold the money until a favorable opportunity of
remittance, and then to remit the proceeds of the sale to London by bills
of exchange at six months' sight. In March, 1846, Cruikshank, Melville,
(fe Co. applied to the plaintiff for an advance upon the consignment of the
cottons; and the plaintiff" having made it, on the 25th March, 1846, Cruik-
shank, Melville, & Co. wrote to the plaintiff a letter, of which the following
is an exti-act : —
"In consideration of your having advanced us 845^. 12s. 6f/., upon twenty
cases plain red cottons, shipped to Bombay, ten cases per ' London,' and
ten cases per ' Hindostan,' both in October, 1844, and consigned to
Messrs. Campbell, Dallas, & Co., there, for sale, we hereby assign over to
you the said shipments, and undertake to pay over the proceeds to you as
soon as received by us. We inclose a few lines to Messrs. Campbell, Dal-
las, & Co., instructing them to make the remittance to you direct."
Campbell, Dallas, & Co. afterwards discontinued business, and were suc-
ceeded by the firm of Alexander Anderson & Co., in which the defendant
was a partner. On the 25th March, 1846, Messrs. Cruikshank, Melville,
& Co. wi'ote to the defendant's firm at Bombay, as follows: —
Dear Sirs, — Upon referring to Messi's. Campbell, Dallas, & Co.'s letter
of 1st December last, relative to the twenty cases plain red Swiss cottons,
per " London " and " Hindostan," we are in expectation of hearing, by an
early mail, that they have been sold, and of receiving the remittance ; but,
should the remittance not have been made at the time you receive this
90 EHRENSPERGER V. ANDERSON. [CHAP. II.
letter, we request you will make it direct in good bills to Messrs. C. Ehren-
sperger & Co., of this city, to whom these goods belong, and who will, if
requisite, give you their own instructions respecting them.
We remain, etc.,
Cruikshank, Melville, & Co.
On the 4th April, 1840, the plaintiff wrote to the defendant's firm at
Bombay a letter, of which the following is au extract : —
"By the inclosed letter of Messrs. Cruikshank, Melville, & Co., you will
perceive, that henceforth you ai*e to consider us the owners of twenty cases
plain red cottons, per ' London ' and ' Hindostan.' We request you will
favor us, by returu of mail, with your confirmation that such transfer is
made, and that you will account for the same to ourselves. If, however,
in the mean time, the goods have been sold, be kind enough to favor us
with particulars, and how remitted; for if such has not taken place, we re-
quest that you will proceed with the sale, either partially or wholly, as best
to our interests, remitting proceeds as sales may be effected ; at all events,
we trust within six months to be favored with the returns in good bills ou
Londun."
On the 1st October, 1846, the defendant's firm wrote to the plaintiff in
reply, a letter containing the following passages : —
" We are in receipt of your much esteemed and valued favor, under date
4th April, which came to hand on the 28th May last, informing us to con-
sider you the owners of twenty cases of plain red cottons, and to effect
sales of them at an early date. In reply we beg to state that we forwarded
a copy of your letter to our Mr. Anderson a long time ago, who, we trust,
might have spoken to you on this head."
The firm of Cruikshank, Melville, & Co. was succeeded by Melville & Co. ;
and, in August, 1847, Messrs. Anderson & Co., at Bombay, sold the cottons,
and acquainted Melville & Co. with the fact, by letter dated 30th August,
1847, of which the following is an extract : —
" We beg to advise a sale of twenty cases of Turkey red plain cloth at 8
rupees and 3| anas per piece, belonging to Messrs. C. Ehrensperger & Co.,
and regret to-say^ that the buyer has not yet taken delivery of the same.
This has prevented us from sending you an account of the sales and re-
mittance to cover the proceeds, which shall be sent forward by the ensuing
mail of the 15th proximo."
A copy of the above extract was sent by ^Messrs. Melville & Co. to the
jihiintiff, by letter dated the 5th Octo])er, 1847. On the 11th September,
1K47, Anderson k Co. wrote to Melville i^- Co. a letter, of wliich the follow-
in;,' is an extract : —
" Tiic rate of exchange here has given a decline to !.«. 11(/. for first-rate
bills. We therefore hold Messrs. C. Ehrensperger & Co.'s sales of twenty
SECT. II.] EIIRENSPERGER V. ANDERSON. 91
cases Turkey red plain cloth until due dates, as it will leave a great deal
loss in present state of exchange ; but if we see an improvement before
that, we shall lose no time to remit the proceeds."
On the 1st November, 1847, Anderson & Co. wrote to Melville & Co. a
letter, of which the following is an extract : —
" For the gradual rise in exchange you will hear from our Mr. Anderson,
to whom we write at length by this mail. Annexed you have a memo-
randum of account of Mr. Ehrensperger's sale of Turkey red cloth ; and,
upon reference to it, you will observe that we have allowed you interest at
the rate of 9^, per cent from the date of the closing of the sales, and from
the surplus amount the remitting 11. per cent commission has been de-
ducted, deferring to the register of our remittances, we now beg to hand
you drafts as under."
The letter set out several drafts, amongst which were two on J. Bag-
shaw, amounting to 700^. "to cover C. Ehrensperger, 681/." It then
stated : " The above drafts are forwarded to our Mr. Anderson at home,
who will hand them over to you on application." Melville & Co. having
communicated to Ehrensperger & Co. the above extract as to the remit-
tances, the latter applied to Mr. Anderson for the drafts, and a correspond-
ence took place between Ehrensperger & Co., Melville & Co., and Mr.
Anderson, the latter of whom, by letter, dated the 30th December, 1847,
wrote to Ehrensperger & Co. as follows : —
"The drafts on Bagshaw, referred to in the letter from Bombay, were
inclosed to me with several other drafts, and accompanied by a detailed
list of payments to which they were to be appropriated, but all consisting
of drafts by Alexander Anderson & Co. upon Melville & Co., and no men-
tion whatever is made of your claim in my letters. These remittances
have accordingly been applied as advised ; but I have every reason to sup-
pose that the proceeds due to you by Melville & Co. will be remitted by
my firm to them, upon receipt in Bombay of the last mail from hence, in
which I advised them of the mistake made in advising these bills to Mel-
ville & Co. for your account."
Ehrensperger &, Co., not being able to obtain the drafts or the proceeds
of the cottons, brought the present action on the 8th January, 1848.
On the part of the defendant it was objected, that the present action
could not be maintained, as the proceeds of the sale were to be remitted
by bills ; and that the plaintiff ought to have declared specially for the
breach of contract ; and further, that no action for money had and re-
ceived would lie, as the proceeds of the sale were not received in money,
but in rupees. A notice to produce the letter of the 25th March, 1846,
was served, on the 3rd February, 1848, on the defendant in London, the
firm having no place of business there. The plaintiff tendered a copy or
92 EIIEE\SPEEGER V. ANDERSON. [CIIAP. II.
that letter as secondary evidence, which was objected to by the defendant's
connsel, but received by the learned judge, who reserved leave for the
plaintiff to move to enter a nonsuit on the above points. The defendant
attempted to prove that there had been a re-transfer of the consignment to
Melville k Co., in consideration of an advance by them to the plaintiff of
600/, ; but a letter produced for that purpose was inadmissible for want of
a stamp; and a verdict having been found for the plaintiff for G8H.,
Channell, Serjt., in Easter term last obtained a rule nisi to enter a non-
suit, pursuant to leave reserved : against which
Shee, Serjt., and Bramwell showed cause.
Ckannell, Serjt., and Peacock, in support of the rule.
C^lr. adv. wit.
Parke, B., now said — This case was argued a short time ago, at the
sittings in term. It was an action brought by the plaintiff against the de-
fendant, Mr. Anderson, for money had and received; and the question
was, whether, under the circumstances, an action for money had and re-
ceived would lie. The action was commenced in January, 1848 ; and it
appeared upon the trial, that the house of Cruikshank, Melville, & Co. had
consigned to the house of Campbell, Dallas, & Co., at Bombay, a quantity
of cottons for sale ; and it would appear upon the evidence, that the di-
rections were to hold the cotton until a favorable opportunity occurred,
and, after the cottons were converted into money, to hold the money until
a favorable opportunity occurred for a remittance; and finally, to remit
the proceeds of the sale to London, in bills of exchange, — whether at six
months or not, is immaterial to the present question. Campbell, Dallas, &
Co. discontinued business, and were succeeded by the firm of Anderson &
Co. ; and Mr. Anderson, one of the firm, came over to England, and was
then sued, as I said, in the month of January, 1848, for money had and
received for the proceeds of this cotton. It appeared, that, after the con-
sigiunent of the cottons had taken place, Cruikshank, Melville, & Co., who
were desirous of having an advance of 800/. and upwards, upon the con-
signment of the cottons, applied to Mr. Ehrensperger, who made that ad-
vance, and then there was an agreement that the consignment of the cottons
should be transferred to Mr. Ehrensperger, and that Campbell, Dallas, &,
Co., who were now represented by the defendant, should be responsible to
Ehrensperger & Co. for the disposition of the goods and the remittance of
the proceeds ; and the house of the defendant, it is argued, stands in prc-
cisoly the same situation as Campbell, Dallas, & Co., and tlie single de-
fendant Htands in the same situation as his firm. Then it appears, that,
afterwards, a communication took place between ^lelville &, Co., who bad
Hucceeded Cruikshank, Melville, & Co., and Mr. Ehrensperger, in which Mr.
Ehrensperger required an advance from tliem of 600/. ; and one of the
points which were made at the trial, and afterwards upon the motion for a
nt;w trial, was, that there had been, with the consent of all parties, a sub-
SECT. II.] EHEENSPERGER V. ANDERSON. 93
se([ueiit rc-tniusfcr of the consignment in the hands of the defendant to
Melville & Co. from Mr. Ehrensperger. There was certainly some evidence
of such transfer, possibly incomplete in any view of the case ; but that evi-
dence failed, in consequence of a letter which was to prove this transfer
and which required a stamp, not being stamped. 'J'herefore, we may throw
out of the case entirely any agreement arising out of the alleged subse-
(jucut re-transfer of this consignment and its proceeds from Mr. Ehren-
sperger to Melville & Co. Then it further appears, that the defendant's
house afterwards, in the month of August, disposed of these cottons, and
received the proceeds; and the question is, whether they are responsible to
the plaintiff for these proceeds in an action for money had and received.
Now, several objections wer-e taken to the plaintiff's right to recover.
One, which was incidentally mentioned, was, that no action for money had
and received would lie, because the proceeds of this sale were not received
in money, but were received in rupees.-^ Upon that objection, certainly,
we consider that the plaintiff is not prevented from recovering. There are
two authorities on the subject : one of these is a case of Harington v. Mac-
morris,^ in which an objection having been made, that the money received
was foreign money. Lord Chief Justice Gibbs, then Mr. Justice Gibbs,
treated that objection as having been exploded for thirty years. The real
meaning of such a count is, that the defendant is indebted for money of
such a value or amount in English money. However, the objection appears
to have been listened to, perhaps more than it ought to have been, in a
subsequent case of M'Lachlan v. Evans ; ^ but the Court of Exchequer held
that an action for money had and received for English money would not lie,
unless there had been a reasonable time, after the receipt of the foreign
money, to convert it into English. Possibly that case cannot be received
as being very satisfactory ; at all events, we do not decide this case against
the plaintiff on this ground.
It then appears that the defendant's house at Bombay disposed of these
cottons in the month of August in 1847, and they then write to Messrs.
Melville & Co., wlio must now be considered as their agents and correspond-
ents, because there is no sufficient evidence of the transfer of the right to
Melville & Co. — they write to Melville & Co., and tell them that two of
tlie bills which they remit, amounting to 700^., are sent to Mr. Anderson
for the purpose of paying the amount of 600^. and upwards to Messrs.
Ehreusperger ; and, at the same time, they wrote another letter to Mr.
Anderson, in which they made no mention of the plaintiff's claim. Then a
correspondence takes place between Messrs. Ehrensperger, Melville & Co.,
and Mr. Anderson, which results in the plaintiff not obtaining any satis-
faction for the proceeds of this consignment. The question is, whether,
^ As to what will support the allegation of money received in the count for money
had and received, see Leake, Digest of Law of Contracts, 117. — Ed.
2 1 Marsh, 33; 5 Taunt. 228. 3 1 Y. & J. 380.
94 EHRENSPERGER V. ANDERSON. [CHAP. II.
uuder these circumstances, an action for money had and received will liel
I have before said, that the objection that it was foreign money ought
not in our judgment to prevail ; at all events, we shall not decide the
case upon that ; — then, the only way in which the plaintiff can recover in
an action for money had and received is, upon the ground that this is money
in the hands of the defendant, and originally placed there for the purpose
of purchasing bills, in order to make a remittance, and that that money
luis become money had and received, by the countermand not to apply it
any longer to that purpose ; or, secondly, that the plaintiff is in a condition
to say that the contract has been rescinded on the part of the defendant,
and that he is entitled to recover from the defendant the money which was
placed in his hands for the purpose of purchasing bills for a remittance.
With respect to the countermand, there is no evidence of it. The question
therefore resolves itself into this, — whether we can come to a conclusion
upon this evidence, that tlie plaintiff is in a situation to say to the defend-
ant, " You have got money which you received from me, and you have re-
scinded the contract, and I am therefore entitled to rescind it on my part."
In order to constitute a title to recover for money had and received, the
contract on the one side must not only not be performed or neglected to be
performed, but there must have been something equivalent to saying, " I
rescind this contract," — a total refusal to perform it, or something equiva-
lent to that, which would enable the plaintiff on his side to say, " If you
rescind the contract on your part, I will rescind it on mine." That princi-
ple is laid down and very well enforced in a variety of cases which were
cited, and which will be found in Smith's Leading Cases, Vol. 2, in the
note to the case of Cutter v. Powell. The same doctrine has been acted
upon, originally, I believe, in the case of Giles v. Edwards,^ and afterwards
in the case of Cooke v. Munstone,^ though with a different result. I take
it to be clear, that, in order to entitle a person who has put money into the
hands of another, to recover it back upon the ground that he has a right
to treat the contract as rescinded, it must be made out clearly that the
other party has rescinded the contract upon his part ; otherwise the meas-
ure of damages is different. If a man puts money into the hands of an-
other to purchase goods, and he neglects to do so, the proper measure of
damages is the value of the goods, not the value of the money originally
])ut into the defendant's hands, which value of the goods may be a great
deal less than the value of the monc}' which has been put into his hands
for the purpose of purchasing the goods ; and it can only be where the de-
fendant, who has received the money, has altogether refused to perform
the contract on his part, — not merely delayed, but altogether refused, —
so us to entitle the plaintiff to be in the same situation as if he had al-
together rescinded the contract, that the plaintiff can have any right to re-
scind the contract, and bring an action for money had and received. Now,
> 7 T. K. 181. 2 1 X. R. 351.
SECT. II.] WRIGHT V. COLLS. 95
ou looking at the evidence in this case, it is clear that neither Mr. Ander-
son nor his partners at Bombay, for whom he is responsible, ever totally
rescinded the contract. There is no evidence that they ever misapplied
the money ; for, though they may not have applied the precise identical
proceeds of the goods which were received in the purchase of other bills,
but applied them to their own use, the employment in this case is not of
that strict nature, that the precise money which was received for the goods
is to be expended in the purchase of bills, but the agent discharges his obli-
gation if he employs an equivalent sum of money of his own. All that the
evidence proves is, that, after the goods were sold in the month of August,
the defendant and his partners did not perform their duty in applying the
proceeds to the purchase of bills and remitting them to the plaintiff. It
does not appear to us that this is at all an equivalent to an absolute re-
scission of the contract ; and therefore, though they might be liable in a
special action of assumpsit, in consideration that they had the plaintiff's
consignment and his commission, in order to dispose, for his use, of the pro-
ceeds to be invested, and that they had neglected to do so, — though that
action might have been maintained under the circumstances of this case, we
are all of opinion that an action for money had and received will not lie.
Therefore the result will be, that the rule for entering a nonsuit must be
made absolute. Bule absolute.
WRIGHT V. COLLS.
In the Common Pleas, June 25, 1849.
[Reported in 8 Common Bench Reports, 150.]
This was an action of assumpsit. The first count of the declaration
stated, that, before the 29th of September, 1844, to wit, on the 26th of
July, 1844, by a certain agreement in writing then made between the
defendant of the one part, and the plaintiff of the other part, — after
reciting that the defendant did, on a certain day then past, to wit, on the
2.5th of July then instant, as he was advised and believed, legally and
effectually put an end to a certain lease granted by one James Esdaile to
one Samuel Hammond the younger, and bearing date the 18th of July,
1839, of a certain farm called Hunt's Farm, by entry thereon under the
power to him for that purpose contained in the said lease, by reason of the
bankruptcy of the said Samuel Hammond the younger ; and after further
reciting that he, the defendant, had agreed to grant a lease of the said farm
to the plaintiff, for twenty-one years from the 29th of September, 1844, at
the same rents, and under the same terms as the same farm was then lately
held by the said Samuel Hammond the younger, save and except of such
part thereof as consisted of a certain cottage and premises in the said lease
96 WRIGHT V. COLLS. [chap, il
mentioned to be in the occupation of one Edward Ilook, upon the fullowing
terms and conditions : It was mutually agreed by and between the plain-
tiff and the defendant, that the defendant should grant, and the plaintiff
should accept, a lease of all the said farm and land (except the cottage and
premises in the said lease stated to be in the occupation of the said Edward
Hook, and also except the timber, game, fish, and wild-fowl, and liberties,
as in the said lease to the said Samuel Hammond the younger are excepted),
at the yearly rent of 3161. Ss., clear of all deductions, excepting laud-tax,
and payable quarterly ; the said lease so agreed to be granted and accepted
as afuresaid, to commence on the said 29th of September, 1844, if the de-
fendant could then legally make and execute the same, or so soon after as
the defendant should be in a situation to grant the same : that it was there-
by further agreed by and between the plaintiff and the defendant, that the
said yearly rent should commence from the commencement of the term, or
on possession being given, which should first happen, and should be paid
quarterly ; that the plaintiff" should pay such further rents as were provided
for and reserved by the said lease to the said Samuel Hammond the younger;
and that the said lease so to be granted and accepted as aforesaid, should
contain the same or the like covenants, provisos, conditions, and agree-
ments as were contained in the said lease to the said Samuel Hammond the
younger, and such further covenants and agreements as were usual, accord-
ing to the custom of the country : that it was thereby further agreed by
and between the plaintiff and the defendant, that the plaintiff should pay
down to the defendant, on possession being delivered to him of the said
farm thereby agi'ced to be demised to him, except the said cottage as afore-
said, the sum of 500/. as a bonus or premium for the said lease so to be
granted and accepted as aforesaid, and also should pay all the costs, charges,
and expenses of the said agreement, and a counterpart thereof, and should
execute and deliver a counterpart of the said lease so to be granted and ac-
cepted as aforesaid, to the defendant, — the same agreement and lease and
counterparts to be prepared by the solicitor of the defendant : and that it
was further agreed by and between the plaintiff and the defendant that the
plaintiff should not require, call for, or see, or investigate the title of the
defendant : Mutual promises : Averment, that, after the making of the said
promise of the defendant, and before the said 29th of September, 1844, to
wit, on the Bth of August, 1844, possession of the said farm, etc. (except
the sj\id cottage as aforesaid), was delivered to the plaintiff under the said
agreement ; and that, on such possession being delivered to him as afore-
said, he the jjlaintiff, relying on the said promise of the defendant, paid to
the defendant, and the defendant then received of the plaintiff, a large sura
of money, to wit, the sum of 250/. in part payment and satisfaction of tho
said sum of 500/. so agreed to be paid by the plaintiff to the defendant as
a bonus or premium for the said lease as aforesaid ; and that, although he,
the plaintitr, had always from the time of the making of the said agreement,
SECT. II.] WRIGHT V. COLLS. 97
continually, been ready and willing to accept the said lease so agreed to bo
granted and accepted as aforesaid, and to execute and deliver a counterpart
thereof to the defendant, according to the terms of the said agreement ; and
although the said 29th of September, 1844, and a reasonable time for the
defendant to grant the said lease so agreed to be granted as aforesaid, had
elapsed before the commencement of the suit : and although the defendant,
on the said last-mentioned day, and from thence continually hitherto, was
in a situation to grant, and could legally make and execute, such lease as
last aforesaid, and during all the time aforesaid had notice of the said sev-
eral premises thereinbefore mentioned ; yet that the defendant, disregard-
ino- his said promise, did not nor would, on the said 29th of September, 1844,
or at any other time, though often requested so to do, grant to the plaintiff
the said lease so agreed to be granted and accepted as aforesaid, but had
wholly neglected and refused so to do ; and that thereby the plaintiff not
only had lost and been deprived of the benefits and advantages of the said
lease so agreed to be granted and accepted as aforesaid, and of divers large
gains and profits, to wit, to the amount of 500^., which would have accrued
to him from the granting of the same, but had also lost and been deprived
of the use of the said sum of money so paid by him to the defendant as
aforesaid, in part payment and satisfaction of the said sum of 500^. so
agreed to be paid as a bonus or premium for the said lease as aforesaid.
There was also a count for money had and received.
The defendant pleaded, — first, non assumpsit to both counts; secondly,
to the first count, that the plaintiff was not ready and willing to accept the
lease ; thirdly, to the first count, that the plaintiff had not paid or offered
to pay any part of the residue of the 500/. ; fourthly, to the first count,
that the plaintiff had not, until the bringing of the action, been in a situa-
tion to grant, and could not legally grant, the lease ; fifthly, to the first
count, that a reasonable time for granting the lease had not elapsed.
The cause was tried before Coleridge, J., at the Chelmsford spring
assizes, 1848. The facts that appeared in evidence were as follows: — On
the 18th of July, 1839, one James Esdaile granted to one Samuel Hammond
the younger, a farm at Upminster, in the county of Essex, for twenty-one
years : this lease contained a covenant on the part of Hammond not to as-
sign without consent in writing ; and a power of re-entry was reserved to
Esdaile in case of Hammond's bankruptcy or insolvency. After the grant
of this lease, Esdaile conveyed his interest in the farm to Colls. In 1844,
a fiat issued against Hammond, under which he was adjudged a bankrupt;
whereupon Colls re-entered, under the power reserved in the lease of the
18th of July, 1839, and, on the 26th of July, 1844, entered into an agree-
ment to grant a lease of the farm to Wright. The agreement was as
follows : —
"Agreement made the 26th of July, 1844, between Christmas William
Colls of the one part, and James Alfred Wright, of Brentwood, Essex,
VOL. II. — 7
98 WRIGHT V. COLLS. [CHAP. II.
gentleman, of the other part : Whereas the said C. W. Colls did, on the
25th of this instant Jnly, as he is advised and believes, legally and efFectu-
ally put an end to the lease granted by James Esdaile, Esq., to Samuel
Hammond the younger, and bearing date the 18th of July, 1839, of Hunt's
Farm, in Upmiuster, Essex, by entry thereon under the power to him for
that purpose contained in the said lease, by reason of the bankruptcy of
the said Samuel Hammond the younger, and he hath agreed to grant a
lease thereof to the said J. A. Wright, for twenty-one years from the 29th
of September, 1844, at the same rents and under the same terms as the
same farm was lately held by the said Samuel Hammond, save and except
such part tliereof as consists of the cottage and premises in the said lease
mentioned to be in the occupation of the said Edward Hook, — on the fol-
lowing terms and conditions ; It is therefore hereby mutually agreed by
and between the said C. W. Colls and J. A. Wright, that the said C. W.
Colls shall grant, and the said J. A. Wright shall accept, a lease of all the
said farm and land (except the cottage and premises in the said lease stated
to be in the occupation of Edward Hook, and with such exception of timber,
and of game, fish, and wild-fowl, and liberties, as in the said lease to the
said Samuel Hammond are excepted), at the yearly rent of 316^. 8s., clear
of all deductions except land-tax, and payable quarterly. The lease to com-
mence on the 29th of September next, if the said C. W. Colls can then legally
make and execute a lease thereof, or as soon after as the said C. W. Colls
shall be in a situation to grant a lease. The said yearly rent to commence
from the commencement of the term, or on possession being given, which
shall first happen, and to be paid quarterly. The said J. A. Wright also
to pay such further rents as are provided for and reserved by the said lease
to the said Samuel Hammond. The said lease to contain the same or the
like covenants, provisos, conditions and agreements as are contained in the
said lease to the said Samuel Hammond, and such further covenants and
agreements as are usual, according to the custom of the country. The said
J. A. Wright to pay down to the said C. W. Colls, on possession being
delivered to him of the said farm hereby agreed to be demised to him (ex-
cept the said cottage as aforesaid), the sum of 500/., as a bonus or premium
for the said lease ; and also to pay all the costs, charges, and expenses of
this agreement, and a counterpart thereof, and of the said lease, and of
a counterpart tliereof, and to execute and deliver a counterpart of such
lease to the said C. W, Colls : the same agreement and lease and counter-
parts to be prepared by the solicitor of the said C. W. Colls. The said
J. iV Wright is not to require, or to call for, or to see or investigate the
title of the said C. W. Colls. The said J. A. Wright to take the growing
crops at a valuation, to bo made by two arbitrators, one to be named by
eacli ])arty, with power for those two arbitrators to name an umpire ; the
award of any two of them to be binding. And, in case either party shall
refuse or neglect, for ten days, to name an arbitrator, after the other party
SECT. II.] WRIGHT V. COLLS. 99
has named an arbitratoi-, then the arbitrator so named shall have power to
name another arbitrator, and he and such arbitrator so named by him shall
have liberty to name an umpire, if they cannot agree ; and the award of
any two of them to be binding. But, if the said C. W. Colls should not
have legal right to sell the said crops, he is not to be bound so to do.
Witness, the hand.s of the said parties," etc.
Under this agreement, the plaintiff was let into possession of the farm,
which he occupied for two years, during which he duly paid the rent re-
served, and also paid 250/. of the 500/. bonus. Hammond having pre-
sented a petition to the court of review, in January, 1845, obtained a
s?</)ersec/eas of the fiat against him ; and in 1846 commenced an ejectment
to recover possession of the farm.
One Woodward, who was called as a witness on the part of the plaintiff,
proved that the defendant had repeatedly declared to him that Hammond's
lease was void, and good for nothing.
It also appeared, that, in September, 1844, a draft lease had been sub-
mitted by the defendant to the plaintiff's solicitor, and returned by him
approved.
The only evidence of the issuing of a fiat against Hammond, was, the
production of a supersedeas, which the learned judge ruled to be sufiicient
for that purpose.
As to the first issue, the learned judge merely left it to the jury 'to find
what damages the plaintift" had sustained by the defendant's breach of con-
tract. Upon the second issue, he directed the juiy to find for the plaintiff',
which they did : upon the third issue, he directed them to find for the de-
fendant ; they, however, found that issue for the plaintiff : upon the fourth
issue, he directed a verdict for the plaintiff, — reserving leave to the de-
fendant to move to enter the verdict on that issue for the defendant, if the
court should think him so entitled : upon the fifth issue, he gave the jury
no direction, and that issue they found for the plaintiff: and, as to the
count for money had and received, the learned judge told the jury that the
plaintiff was entitled to recover the 250/. which he had paid on account of
the 500/. premium.
The jury thereupon assessed the damages on the first count at 50/. and
on the second at 250/.
Sliee, Serjt., in Easter term, 1848, obtained a rule nisi for a new trial,
on the ground of misdirection, and that the assessment of damages upon
the two counts was inconsistent ; and also to arrest the judgment, on the
ground that there was no averment in the declaration that the plaintiff ten-
dered, or was ready and willing to pay, the 250/., residue of the 500/.
Lush and Hawkins, in Hilary vacation, 1849, showed cause.
Shee, Serjt., and Bramwell, in support of the rule.
CoLTMAN, J,, now delivered the judgment of the court, — after stating
the agreement and the pleadings, — as follows : —
100 WRIGHT V. COLLS. [CIIAP. H.
The reraaiuing question is, whether there is evidence to support the
couut for monev had and received.^ The agreement in this case was so far
acted upon that the plaintiti' was admitted into possession, and occupied
the land for two years, and paid 250/. in part of the 500/. ; and, it having
turned out in the end that no lease could or would be granted to him, he
claims to have the 250/. returned to him, as being paid on a consideration
which has failed, — that consideration being, as the plaintiff alleges, the
promised grant to him of a lease for twenty-one years. The defendant, on
the other hand, contended that the consideration for paying the sum of
500/. was not solely the granting of the lease, but that the whole of the
matters agreed to be done on the one side, was the consideration for the
•whole of the matters to be done on the other side. It may be admitted
that such is in general the case, — that the whole of the stipulations on
the one side are the consideration for the whole of the stipulations on the
other : but such is not necessarily the case ; nor is it the case, we think,
in this agreement, which is of a special nature ; and it is expressly stated
in it that the sum in question is a bonus or premium for the lease, and the
gi"anting of the lease is the particular consideration for which the bonus
was to be given.
It was understood between the parties that there might be some difficulty
or delay in granting a valid lease ; and therefore the parties contemplated
the commencement of a tenancy before the lease was granted ; and the
yearly rent of 31G/. 85. was to commence, in that event, from the time
when possession was delivered ; and the sum of 500/. was then to l)e paid.
But it cannot be supposed to have been the intention of the parties that
the defendant should keep the sum of 500/., if he never made the lease.
The object of the tenant in making such an agreement is, that he may
have a security that he shall keep the land for the specified term, so that
he may safely lay out money in improvements at the commencement of
his term, of which he may reap the benefit before his term is expired. He
may reasonably be supposed to have been willing to pay an annual rent
for the possession of the land, but not to be willing to pay the bonus
or premium, unless he gets the security of the term ; and therefore it is,
that, in express terms, he states that the money is to be paid as a bonus for
the lease, not as a consideration for making the agreement. The lease,
then, not having been granted, the consideration must, after such a lapse
of time, be considered to have failed, and the count for money had and
received is maintainable.
Under this state of circumstances, the defendant is entitled to have the
verdict entered for him on the fourth issue ; and the verdict for the plain-
tiir on the other issues will stand.
Jiule accordingly.
* Oiily so much of the opinion is given as relates to this question. — En.
SECT. II.] GOODMAN V. POCOCK. 101
GOODMAN V. rOCOCK.
In the Queen's Bench, June 6, 1850.
[Reported in 15 Queen's Bench Reports, 576.]
Indebitatus assumpsit for work and labor, journeys, etc., money paid,
and on an account stated. Pleas: 1. Nou assumpsit. Issue thereon.
2. Payment. Replication, traversing the payment. Issue thereon.
On the trial, before Erle, J., at the Middlesex sittings in Trinity term,
1849, it appeared that the defendant engaged the plaintiff as a commercial
traveller, from 23d January, 1847, at a salary of 200^. a year payable quar-
terly, and dismissed him from that employment on the 8th April, 1848.
The plaintiff then brought an action for the wrongful dismissal. The
declaration in that action contained a special count for such dismissal, and
also the common counts for work and labor, money paid, and on an account
stated : the particulars delivered contained items for four quarters' salary
up to 23d January, 1848, and 19^. 6s. Ud. for disbursements and expenses;
they also gave credit for payments to the defendant, 168/. Is. 9d., and
claimed a balance of 511. 5s. 2d. On the trial of that action, before Lord
Denman, C. J., at the Middlesex sittings after Hilary vacation, 1849, his
Lordship expressed an opinion that the plaintiff could not recover for
service actually rendered during the broken quarter after 23d January,
1848, because what might be due for such service was recoverable under
the indebitatus count only, and was not included in the particulars. The
jury thereupon gave damages for a portion of unpaid salai-y up to 23d
January, and for disbursements and expenses (deducting payments allowed
in the particulars, and others proved), and also 50/. for the wrongful dis-
missal, and stated that they had not taken into the account any service
rendered between 23d January and the date of plaintiffs dismissal. The
particulars in the present action claimed a ratable portion of salary for the
broken quarter, and 51. 6s. for disbursements and expenses during the same
period. Ehle, J., was of opinion that, as the plaintiff by suing on the con-
tract in the first action had treated the contract as still open, he could not
now recover under the common count for work and labor, and that he was
entitled to recover for money paid only. The jury gave their verdict ac-
cordingly ; and leave was reserved to the plaintiff to move to increase the
damages, if the court should be of opinion that damages were recoverable
pro rata for the fraction of a quarter, under the common count for work
and labor.
Humfrey, in Trinity term, 1849, obtained a rule nisi accordingly.
Knowles now showed cause.
Humfrey and Barnard, contra.
102 GOODMAN V. POCOCK. [CIIAP. 11.
Lord Campbell, C. J. I am extremely sorry if the plaintiff has sustained
anv hardship in consequence of the course which this litigation has taken :
but wo must decide this case according to the principles of law ; and, ac-
cording to those principles, I have not the slightest doubt that this action
must fail as to the claim now in question. The plaintiff was hired for a
year at wages payable quarterly ; and in the middle of a quarter he was
wrongfully dismissed. He might then have rescinded the contract, and
have recovered pro rata on a quantum meruit} But he did not do this ; he
sued on the special contract, and recovered damages for a breach of it. By
this course he treated the contract as subsisting ; and he recovered damages
on that footing. It is said that he recovered in that action in respect of no
services except those of the past quarters. I receive with profound respect
the opinion which the illustrious judge who tried the former action is said
to have expressed : but I have a clear opinion, and I must act upon it, that
the jury in assessing damages for the wrongful dismissal ought to have taken
into the account the plaintiff's salary up to the time of his dismissal. It is
said there is now no plea to raise the point. The plea of non assumpsit is
quite sufficient : it obliges the plaintiff to show a debt due ; and that could
be only by showing that work was done for which payment could be claimed
imder tlie common count. Hartley v. Harman '^ is a different case ; the con-
tract was, not for a year, but at the rate of so much per annum, the
engagement to be terminated by a month's notice on either side ; and the
special count was for not giving the month's notice, and not for a wrongful
dismissal : there was no question of service rendered for a broken quarter
or for any other broken period ; the service rendered was a complete per-
formance of the contract ; the contract was a completely executed contract
80 far as regarded the service. Under these circumstances it was rightly
held that the plaintiff could not recover on the special count for his actual
service, but that he should have had a common count as on an executed
contract, and that he might set himself right by a second action.
Pattesox, J. I am not aware that this precise point has been raised
in any case. In Smith v. Hay ward* money was paid into court, and in
Archard v. Hornor* there was a tender, enough in both cases to cover the
service up to the time of dismissal ; so that the question did not arise in
either of those cases. Hartley v. Harman ^ was treated as a mere case of
a month's notice or a month's wages : the contract said nothing about a
month's w:iL'cs. Imt it was so treated; so the dismissal was not wrongful:
' A fjilLii V may |ios.-,ibly lurk in the uso of the word "rescission." It is perfectly tnie
that a rontnict, as it is iniide by tlie joint will of the two parties, can only be rescimlt-d
by the joint will of the two parties; but we are dealing here not with the rij,'lit of one
I«arty to rescind the contract, l)ut with his right to treat a wrongful repudiation of the
contract by the other party as a complete renunciation of it. — BowEN, L. J., in Mersey
Steel & Iron Co. v. Naylor, 9 Q. B. Div. 648, 671. — En.
« 11 Ad. & E. 798. 8 7 Ad. & E. 544. * 3 Car. & P. .349.
SECT. II.] GOODMAN V. POCOCK. 103
the only fault was the non-payment of a month's wages. The damages in
such a case are liquidated; but, according to Fewings v. Tisdal^ they can-
not be recovered under an indebitatus count. Mr. Smith in the note,
already cited, to Cutter v. Powell,'^ says, perhaps " the result of the author-
ities on this vsubject may be, that a clerk, servant, or agent, wrongfully dis-
missed, has his election of three remedies : viz., that, 1. He may bring a
special action for his master's breach of contract in dismissing him, and
this remedy he may pursue immediately." " 2. He may wait till the ter-
mination of the period for which he was hired, and may then, perhaps, sue
for his whole wages, in indebitatus assumpsit, relying on the doctrine of con-
structive service, Gandell v. Poutigny " ; ^ " 3. He may treat the contract
as rescinded, and may immediately sue, on a quantum meruit, for the work
he actually performed, Planche v. Colburn." * I think Mr. Smith has very
properly expressed himself with hesitation as to the second of the above
propositions ; it seems to me a doubtful point. The plaintiff in this case
has selected two out of the three remedies suggested : he has sued specially
on the contract for the wrongful dismissal, and also on the quantum meruit
for his actual service, treating it as a rescinded contract. To bring in-
dehitatus assumpsit he must rescind the contract. Planche v. Colburn,* on
which case principally we granted this rule, is not satisfactorily reported.
There were two counts in the declaration ; and it does not appear on which
the verdict was taken. The defence appears to have been that the plain-
tiff had entered into a new contract ; but the jury negatived that. Tindal,
C. J., says : " I agree that when a special contract is in existence and open,
the plaintiff cannot sue on a quantum meruit : part of the question here,
therefore, was, whether the contract did exist or not. It distinctly ap-
peared that the work was finally abandoned; and the jury found that no
new contract had been entered into. Under these circumstances the plain-
tiff ought not to lose the fruit of his labor." The Lord Chief Justice, cer-
tainly, is reported as if he considered the plaintiff entitled to recover on
the quantum meruit. It may be that the plaintiff was content to treat the
contract as rescinded and take damages pro rata, which would bring the
case within Mr. Smith's third proposition. The damages now claimed by
the present plaintiff are only for the period of service during the broken
quarter in which he was dismissed. In Hartley v. Harman ^ all the ser-
vice had passed into indehitatus assumpsit. Here the service for the
broken quarter has not so passed. The plaintiff did not rescind the con-
tract, but sued upon it; and the damages given to him in his special action
must be taken to have been awarded to him in respect of the period sub-
sequent to the last complete quarter which he served. I think this rule
must be discharged.
Coleridge, J. In a case like this the servant may either treat the con-
1 1 Ex. 295. 2 2 Smith's L. C. 20. ^ 4 Campb. 375.
* 8 Biu". 14. 6 11 Ad. & E. 798.
104 PRICKETT V. BADGER. [CIIAP. II.
tract as resciuded and bring indebitatus assumpsit, or he may sue on the
contract ; but ho cannot do both ; and, if he has two counts, he must take
the verdict on one only. Here the plaintiff elected to sue on the contract ;
and he cannot now sue iu this form.
Erle, J. I am of the same opinion. The plaintiff had the option either
to treat the contract as rescinded, and to sue for his actual service, or to
sue on the contract for the wrongful dismissal. He chose the latter course ;
and he cannot now turn round and try the former course. As to the other
option referred to by Mr. Smith, I think that the servant cannot wait till
the expiration of the period for which he was hired, and then sue for his
whole wages on the ground of a constructive service after dismissal. I
think the true measure of damages is the loss sustained at the time of the
dismissal. The servant, after dismissal, may and ought to make the best
of his time ; and he may have an opportunity of turaing it to advantage.
I should not say anything that might seem to be a doubt of Mr. Smith's
very learned note, if my opinion on this point were not fortified by the
authority of the Court of Exchequer Chamber in Elderton v. Emmons,^
Rule discharged.^
PRICKETT V. BADGER.
In the Common Pleas, November 20, 1856.
[Reported in 1 Common Bench Rejiorts, New Series, 295.]
This was an action for work and labor, and for money alleged to be due
upon an account stated. Plea, never indebted. The writ was issued on
the 4th of June, 1856.
The particulars of demand were as follows : —
To attending you in Southampton Buildings, receiving instructions to dis-
y>ose of by private contract about 14 acres of freehold land in tlie Seven
Sisters Road, HoUoway, Middlesex, at 650Z. per acre ; meeting you on the
ground, wlien you pointed out the same ; making plan to a large scale ;
attending applicants with particulars and terms ; and ultimately forward-
ing you an offer that we had received of 700^. per acre, — commission, as
agreed, at 1/. 10s. per cent £143 5 0
Thk cause was tried before the Lord Chief Baron, at the last assizes at
Guildford. The facts were as follows : The plaintiff was a house and es-
tate agent. The defendant is lord of the manor of Highbury. In the
month of July, 1852, the defendant called ujion the plaintiff, and, accord-
ing to the plaintiff's evidence, representing that he had an interest in a
> 6 C. B. 180.
^ Wlierc a contract has been so far performed as to leave only a simple debt between
the iiarlicti, indcbiUUus assumpsit will lie. Stone v. Rogers, 2 M. & W. 443. — Ed.
SECT. II.] PKICKETT V. BADGER. 105
piece of land containing about fourteen acres, parcel of the manor, proposed
to the plaintiff to look out for a purchaser at the price of about 650/. per
acre. The plaintiff agreed to do so, at the same time telling the defendant
that his terms would be a commission of 1| per cent upon the amount of
purchase-money. The plaintiff immediately set about preparing a plan and
advertisement ; wrote letters to and had communications with several per-
sons, and ultimately, in November in that year, received an offer of 075/.
per acre from the Birkbeck Land Society. The defendant then for the first
time informed the plaintiff that he had no interest in the land, but that it
belonged to one Wagstaffe ; and Wagstaffe at first stated that he himself
had not completed the purchase of the land, and afterwards declined to sell
it to the Birkbeck Land Society : and, in January, 1853, the plaintiff was
desired by Wagstaffe to take no further steps in the matter. On cross-
examination, the plaintiff admitted that he had been informed by Wagstaffe
in September, 1852, that he had an interest in the land, and that it could
not be sold without him.
At the close of the plaintiff's case, it was submitted on the part of the
defendant that the action was wrong in form ; for that the plaintiff's own
evidence showed that the only contract (if any) between the parties was
a special contract for a commission of 1| per cent on his accomplishing a
sale of the land, as stated in the particulars ; and that the action should
have been a special action for wrongfully withdrawing the authority to sell.
The Lord Chief Baron overruled the objection, — holding that it was
competent to the plaintiff to sue upon a quantum meruit ; and he likened
the case to that of a man, who having a house which he is desirous of letting
or selling, places it in the hands of several house-agents ; in which case,
he said, that, though the successful agent alone would be entitled to
claim commission, the others would clearly be entitled to something for
their trouble.
The defendant and Wagstaffe were then called. The former stated, that,
though he had told the plaintiff that the land in question was for sale at
about 600/. or 700/. per. acre, he never asserted that it was his, or that he
had any interest in it, and never employed him to offer it for sale ; that
the land had never been sold ; and that no demand in respect of commission
or otherwise was ever made upon him by the plaintiff until the year 1855.
And Wagstaffe stated that neither the plaintiff nor any one else had any
authority from him to offer the land for sale.
In leaving the case to the j ui-y , the Lord Chief Baron told them, that,
though the plaintiff was not, under the circumstances, entitled to the 1|-
per cent commission, he was still entitled to recover a reasonable remunera-
tion for his services.
The jury returned a verdict for the plaintiff, damages 50/. ; and his
Lordship directed the judgment and execution to be stayed until the fifth
day of the ensuing term.
106 PRICKETT V. BADGEK. [CHAP. 11.
Montagu Chambers, Q. C, on the former day in this term, obtained a rule
nisi for a new trial on the ground of misdirection, and also that the verdict
was against the evidence.
Shee, Serjt., and Hawkins on a snbsequent day showed cause.
Montagu Chambers, Q. C, and I/aiice in support of the rule.
'\ViLLi.\MS, J. ^ I am of opinion that there was no misdirection in this
case. But I think there was evidence which was fit for the consideration
of the jury, that the defendant employed the plaintiff to sell the land, upon
the terms, that, if he found a purchaser at the price named, he was to re-
ceive a commission of 1| per cent; and that the plaintiff bestowed his
labor in endeavoring to find, and did find, a purchaser at that price ; but
that the negotiation failed because the defendant was not prepared to come
forward as vendor ; and that so the plaintiff was prevented from earning the
stipulated commission. If the jury believe those facts to be estal)lished,
then, according to Planche v. Colburn,^ and other authorities in conformity
therewith, the plaintiff was entitled to abandon the special contract, and
resort to an action founded upon the promise which the law would infer
from such a state of facts. That was evidently the view taken by the Lord
Chief Barox at the trial. It has been contended that that is erroneous, and
that it should have been left to the jury to say whether there was any such
in-.plied contract. I think it was not a question for the jury at all. It is
true that the Court of Exchequer in De Bernardy v. Harding,* appears to
have treated it as a matter for the consideration of the jury; but the de-
cision there is quite consistent with Planche v. Colburn, and Alderson, B.,
distinctly states and approves of the principle of that case. For these
reasons, I am of opinion that the direction of the Lord Chief Baron was
quite right, and that there was nothing to leave to the jury. I am anxious it
should not be supposed that the court intends to lay it down as a general
rule, that, where an agent is employed to sell property, and his authority
is revoked before anything has been done under it, he is at liberty to resort
to the common counts for his work and labor in endeavoring to find a pur-
chaser. In such a case, nothing more appearing, if the plaintiff attempted
to rely on the qiiantum meruit, he would probably be met by the implied
understanding that the agent is only to receive a commission if he succeeds
in effecting a sale, but, if not, then he is to get nothing. But no such
answer wji-s or could Vie set up here, because the plaintiff had actual!}' suc-
cee«l('d in finding a person who was willing to ])econie a purchaser at a price
exceeding the price demanded, :uiil w:is only prevented from carrying out
tl)e negotiation by the defendant's inability to convey. With regard to the
second bniiich of the rule, as the LoRU Chief Baron has expressed himself
not satisfied with the verdict, the cause must go down again, the costs to
abide the event.
' Ckkhkwkm,, .T., liad gone to Chambers. 2 3 Bing. 14 ; 1 Moo. & S., 51.
• 8 Ex. 822.
SECT. II.] PRICKETT V. BADGER. 107
Crowdkr, J. I also think there was no misdirection in this case. The de-
fendant having declined, from whatever cause, to sell the land after the
plaintiff had succeeded in procuring a purchaser willing to take it at the
price proposed, and the plaintilf having thus done all he could to entitle him
to the stipulated commission, the Lord Chief Baron ruled, that, although
the plaintiff could not maintain an action \xpon the special contract, he was
nevertheless entitled to recover upon the common count a reasonable re-
muneration for his work and labor. In this I am of opinion he was quite
ri'dit. His ruling is perfectly consistent with the law as laid down in the
notes to the case of Cutter v. Powell, in 2 Smith's Leading Cases, L At
p. IG, the learned editors say, — " It is an invariably true proposition, that
wherever one of the parties to a special contract not under seal has, in an
unqualified manner, refused to perform his side of the contract, or has disa-
bled himself from performing it by his own act, the other party has there-
upon a right to elect to rescind it, and may, on doing so, immediately sue on
a quantum mernit for anything which he had done under it previously to the
rescission : this, it is apprehended, is established by Withers v. Eeynolds,^
Planche v. Colburn,^ Franklin v. Miller,^ and other cases." Again, at p. 31,
it is said, — " It being, therefore, established that, where one contractor has
absolutely refused to perform, or rendered himself incapable of performing,
his part of the contract, the other contractor may, if he please, rescind ;
such act or such refusal being equivalent to a consent to the rescission : the
remaining part of the proposition above stated is, that, upon such a rescission
he has a right, if he have done anything mider the contract, to sue imme-
diately for compensation on a quantum meruit. That he should do so, is
consistent with reason and justice ; for, it is clear that the defendant can-
not be allowed to take advantage of his own wrong, and screen himself from
payment for what has been done, by his own tortious refusal to perform his
part of the contract, which refusal alone has enabled the plaintiff to rescind
it. He cannot, however, recover on the special contract, and must therefore
be entitled to sue upon a quantum mertiit, founded on a promise implied by
law on the part of the defendant to remunerate him for what he has done
at his I'equest ; and, as an action on a quantum meruit is founded on a
promise to pay on request, and there is no ground for implying any other sort
of promise, he may of course bring his action immediately. This point is de-
cided by Planche v. Colburn." It is insisted on the present occasion, that
the Lord Chief Baron should have left it to the jury, whether under the cir-
cimistances a contract for reasonable remuneration was to be implied. It
seems to me, however, that that is a question of law, and not a question for
the jury. It would be idle to put it to the jury to imply what of necessity
they must imply. In De Bernardy v. Harding, it is true, something is said
by Alderson, B., as to leaving it to the jury ; but the decision does not turn
on that. Here it seems to me, that, under the circumstances proved, a con-
1 2 B. & Ad. 882. 2 g Ring. 14 ; 1 Moo. & S. 51. 3 4 Ad. & E. 599.
108 BARTHOLOMEW V. MARKWICK. [CHAP. II.
tract was implied by law to pay the plaintiff a reasonable remuneration for
his labor, and consequently the direction was correct. I agree with my
brother Williams that the ordinary rule as to employing an agent to let or
to sell for a certain commission, where the authority is revoked before any-
thing has been done under it, does not apply to the present case. As, how-
ever the learned judge who tried the cause is dissatisfied with the result,
it must go down again.
WiLLES, J. I am of the same opinion. The form in which the objec-
tion was presented at the trial, was, that the declaration should have been
framed specially for a wrongful withdrawal of the authority to sell. That,
however, is an erroneous notion. There ai'e many instances in the books
which might be cited to show that, under circumstances like these, the
plaintiff may maintain an action upon the money counts. In the case of
goods shii)ped from abroad, to be paid for in three months from arrival,
under ordinary circumstances the goods must be paid for though they
never arrive : but, if the shipper by his wrongful act prevents their arrival,
the buyer is not bound to pay for them. I entirely agree with my learuod
Brothers as to the substance of the case. It is quite clear that the plaintiff
was entitled to some remuneration. In pursuance of the retainer, he pro-
ceeded to find a purchaser for the land ; and it was only the defendant's
disinclination or inability to proceed that prevented the sale being completed.
The plaintiff would have been entitled to receive the commission agreed on,
if the defendant's conduct had not prevented his earning it. I must confess
I do not see why the jury should not have given him the full amount.
The learned judge being dissatisfied with the verdict, there must be a new
trial, upon the terms suggested.
Rule absolute for a new trial, the costs to abide the event.
BARTHOLOMEW and Others v. MARKWICK.
In the Common Pleas, January 11, 1864.
[Reported in 15 Common Bench Reports, New Series, 711.]
This was an action for goods sold and delivered. Plea, never indebted.
At the trial before Keating, J., at the sittings at Westminster after last
Trinity term, it appeared that the action was brought to recover the price
of certain furniture supplied to an hotel which the defendant was about to
open in Hanover Square ; the terms on which the goods were sold being,
present payment of one-half in cash, the remainder by bill at six mouths.
Tl»e first portion of the goods — which amounted to 88^. lis., after deduct-
ing for certain articles not in accordance with tlie order — was sent on
or about the 3d of April, 1863. The whole supply contemplated would
amount to between 000/. and 700/. The plaintiffs requiring payment or
SECT. II.] BARTHOLOMEW V. MARK WICK. 109
security for the goods already sent, before supplying any more, the defend-
ant on the 1 7th of April wrote to them as follows : —
Gentlemen, — The way you do your business will not suit me. I have
an account for a large amount of goods not purchased, and a demand made
for payment, opposed to treaty. Your salesman well knows my terms :
and I now close all further orders, and desire what 1 have not purchased
may be taken off my premises. I will not be responsible for them against
daniat'e. Mark Markwick.
I shall settle your amount upon the terms agreed, when corrected. I
can but regret my recommendation.
Some further communication took place between the parties ; and, on
the 21st of April, the defendant wrote to the plaintiffs, as follows: —
Gentlemen, — I am surprised at what I have heard, that you demand
security for further orders. You will give me cause for this fairly. When
you have done so, or upon your doing so, I am ready to close my account
upon the terras agreed upon and this day assented to by you. I am will-
ing also to carry out my order in good faith, [stating certain particu-
lars], and pay also when delivered, upon the same terms as agreed. As
to my position, I know it, and what is in my possession in property, and
which in three or four months is coming to me. I have no desire to have
goods refused to me ; but I can do without them. I leave you to carry
out in good faith, after reference had from a man of the highest standing ;
and I desire to know, as is fair to me, what is said of me.
Mark Markwick.
On the part of the defendant it was objected that the plaintiffs should
have declared upon the special contract, and could not recover on the count
for goods sold and delivered, at all events until after the expiration of
the six months' credit ; and for this was cited Chitty on Contracts, Gth
Ed. 390.
For the plaintiffs it was submitted that the defendant's lettex's amounted
to a rescission or repudiation of the special contract, and that consequently
the plaintiffs were entitled to sue for goods sold ; and the following passage
from the notes to Cutter v. Powell,^ was relied on, — "It is an invariably
true proposition, that, wherever one of the parties to a special contract
not under seal has, in an unqualified manner, refused to perform his side
of the contract, or has disabled himself from performing it by his own act,
the other party has thereupon a right to elect to rescind it, and may, on
doing so, immediately sue on a quantum meruit for anything which he has
done under it previously to the rescission : this, it is apprehended, is es-
tablished by Withers v. Reynolds,^ Planche v. Colburn,^ Franklin v. Miller,^
and other cases."
1 2 Smith's L. C. 4th Ed. 15, 2 2 B. & Ad. 882.
» 8 Bing. 14 ; 1 Moo. & S. 51. « 4 Ad. & E. 599.
110 BARTHOLOMEW V. MAEKWICK. [CHAP. II.
The learned judge proposed to allow the plaiutifFs to amend their dec-
laration ; but they declined to avail themselves of the permission. He
then told the jury, that, if they thought the defendant had refused to pay
the moiety in cash and to give a bill at the stipulated date for the residue,
that would amount to a rescission of the contract, and entitle the plaintiffs
to sue on a quantum vieruit.
The jury returned a verdict fur the plaintiflFs, damages 88Z, 17s.
Coleridge, Q. C, in Michaelmas terra lust, obtained a rule nisi for a new
trial, on the ground of misdirection. — He referred to Chitty on Contracts,^
and to the case of Paul v. Dod.^
0' Brien, Serjt., and H. Matthews showed cause.
Coleridge, Q. C, and Griffits, in support of the rule.
Erle, C. J. I am of opinion that this rule should be discharged. The
action is brought for goods sold and delivered. It appears that the plain-
tiffs and defendant early in April last entered into a treaty for the sale and
deliver}' of a large quantity of furniture, which the jdefendant was to pay
for half in cash and half by bill at six months. Under this contract, cer-
tain goods were delivered, some of which, to the value of 88^. 17s., were
retained by the defendant. Disputes then arose between the parties, and
on the 17th of April the defendant wrote a letter, in which he says, —
" The way you do your business will not suit me. I have an account for a
large amount of goods not purchased, and a demand made for payment,
opposed to treaty. I now close all further orders, and desire what I have
not purchased may be taken off my premises." Neither cash nor bill was
given for the goods kept. No doubt, the plaintiffs could have maintained
an action upon the special contract, if the contract had remained open ;
and for the purposes of this case it is conceded that he could not have sued
for goods sold and delivered. But it appears to me that the defendant's
letter amounted to a putting an end to the contract, and that the plaintiffs
had a right to treat it as rescinded, and to sue for the fair value of the
goods which had been delivered and kept. The authorities as to what will
amount to such a rescission of a contract as to entitle the plaintiff to sue
upon a quantum meruit, were very much discussed during my time in the
Court of Queen's Bench, in the case of Hochster v. De la Tour,^ and in some
subsequent cases.* Those authorities, I think, warrant us in holding that
the plaintiff was entitled to treat the contract as rescinded, and to sue
for goods sold and delivered.
Ths rest of the court concurring, Rule discharged.
1 6th Ed. 390. 2 2 C. B. 800. « 2 Ellis & B. 678.
* See Avery v. Bowflen, 5 Ellis & B. 714, in error, 6 Ellis & B. 953 ; and Reid v. Hos-
kins, 5 Ellis & B. 729, in error, 6 Ellis & B. 953.
SECT. II.] WEAVER V. BENTLEY. Ill
JAMES WEAVER v. ELIJAH BENTLEY.
In the Supreme Court of the State of New York, May, 1803.
\^Re}>orted in 1 Caines, 47.]
This was an action of assumpsit to recover back the consideration paid
on an agreement under seal in the following words : " November the 2Gth,
1796. Know all men by these presents, that I, Elijah Bentley, do bind
myself to procure for James Weaver, lot No. 67, joining Ballcock's on the
west, which lot I am now in possession of, which I promise to procure so
far as this, on these conditions, that is, a lease to be either three years rent
free, then to pay the interest of one hundred and sixty pounds yearly, for
the term of ten years, then with paying one hundred and sixty pounds, to
have a deed for the same lot, containing one hundred acres, which lease I
promise to deliver by the first day of June next, and then if not called for,
whenever called for. The condition of this obligation is such, that if I do
not deliver the said lease, the two sixty pound notes, which are dated
November the 26th, 1796, which I have against James Weaver, shall be of
none etfect. As witness my hand and seal.
Elijah Bentley. (L.S.)."
On the trial of this cause before Mr. Justice Thompson, at the Circuit
Court for the county of Herkimer, the plaintiff produced in evidence the
agreement and affidavits of various payments by the plaintiff.
The counsel for the defendant objected to the plaintiff's right of recover-
ing in this form of action ; insisting that the agreement was under seal, and
imported a covenant, and therefore assumpsit would not lie ; but the judge,
after argument, directed a verdict to be taken for the plaintiff, subject to
the opinion of the court on the point relied on by the defendant.
Kent, J., delivered the opinion of the court. The defendant covenanted
to procure for the plaintiff within a given time, or on demand thereafter,
a lease for certain lands, three years fi'ee of rent, then to pay the interest
of 160/. annually, for ten years, in lieu of rent, and at the expiration of
that period, to have a conveyance of the fee on payment of the principal
sum; in default whereof, two notes of sixty pounds each, given by the
plaintiff to the defendant, were to be void.
The plaintiff made certain payments in money and farm stock to the
defendant, who failed to perform his covenant, and the plaintiff thereupon
brought assumpsit ; and the question now is, whether the action will lie,
or the plaintift" be compelled to resort to his covenant.
This case is so loosely drawn that it scarcely affords sufficient ground for
a decision. It is not stated for what the notes, money, or stock were given ;
112 WEAVER V. BENTLEY- [CHAP. II.
presuming them to have been the considenition of the covenant, the ques-
tion then will be, whether the defendant having f^viled to perform ou his
part, the plaintiff may disaffirm the contract and resort to his assumpsit
to recover back what he had paid. We are of opinion he had his election
either to proceed on the covenant, and recover damages for the breach, or
to disaffirm the contract, and bring assumpsit to recover back what he had
paid on a consideration which had failed. Judgment, therefore, must be
for the plaintilT.
Lewis, C. J., Radcliff, J., and Thompson, J., concurred.
Livingston, J. Two questions were submitted to us in this case.
1. Do the terms of the contract import a covenant]
2. Can the plaintiff waive covenant, and bring assumpsit to recover the
consideration paid for the land ?
In answer to the first it is only necessary to state, that the defendant
"binds himself" under seal to procure for the plaintiff a certain lot of land,
and " promises " to deliver the lease by a certain day. The words " bind
and promise " create a covenant as strong as any which could have been
used.
It follows, then, that an action of covenant will lie on the instrument on
Bentley's non-performance, to recover back all that has been paid. When
that is the case the party must rely on the security he has taken, there
being no necessity for the law to imply a promise different from the one
contained in the terms of the contract. Promises in law exist only where
there is no express stipulation between the parties ; thus in 2 T. R. 100,
where a surety had taken a bond of indemnity from his principal, he was
not permitted to resort to an action of assumpsit for the money he had
paid. This is a stronger case, for if the present suit be maintainable for
the money paid in consequence of this covenant, I see nothing to prevent
the plaintiff from bringing an action on the instrument itself, for other
damages which may have been sustained by the defendant's non-perform-
ance, and thus subjecting him to two suits for a compensation which might
have been obtained in one ; for these reasons I think it more safe to adhere
to the rule which confines a man to the security he has taken, than to
depart from it, merely because the merits may be with the plaintiff. The
case of iJ'Utricht v. Melchor,^ cannot be law. In my opinion there should
be judgment for the defendant.
Judgment for the 2ilciintif.
1 1 Dall. 428.
SECT. II.] DEllBY V. JOHNSON. li;
JOHN DERBY and Others v. FREDERICK A. JOHNSON
AND Others.
In the Supreme Court of Vermont, December Term, 1848,
[Reported in 21 Vermont Reports, 17.|
Book Account. Judgment to account was rendered, and an auditor was
appointed, who reported the facts substantially as follows : —
On the 16th day of March, 1846, the plaintiffs and defendants entered
into a written agreement, by which the plaintiffs agreed to perform in the
most substantial and workmanlike manner, to the acceptance of the en-
gineer of the Vermont Central Railroad Company, all the stone work,
masonry, and blasting on the three miles of railroad taken by the defend-
ants, at certain specified prices by the cubic yard. On the 23d day of
March, 184G, the plaintiffs commenced work under the contract, and con-
tinued until the 23d daj^ of April, 1846, when the defendant Johnson
directed and requested the plaintiffs to cease labor and to abandon the
farther execution of the contract. In consequence of this request and
direction the plaintiffs immediately, on the same day, ceased laboring
under the contract and abandoned its farther execution. In the afternoon
of the same day, and after the men and teams of the plaintiffs had been
taken from the work in pursuance of this notice and request of the defend-
ants, the defendants did advise, or request, the plaintiffs to do something
more to a culvert, which was partly finished, and which had been that day
condemned by the engineer, so that thereby a part of the culvert might
be taken into the estimate of work done, which was to be made by the
engineer the next day ; but the plaintiffs declined so doing. From the
nature of the work, and its unfinished state, at the time the work was dis-
continued, the value of a very considerable portion of the work performed
could not be estimated by the prices specified in the contract.
The plaintiffs presented an account of the number of days' labor ex-
pended by themselves and the men in their employ, and of the matei-ials
furnished by them, in the prosecution of the work performed by them
under the contract, amounting in the whole to $313.44; and the auditor
found, that the items were reasonably and properly charged. The defend-
ants presented an account in offset, which was allowed at $15.54.
Upon these facts the auditor submitted to the court the question,
whether the plaintiffs were entitled to recover, and, if so, what amount.
The County Court, March term, 1848, Bennett, J., presiding, rendered
judgment for the plaintiffs for the amount of their account, as claimed by
them, deducting the amount of the defendants' account. Exceptions by
defendants.
VOL. 11, — 8
114 DERBY V. JOHNSON. [CIIAP. II.
Plaft and Ptd- for iK-feiidanls.
A. B. Maymml and Wm. P. Briggs for plaintiffs.
The opinion of the conrt was delivered by
Hall, J. It is insisted, in behalf of the defendants, that the request
and direction of the defendants to the plaintilfs to cease work and abandon
the execution of the contract, is to be considered in the light of a proposi-
tion to the plaintiffs, which they were at liberty to accede to, or disregard,
and that, having acquiesced in it by quitting the work, the contract is to
be treated as having been relinquished by the mutual consent of the par-
ties. But we do not look upon it in that light. The direction of the de-
fendants to the plaintiffs to quit the work was positive and unequivocal ;
and we do not think the plaintiffs were at liberty to disregard it. In
Clark V. Marsiglia,^ it was held, that the employer, in a contract for labor,
had the power to stop the completion of it, if he chose, — subjecting him-
self thereby to the consequences of a violation of his contract ; and that
the workman, after notice to quit work, had not the right to continue his
labor and claim pay for it. And this seems to be reasonable. For other-
wise the employer might be entirely ruined, by being compelled to pay for
work, which an unexpected change of circumstances, after the employment,
would render of no value to him. If, for instance, in this case the location
of the railroad had been changed from the place where the work was con-
tracted to be done, or if the plaintifis' employers had become wholly insol-
vent after the making of the contract, the injury to them, if they had no
power to stop the work, might be immense and altogether without remedy.
Rather than an injury so greatly disproportioned to that which could possi-
bly befall the workman should be inflicted on the employers, it seems better
to allow them to stop the work, taking upon themselves, of course, all the
consequences of such a breach of their contract. Such, we think, is
and ought to be the law. We are therefore satisfied, that the plain-
tiffs were prevented from executing their contract by the act of the defend-
ants, and that the contract is not to be treated as having been mutually
relinquished.
Treating the plaintiffs as having been prevented from executing their
part of the contract by the act of the defendants, we think the plaintiffs
are entitled to recover, as upon a quantum meruit, the value of the services
they had performed under it, without reference to the rate of compensation
specified in the contract. The}' might doubtless have claimed the stipu-
lated compensation, and have introduced the contract as evidence of the
defendants* admission of the value of the services. And they might, in
addition, in another form of action, have recovered their damages for being
j)revented from completing the whole work. In making these claims the
jtlaintiilfi would be acting upon the contract as still subsisting and binding;
anil they miglit well do so ; for it doubtless continued binding on the de-
» 1 Dcnio, 317.
SECT. II.] DERBY V. JOHNSON. 115
fendaiits. But \vc think the phxiii tiffs, upuii the facts stated in tlie report
of the auditor, were at liberty to consider the contract as having been
rescinded from the beginning, and to chiini for the services they had per-
formed, without reference to its terms.
The defendants, by their voluntary act, put a stop to the execution of
the work, when but a fractional part of that which had been contracted for
had been done, and while a large portion of that which had been entered
upon was in such an unfinished condition, as to be incapable of being
measured and its price ascertained by the rate specified in the contract.
Under these circumstances, we think the defendants have no right to say,
that the contract, which they have thus repudiated, shall still subsist for
the purpose of defeating a recovery by the plaintiffs of the actual amount
of labor and materials they have expended.
In Tyson v. Doe,^ where the defendant, after the part performance of a
contract for delivering certain articles of iron castings, prevented the plain-
tiff from farther performing it, the contract was held to be so far rescinded
by the defendant, as to allow the plaintiff to sustain an action on book for
the articles delivered under it, although the time of credit for the articles,
by the terms of the contract, had not expired. The court, in that case,
say, " that to allow the defendant to insist on the stipulation in regard to
the time of payment, while he repudiates the others, would be to enforce a
different contract from that which the parties entered into." The claim now
made in behalf of the defendants, that the rate of compensation specified in
the contract should be the only rule of recovery, would, if sustained, impose
upon the plaintiffs a contract which they never made. They did, indeed,
agree to do all the work of a certain description on three miles of road, at
a certain rate of compensation per cubic yard ; but they did not agree to
make all their preparations and do but a sixteenth part of the work at
that rate ; and it is not to be presumed they would have made any such
agreement. We are not therefore disposed to enforce such an agreement
against them.
The case of Koon v. Greenman,^ is much relied upon by the counsel for
the defendants. In that case the plaintiff had contracted to do certain
mason work at stipulated prices, the defendant finding the materials. After
a part of the work had been done, the defendant neglecting to furnish ma-
terials for the residue, the plaintiff quit work and brought his action of
general assumpsit. The cotirt held he was not entitled to recover the value
of the work, but only according to the rate specified. The justice of the
decision is not very apparent ; and it does not appear to be sustained by
the authorities cited in the opinion, — they being all cases, either of devia-
tions from the contract in tlie manner of the work, or delays of perform-
ance in point of time. But that case, if it be sound law, is distinguishable
from this in at least two important ])articulars. In that case the plaintiff
1 15 Vt. 571. 2 7 Wend. 121.
Jir. POOLITTLE & CIIAMBEKLAIN V. McCULLOUGH. [CIIAI'. II.
was prevented from cuuiploting his contract by the mere uegligeuce of the
defendant ; in tliis, by his vohmtary and positive command. In that case
there does not appear to have been any difficulty iu ascertaining the amount
to which the ph\intitf would be entitled, according to the rates specified in
the contract; whereas iu this, it is altogether impracticable to ascertain
what sum would be due the plaintiffs, at the stipulated prices, for the
reason that when the work was stopped by the defendants, a large portion
of it was iu such an unfiuished state as to be incapable of measurement.
That case is therefore no authority against the views we have already
taken.
The judgment of the County Court is therefore affi,rrmd.
DOOLITTLE k CHAMBERLAIN v. EDWARD McCULLOUGH.
In the Supreme Court of Ohio, December Term, 18G1.
[Reported in 12 Ohio State Reports, 360.]
Error to the District Court of Hamilton County.
The original action was assumpsit brought iu the Commercial Court of
Cincinnati, by McCullough, upon the common counts for work and labor
done for Doolittle & Chamberlain, at their request. Plea, the general
issue.
The cause was transfeiTcd from the Commercial Court of Cincinnati to
the Court of Common Pleas of Hamilton County, aud was thence appealed
to the District Court by Doolittle & Chamberlain.
Upon the trial in the District Court, McCullough, the plaintiff, gave
evidence tending to show that he did work for the defendants, in grading
and excavating, upon a section of the Cincinnati, Hamilton, and Dayton
liailroad, near Cincinnati, which section the defendants had undertaken to
construct for the railroad company ; that he did the work at the instance
of the defendants ; and that it was worth from eighteen to twenty cents per
cubic yard, amounting to over two thousand dollars.
The defendants gave evidence showing that they, as contractors, had
undertaken in a special written contract with the railroad company to con-
struct said section with other sections of the railroad ; and that, at the
instance of the plaintiff, they entered into a special written contract with
him on the 12th day of April, 1850, by which tlie plaintiff agreed to per-
form the work at the times and iu the manner therein specified, and the
flefendants agreed to pay, and the plaintiff receive in full satisfaction there-
for, the sum of eleven cents per cubic yard ; to be estimated from time to
time during the progress of the work by the engineers of the company, aa
particularly specified in the contract, and that all of the work done by the
SECT. II.] DOOLITTLE & CHAMBERLAIN V. McCULLOUGH. 117
plaintiff" had been performed and measured and paid for under the contract
and at the price named therein, and that the defendants had overpaid him
some $300, on the 15th of November, 1850, when the plaintiff" abandoned
the work before he had half completed his job.
McCullough, to rebut the proof so made by the defendants, gave evidence
tending to show that one Bates, the agent of the defendants, had, with, the
knowledge and permission of the defendants, improperly interfered with,
and produced discontent and dissatisfaction among the hands of the jjlain-
tiff", and induced them to leave the work, and so prevented the plaintiff"
from performing the job according to the terms of the contract, or in any
other manner ; and insisted that the defendants had thereby terminated
the contract.
Different witnesses testified to the value of the work done by the plain-
tiff", and differed somewhat in their estimates of its cost. The witnesses
generally concurred in their estimate of what would be the cost of the
unfinished work embraced in the plaintiff"'s contract.
S. S. L'Hommedien, the president of the railroad company, testified that
he was acquainted with the work done by the plaintiff" for the defendants,
and also with that part of the work included in his contract, but left un-
finished by the plaintiff"; that he regarded the upper three feet of the
grading done by the plaintiff" worth ten cents per cubic yard ; that so much
of the grading remaining to be done, when the plaintiff" ceased working, as
contained hard-pan, was worth three times as much per yard as what had
been done ; that to take the job through, altogether, it was worth from
twenty-five to thirty cents per cubic yard to do the work as required by the
contract.
Tiie engineers who measui-ed the work gave testimony to the same eff"ect,
and say the job was a very hard one for the plaintiff", at the contract price ;
and there was no evidence to the contrary introduced by either party. The
plaintiff" claimed, and the defendants did not deny, and all the proof showed
that the work could not be done at the price stipulated in the contract,
without loss to the plaintiff".
It was insisted, on behalf of the plaintiff", that the contract was put an
end to, on the part of the defendants, by the intermeddling and improper
talk and conduct of Bates, their general superintendent, with the workmen
and hands of the plaintiff", whereby they were made dissatisfied and were
induced to quit work for him.
Upon this point, the proof tended to show that the plaintiff", while pros-
ecuting the job, became embarrassed and unable to pay his hands ; that
considerable excitement and discontent arose among them ; that Bates, the
agent of defendants, made a proposition to the plaintiff", if he could not go
on with the job, to give up his contract to the defendants, and to sell to
them his shanties, tools, etc., prepared along the line of the job, and in that
way raise money to pay off' his hands. The plaintiff" insisted that the hands
118 DOOLITTLE & CHAMBERLAIN V. McCULLOUGII. [CHAP. II.
were thereby made discontented, and induced to leave his employ; but
this was denied by the defendants, and they also denied that they were
responsible for what Bates said or did.
The court instructed the jury as follows : —
" If the jury believe that the contract was terminated by the defendants,
against the consent of the plaintiff, the latter will not be confined to the
contract price, but he may, in this action, recover what the work done is
actually worth." To this charge of the court the defendants excepted ; and
asked the court to charge the jury : —
" 1. That, nnder no circumstances, can the plaintiff recover more than
the actual value of the work shown to have been done.
" 2. That the terms and conditions of the contract are binding and
obligatory upon the parties, and that, by the terms of the contract, before
the plaiutifl" was entitled to demand pay for work done under the contract,
from the defendants, he was bound to have his work estimated by the chief,
or assistant engineer, and the estimate so made, if any was exhibited, is
binding on the parties, provided that estimate was honestly made by the
engineer.
" 3. That an estimate made by any person, not an engineer on the Cin-
cinnati, Hamilton, & Dayton Kailroad, is not the evidence the parties agree
to receive, and cannot control the estimate made by the engineer whose
estimate is required in the contract.
" 4. If they find that the work was done under the written contract, given
in evidence by the defendants, then, even if the contract was mutually
agreed to be abandoned, in the middle of November, 1850, the plaintiff can
only recover for the actual amount of work done, at the contract price,
up to that time, from which is to be deducted the amount of payments
made."
All, except the first of these propositions, the court refused to give in
charge to the jury ; to which refusal the defendants excepted.
The verdict was for the plaintiff for $755.35.
The defendants thereupon filed their motion for a new trial, on the
following grounds : —
1. The verdict is contrary to evidence.
2, The court erred in the instruction given to the jury"; and in refusing
to instruct the jury as requested by the defendants.
The court overruled tliis motion and entered judgment on the verdict,
and the defendants excepted, and to reverse that judgment filed a petition
in error in this court, insisting that the District Court erred : —
1. In its charge to the jury, and in refusing to charge as requested by the
defendants.
2. In overruling their motion for a new trial.
Fox and Fox for plaintiffs in error.
King, Anderson, and Sage for defendant in error.
SECT. II.] DOOLITTLE & CHAMBERLAIN V. McCULLOUGII. 119
SuTLiKF, J. Tlie evidence is voluminous, and it niiglit bo difficult for us
to determine, from the record, whether or not it warranted the conclusion
to which the jury must have arrived, not only that the conduct of Bates
toward the workmen of the plaintiff was improper, and induced them to
leave the work, but also, that the defendants were accountable for such
conduct, from the fact that Bates was at the time their employee.
We have no difficulty, however, in coming to a conclusion in relation to
the first assignment of error.
The defendants below requested the court to instruct the jury, that if
they found the work to have been done under the written contract, previous
to the abandonment of the contract by the parties in November, 1850, that
the plaintiff could only recover for the actual amount of the work then
done, at the contract price. The court refused to so instruct the jury, but
instructed them that, if they believed the contract was terminated by the
defendants, against the consent of the plaintiff, he would not be confined
to the conti'act price, but might, in the action, recover what the work done
was actually worth.
We regard the exception to the charge of the court as having respect
particularly to this part of the charge ; and to this point our attention has
been more particularly given.
What, then, is the rule of damages, in an action brought upon a cause of
action arising under a contract terminated by the other party against the
will of the party bringing the action 1 And is it true, that the price of
services rendered, or goods delivered under a contract fixing by its terms
such price, is to be in nowise thereby affected, after the contract has been
terminated by the other party, against the will of the party performing'?
This precise question, I believe, has not been heretofore decided by this
court. In the case of Taft v. Wildman,^ tried in this court at the Decem-
ber term, 1846, the court say : " In contracts where the precise sum is
fixed and agreed upon by the parties, as in many actions of assumpsit and
covenant, the jury are confined to that sum."
In the case of Alden and another, assignees of Berkill, a bankrupt v.
Keighley (H. T. 1846),^ Bullock, C. B., says: "But there are certain
established rules according to which they (the jury) ought to find ; and
here, then, is a clear rule, — that the amount which would have been
received if the contract had been kept is the measure of damages if the
contract is broken." The action below was in general assumpsit, or upon
an implied contract, charging the defendant with a breach of the implied
contract, and asking a judgment for the resulting damages. To sustain his
action the plaintiff proved the amount of services by him rendered for the
defendants, at their request, and also the value of the services in the esti-
mation of the witnesses ; and upon such a state of facts, in the absence of
its being shown that there was a special agreement between the parties in
> 15 Ohio R. 123. 2 15 m. & W. 117.
120 DOOLITTLE & CHAMBERLAIN V. McCULLOUGH. [CIIAP. II.
relation to the same, and the amount to be paid fur the services so proved
to have been rendered, the hiw implies uu agreement or promise, on the
part of the defendants, to pay so much to the plaintiff as the services were
reasonably worth. Such is presumed to have been the mutual understand-
ing of the parties, in the absence of any express promise. But as soon as
it is made to appear that there was a special contract between the parties,
under which the services were rendered, the law has respect to the actual
contract, and will not presume or imply a different one ; the object of courts
being to enforce, not to make or change the contracts of parties.
In this view of the case, whether the contract has been fully performed
by the plaintiff, or only partly performed, and prevented by the defendant ;
to obtain remuneration for the services so rendered, the plaintiff" might,
under our former practice, either commence an action of general assumpsit
to recover the amount such services were actually worth, or an action of
special assumpsit, and recover for a breach of the express contract, under
which the services had been performed. The only difference would be, that
if the action were commenced upon the expressed contract, the plaintifif
might have to prove the terms of the contract, and the rendering of the
services according to its terms; whereas, if the action were in general
assumpsit the plaintiff would only be required to prove the fact of having
rendered the services at the instance of the defendant, and the value of the
services ; and it would then be incumbent upon the defendants to prove
the special contract, to take the case out of the implied contract. But
when the special contract is proved, whether by the plaintiff" or defendant,
under which the services were rendered, the special, and not the implied
contract must determine the rights and liabilities of the parties arising in
regard to the services. The price having been determined and mutually
agreed upon by them, neither of the parties can vary the price so fixed by
the contract. Nor, as to the price of the services actually rendered under
the contract, while in force between the parties, can it avail the plaintiff,
bringing his action to recover therefor, that siuce the rendering the ser-
vices, the defendant has put an end to the special contract. The fact
would still remain, that the services were rendered under a special con-
tract, and at the price agreed upon and expressed by the parties.
And if the action upon the contract so made by the parties, and termi-
nated by the defendants against the will of the plaintiff, be brought to
recover damages generally, the same rule would apply as to the services
actually rendered. The party having rendered the services would be
entitled to recover at the rate agreed upon and stipulated in the contract
between the parties, although of much less value than the jmce expressed
in the contract ; and, in like manner, the plaintiff woiild be restricted to the
amount stipulated in the contract as the agreed price, although actually of
much greater value.
The action of assumpsit is termed an equitable action. When brought
SECT. II.] DOOLITTLE & CHAMBERLAIN V. McCULLOUGII. 121
to recover damages for breach of contract, whether express or impHcd, it is
always for the recovery of money which the plaintiff, by reason of such
delinquency of duty on the part of the defendant, is, in equity and good
conscience, entitled to demand and receive of him. This is the argument :
it is the duty of parties to perform their contracts ; and where one party
has been delinquent in the performance of his contract, and damage has in
consequence resulted to the other party, the party sustaining the damage
has his right of action to recover the damage from the delinquent party.
The actual damages resulting to the plaintiff from the breach of the con-
tract by the defendant is the amount of damage which the defendant is
liable to pay, and which the plaintiff is justly entitled to recover for such
delinquency. This damage so occasioned the other party by the delin-
quency of the party failing to perform, may consist, partly in a neglect to
compensate the other party for the part performance, and partly in termi-
nating the contract, before fully performed by the other party, and pre-
venting his acquiring the profit and benefit under it which he would
otherwise have derived, and was legally entitled to ; or, the damage may
have resulted from either. But it is certain that where there has been a
part performance, and that part paid for, under the contract, according
to its terms, and the contract has then been terminated wrongfully, by the
party so having paid, it cannot be that the termination of the contract
occasions damage or gives any right of action to the other party in regard
to the part so performed and paid for under the contract. The damage in
such a case, if any, arises from wrongfully precluding the other party from
performing and receiving pay for that part of the contract nnperformed on
his part. And the question of damage, in such case, depends upon the
terms of the contract, and circumstances of the case. If the proof shows
that the plaintiff might have derived profit from the completion of the
contract, on his part, he may be entitled to recover what the proof shows
would have been the probable amount of the profit which he has so lost,
as damages to which he is entitled for such termination of the contract.
But where the proof shows that the plaintiff, by fully performing, would
have realized no profit, but in fact sustained a loss, he cannot in any sense
be found to have sustained damage, or entitled to recover any sum as
damage for the termination of the contract by the other party.
It is true, that the early English writers, and among which authorities,
perhaps, may he mentioned Bacon's Abridgment and Chitty on Contracts,
seem to express the opinion that the contract itself hardly furnishes any
measure of damages ; and that the amount of damages is to be left for the
most part in actions on contract in such cases, in the same manner as in
actions uf tort, to the discretion of the jury. I>ut the modern authorities
are not so, subject to the general principle already stated, tliat the actual
loss of the party is all for which the law gives him the right to recover
compensation ; and it may be laid down as a rule, in all such cases, that
122 DOOLITTLE & CHAMBERLAIN V. McCULLOUGH. [CIIAP. II.
the express contract so existing between the parties, ueces&irily furnishes
the measure of damages, to the extent of the evidence thereby afforded ;
and to the same extent as in actions brought to recover damages in like
cases, where the contn\ct continues in force, and has not been terminated,
but only neglected and unperformed on the part of the defendant.
Thus, in the case of Farrand v. Boucbell,* the court say, " In no case
where the action (assumpsit) is for money had and received, goods sold
and delivered, or for work and labor performed, which from the nature of
the contract itself furnishes the standard of assessment, are the jury allowed
to give more than the amount received with interest, or the value of the
articles delivered or the services rendered."
The counsel for the defendant in error refer to the case of Clark et aL
V. The Mayor of Xew York,^ as an authority to sust^-iin their claim to recover
the full amount of the costs of doing the work which had been done before
the contract was terminated. Pratt, J., in delivering the opinion in that
case, says : " It is clear, that under the common counts the plaintiffs can-
not recover the same amount of damages which they might be entitled to
recover in an action for a breach of the special contract. They must be
confined in this action, either to the price of the work stipulated in the
contract, or the actual worth of the work done. When parties deviate from
the terms of a special contract, the contract price will, so far as applicable,
generally be the rule of damages. But when the contract is terminated by
one party against the consent of the other, the latter will not be confined
to the contract price, but may bring his action for the breach of the con-
tract, and recover all that he may lose by way of p>rofits in not being
allowed to fulfil the contract ; or he may waive the contract, and bring his
action on the common counts for work and labor, generally, and recover
what the work done is actually worth." No authorities are referred to by
the judge, nor was the expression of these remarks required to sustain the
decision of the court. The opinion was pronounced at the December term,
1850, and it is quite possible the case of Clark v. Marsiglia,' decided in the
Court of Errors in that State, in July, IS-to, may be the authority relied
upon by the judge. In that case the only point before the court, and
decided in the case, was the right of a party doing work once ordered, after
a countermand of such order, to recover the agreed price at the time of
making the order. The court, after deciding that the party ordering the
work had a right to countermand the order, remark upon the occasional
necessity of tlie party who employs another to do work under an express
contract, to suspend the work and put an end to the contract. And in this
connection the court say : " In all such cjises the just claims of the party
employed are Siitisfied when he is fully recompensed for his f>art perform-
ance, and indernnifieii for liis loss in respect to the part left unexecuted."
And this is, no doubt, a correct exposition of the party's right of action in
» Harpers K. S3. » 4 Comst 338. « 1 Denio, 317.
SECT. II.] DOOLITTLE & CHAMBERLAIN V. McCULLOUGII. 123
such a case, to wit, recompense for the work done, and remuneration for
the profits lost on the work remaining to be done under the contract. But
how recompensed for the work done ] Certainly, by being paid precisely
the price that both parties have agreed shall be paid, and accepted as its
just value.
This case in Denio, then, is no authority ; nor are we aware of any
aiithority for the opinion so expressed by the judge in the case of Clark v.
The Mayor, that " when the contract is terminated by one party against
the consent of the other, the latter will not be confined to the contract
price ; " and that, if he bring his action on the common coimts for work
and labor, he may " recover what the work done is actually worth ; " and
that " the actual value of the work and materials must be the rule of
damages."
Indeed, there is no intimation by the court in this case of Clark v. The
Mayor, of an intention to depart from the former holdings of the court in
that State. In the case of Koon v. Greenman,^ the question was directly
presented to the court. Greenman had agreed to build two stacks of
chimneys, etc., for Koon at a certain stipulated price, within a limited
time. Greenman commenced the work, but was hindered by the neglect
of Koon to perform, on his part, by furnishing materials, etc. Greenman,
then, abandoned the job, and sued to recover for the work done. He gave
evidence of the actual value of the work done, and by permission of the
court was suffered to recover the full value of the work, although on the
part of the defendant below, it was insisted that he was only entitled to
recover at the rate specified in the contract. The case was brought before
the Supreme Court of New York on this precise question at the May term,
1831, and the following is the opinion of that court upon this point as
pronounced by Southerland, J. : " Where a special contract is rescinded,
or performance is prevented by the defendant, and the plaintiff seeks to
recover for the work done under the general counts, the defendant may
give the special contract in evidence, with a view to lessen the quantum of
damages. So far as the work was done under the special contract, the
prices specified in it are, as a general rule, to be taken as the best evidence
of the value of the work. When it does not appear that the work was
rendered more expensive to the plaintiff than was contemplated when the
contract was made, or than it otherwise would have been, in consequence
of the improper interference of the defendant, or of his neglect or omission
to perform what, by the contract, he was bound to do, the contract price
should be held conclusive between the parties," etc.
It is true, in the case of Merrill v. The Ithaca and Owego Railroad Co.,^
the court liold that when delay is caused by the wilful acts or omissions of
the party for whom the work is done, originating in a premeditated design
to embarrass and throw obstacles in the way of performance by the other
• 7 Wend. 121. 2 jg Weud. 586.
124 DOOLITTLE & CHAMBERLAIN V. McCULLOUGII. [CHAP. II.
party, wno, notwithstanding, proceeds, and bestows his time and labor in
attempting the completion of the job, until, in despair, he finally abandons
the work, the rule that the special contract must control, as to the rate of
compensation, no longer prevails, and the party is entitled to recover under
a quantum meruit. But the court say, in that case, " If one party, by his
conduct or silence, leads another to believe that he is at work for him on
certain wages, he is estopped and shall not add to his demand." And it
will be seen from the case itself that the increase of the price was really for
other services not included in the contract, or rather for services rendered
under diflerent and more unfavorable circumstances than expressed, or con-
templated by the parties in their contract. The case is, therefore, no
departure from the rule expressed before by the same court in the case of
Koon V. Greenman. For, in that case, it will be remembered, the court
limit the rule to cases " where it does not appear that the work was ren-
dered more expensive to the plaintiff than was contemplated when the
contract was made," etc.
"While it must be admitted that there are cases, and dicta of judges,
frequently to be found in the books, which seem to sustain the rule given
in charge to the jury by the District Court, I think the weight of authority,
as well as the reason upon which the true rule of damage must necessarily
rest, will be found very decidedly opposed to the instruction so given to
the jiuy.
In the case of Haywood v. Leonard,^ where the plaintiff was allowed to
recover for work done under a special contract, on a qnantum meruit, for
building the house, not built according to the contract, the jury had been
told at the trial to consider what the house was worth to the defendant,
and to give that sum in damages; but the court held such instruction
wrong, and that the jury should have been instructed to deduct so much
from the contract price, as the house was worth less, on account of the
departure from the stipulations of the contract. And the same doctrine
is held in New York and other States, as applicable in like cases. Indeed,
in the case of Clark and others v. The Mayor of New York, it was held that
where parties deviate from the terms of a special contract to perform work
and labor, in an action for work done, the contract price will, so far as
ajiplicable, generally be the rule of damages.
I>ut a better illustration of the correctness of the rule of damage can
hardly bu f«jund than is by this case presented in the record before us.
The plaintiff brought his action below to recover the damages which he
had sustained from the neglect of the defendants to perform their part of
the contract. The only right of action asserted by the plaintiff in his
declaration, was to recover the damage which the defendants by their
deliiujucncy in regard to the contract subsisting between the parties, had
occasioned the plaintiff. It is true, the plaintiff below only stated the
1 7 rick. 181.
SECT. II.] DOOLITTLE & CHAMBERLAIN V. McCULLOUGH. 125
porforraauce of tlie services by himself, and complained of the defendants for
not having paid him what tlie law would presume was agreed upon by the
parties. But when an express agreement is proved to have been made by
the parties, the law will not imply one ; but looks to the existing contract
between the parties.
How, then, stood the case between the plaintiff and defendants under
that contract, as shown by the proof upon the trial ; and what damage was
McCuUouoh thereby shown to have sustained from the delinquency or
wrong-doing of Doolittle & Chamberlain, in regard to the contract between
the parties 1
The written contract required McCullough to do all the excavation at
eleven cents per cubic yard. The proof shows that he proceeded to do the
least expensive part of the work, the surftice excavation, which, say the
witnesses, might be done at from fifty to thirty-three per cent of the cost
per yard i-equired to do the remaining part of the work embraced in the
contract. The proof also showed that the plaintiff had been fully paid the
eleven cents per cubic yard for all the excavation and work by him done
under and according to the terms of the written contract. But the plain-
tiff, it is true, proves that the excavation which he did under the contract
actually cost or was worth from eighteen to twenty cents per cubic yard ;
and that Doolittle & Chamberlain had terminated the contract without his
consent. In this state of facts the law gives McCullough this equitable
action of assumpsit to recover from Doolittle & Chamberlain the damage
which their wrongful termination or disregard of the contract has caused
to him, McCullough. But McCullough can only recover the amount which
he shows he has lost by such delinquency of Doolittle & Chamberlain.
What then is the loss or damage which the proof shows McCullough sus-
tained from the contract having been so terminated ? McCullongh's proof
is, that it cost from eighteen to twenty cents to excavate, per cubic yard,
that part of the job which he did ; and all the proof goes to show that the
residue of the excavation would cost from two to three times the amount
per cubic yard, of that actually excavated. But the written contract, which
the plaintiff complains that the other parties terminated, without his con-
sent, required him to do all the excavation at eleven cents per cubic yard.
And if the plaintiff's claim and proof are entitled to respect, the excavation
actually done was worth from eighteen to twenty cents per cubic yard, the
residue which the plaintiff has been so prevented from completing at eleven
cents, would cost from thirty-eight to fifty-seven cents per cubic yard. It
is shown by the proof that McCullough was paid more than the full average
price of eleven cents per cubic yard, for all the excavation he did upon the
job ; the only damage, therefore, which he could possibly be entitled to
recover was the pecuniary loss he sustained by being thus prevented from
completing the residue of his job at a cost of from thirty-eight to fifty-
seven cents per cubic yard, and receiving therefor eleven cents per cubic
126 McMANUS & HENRY V. CASSIDY. [CHAP. II.
yard. This is perfectly evident in fact ; and it also results from making
the contract the measure of damages to the same extent intended by the
parties, both at the commencement and performance of the work. Aud
only by reference to the contract can the true amount of damages sufifered
by the plaintiff be ascertained.
The instruction given by the court below to the jury, that the plaiutilf
was entitled to recover the actual cost of the services rendered, regardless
of the price fixed by the express contract, would allow the plaintiff to
recover a large sum of money from the defendants without consideration
and without cause. Indeed, it would allow the plaintiff not only to recover,
without any cause of action being shown, but, in fact, his proof showed
that the termination of the contract complained of had, in fact, occasioned
him no loss, but had actually saved him from ruinous loss ; and to recover
damages when he had sustained none, but had really derived a benefit aud
gain.
The judgment of the District Cotirt must therefore be reversed.
Scott, C. J., aud Peck, Gholson, and Bkinkerhoff, JJ., concurred.
McMANUS & HENEY v. CASSIDY.
In the Supreme Court of Pennsylvania, October 24, 1870.
[Repoited in 66 Pennsylvania State Reports, 260.]
October 24th, 1870. Before Thompson, C. J., Read, Agnew, Shars-
wooD and Williams, JJ.
Error to the Court of Common Pleas of Armstrong County : No. 26, to
October and November term, 18G9.
On the 30th of March, 1867, Robert Cassidy brought an action of as-
sumpsit against Felix McManus and James G. Henry, partners as McManus
& Henry.
Tlic action was to recover the balance due on 2035 railroad ties delivered
to the defendants under a contract under seal, made between the parties
on the 9th of May, 1866, by whicli the plaintiff bound himself to deliver to
the defendants 2000 tics, described in the agreement, to be inspected and
approved ; in consideration of the plaintiff performing his covenants for
delivering the ties the defendants agreed to pay him 60 cents per tie.
Tlie jilaintiir gave in evidence that he had delivered, under the contract,
2035 ties of the kind and in the manner stipulated in the contract. The
tics amounted to $1221, of which $1047.74 had been paid to tlie plaintiff.
The defendants gave evidence in answer to the plaintiff's case, and sub-
mitted this jKjiiit : —
SECT. IT.] McMANUS & HENRY V. CASSIDY. 127
Unless the jury believe that the sealed contract between the plaintiff and
defendants was abandoned by both and all the parties, the plaintiff cannot
recover.
The court (Buffington, P. J.) denied the point, and reserved it. He
further charged : —
" No doubt the plaintiff might have brought his action on the special
agreement, but we are of opinion [he may sustain the present form of ac-
tion if he fully performed the agreement on his part by furnishing the
entire number of ties agreed upon]. There are cases where assumpsit will
not lie. Where the plaintiff seeks to recover on an executory contract
which has not been entirely fulfilled on his part, and has not been virtually
rescinded by the defendant [the action must be founded on the special
a'Tcement. But not so where the agreement has been entirely complied
witli by the plaintiff, the consideration on his part entirely executed, noth-
ing left unfinished, and nothing to be done by defendants but simply to pay
the amount agreed upon]. Especially is this the case where the contract
has been more than fulfilled by the plaintiff, and accepted and enjoyed by
the defendant. [If the jury, therefore, believe that the contract was fully
complied with by the plaintiff, by the delivery of the number agreed upon,
or a number exceeding that agreed upon, which were accepted, inspected,
and approved, we are of opinion that he may recover in this form of action
for the entire number so delivered and inspected.] And we further are of
the opinion that the written contract may be resorted to, to fix and ascer-
tain the measure of damages. If, however, the jury should fail to find the
contract to be completed by the plaintiff", he cannot recover."
The jury found for the plaintiff $183.65, and the court afterwards entered
judgment on the verdict for the plaintiff on the reserved point.
The defendants took a writ of error, and assigned for error the denial of
their point and the parts of the charge in brackets.
J. Gilpin for plaintiff in error.
E. S. Golden, with whom was J. B. Neale, for defendant in error.
The opinion of the court was delivered, January 3, 1871, by
Agnew, J. With a great desire to sustain this judgment, we find our-
selves unable to do so without assuming legislative powers. The courts
both of England and of this State have felt themselves bound by the com-
mon law to maintain the boundaries between actions. Where a plaintiff
has misconceived the form of his action, he must be turned out of court
to begin anew, no matter what be the merit of his cause. This is a blot
upon our jurisprudence, and should be remedied by the legislature. It can
easily be done by simply giving to the courts the power to permit an
amendment of the form of the action at any stage of the cause. Why
should any one be turned away because of the dress in which he appears in
court] The action in this case should have been covenant, and not
assumpsit. It is certainly true, and well settled by authority, that when a
128 • McMANUS & IIENKY V. CASSIDY. [CHAP. II.
special contract has been fully performed, the party who has fully per-
formed it may maiutaiu general indebitatus asstanpsit, and declare in the
common counts for the work and labor or services rendered under it.
Kelly V. Foster,^ Miles v. Moodie,^ Algeo v. Algeo,' Harris v. Liggett,*
Siltzell V. Michael,^ Eckel v. Murphy,® Edwards v. Goldsmith.' The reason
and foundation of this docti'ine appears to be that when a service has been
fully performed, a duty to compensate for it seems to arise independently
of the special agreement. This, however, is really only seemingly so, and
is probably fallacious ; but the doctrine appears to be well settled, as the
cases cited show. Yet, as the evidence that the doctrine cannot bear a
severe test, we find it decided in several cases that part performance will
not suffice, nor will prevention stand for full performance ; and there the
plaintiff must declare upon the special agreement, and show wherein his
part-performance will entitle him to recover. Algeo v. Algeo ; ' Harris v.
Liggett ; * Eckel v, Eckel.® All these cases, however, are where the special
agreement has been by parol or a simple contract in writing. On a careful
examinatitm I have not found a single case where the special agreement
was under seal. The doctrine seems to be universal that where the cause
of action arises upon a specialty, or sealed writing, the action must be
covenant or debt, as the case may be. The only exception to this is where
the specialty has been altered by parol to such an extent as to make it a
new contract, thereby turning the whole into parol ; or where the specialty
is abandoned and a new and independent contract made, though refer-
ring to the sealed instrument for some of its terms. Such are the cases of
Vicary v. Moore,^ Vaughn v. Davis,^ Spangler v. Springer,^" Lawall v.
Rader," Lehigh Coal & Nav. Co. v. Ilarlan.^^ And a distinction is taken
between a mere waiver of a term of the plaintifTs contract, which stands
as a condition precedent to his action, and the contract of the defendant on
which the action is founded ; see Jordan v. Cooper,^* Green v. Roberts,"
McCombs V. McKennan.^^ In the argument, the case of McGrann v. North
Lebanon Railroad Co.^® has been referred to as a case of a specialty where
an action of assumpsit was sustained after performance. But the case is
really jtut on the ground that the special contract had been abandoned,
though it must be admitted that no single ground is very distinctly stated,
and the reasoning of the opinion is not clear. On the other hand, the
cases of Irwin et al. v. Shirley " and Shaffer v. Geisenburg ^* decide that
assumpsit cannot be maintained upon performance of a contract under
1 2 Binn. 4. « 3 Serg. & R. 211. « 10 Serg. & K. 285.
4 1 W. & S. 301. 6 3 W. & S. 329. 6 3 Harris, 93.
7 4 H.irris, 43. » 2 Watts, 4.51. » 2 W. & S. 46.
10 10 HaiTis, 455. " 12 Harris, 283. ^ 3 Casey, 441.
" 3 Serg. & R. 564. " 5 Whart. 84.
15 2 W. & S. 210 ; 3 Citsey, 441, 442. " 5 Casey, 82.
" 10 AVriL'ht, 70. W n Wrjgbt, 500.
SECT. II.] BALLOU V. BILLINGS. 129
seal ; and indeed they may be considered as really ruling the question
before us, — for in both cases the special contract had been completed bo-
fore the action was brought. The judgment must therefore be reversed.
Judgment reversed.
RUSSELL A. BALLOU v. HORACE BILLINGS and Another.
In the Supreme Judicial Court of Massachusetts, January 2, 1884.
\Reported in 136 Massachusetts Reports, 307.]
Holmes, J.^ This is an action to recover money paid under a contract
which the plaintiff alleges to have been rescinded. The contract in question
consisted of mutual covenants, by which the defendants agreed to convey
certain land on payment by the plaintiff of certain sums, and the plaintiff
agreed to pay those sums at the times fixed. The plaintiff did not pay at
those times, but, under the instructions of the court, the jury must have
found that the time was extended, and that, within the extended time, the
plaintiff, having the power and ability to pay the remaining sums, offered
to do so, demanded a conveyance, and was refused.
There was evidence justifying the finding that the time was extended,
and that the demand was made within the time allowed, and under the
circumstances of this case it is unnecessary to inquire further. For the
jury may, and indeed must, also have found that the defendants totally
repudiated all obligation on their part under the contract, whatever the
plaintiff might do or be ready to do.
The defendants have taken that position from the beginning of the litiga-
tion between the parties, and at least say that they took it long before.
Their answers to the plaintiff's bill in equity and to the declaration in this
suit both deny the alleged extension of time upon which the continuance of
their obligation was founded, and both set up that, by reason of the plain-
tiff's failure to pay at the time fixed, they had not been bound since 1875.
The answer in equity adds, that they had always told the plaintiff so since
that date. They confirmed their denial in their pleadings by testimony on
the stand, both in equity and at law. They conveyed parcels of the land in
question to other parties even earlier. The defendant Ambrose gives his
belief that the plaintiff had no right to the land as the reason for his
refusal to convey.
We must take it then that the defendant's refusal was not merely con-
ditional, until the plaintiff should do something more, but an absolute
unconditional repudiation of any obligation whatever, and, as the jury have
found, at a time when the plaintiff was in no default. Such a repudiation
did more than excuse the plaintiff from completing a tender ; it authorized
^ Only as mucli of the opinion is given as relates to the question of rescission. — Ed.
VOL. H. — 9
130 BALLOU V. BILLINGS. [CHAP. II.
him to treat the contract as rescinded and at an end. It had this effect,
even if, for want of a tender, the time for performance on the defendants'
part had not come, and therefore it did not amount to a breach of
covenant.
It is true that this was a contract under seal, and that it had been
partly performed by the plaintiff. But part performance on the side of
the party seeking to rescind does not affect his rights, as is shown by many
cases. Hill v. Green ; ^ Canada v. Canada ; ^ Goodman v. Pocock.* And,
under the Massachusetts decisions, we do not think that the seal had any
greater importance. It has been held, that a contract under seal may he
rescinded by parol. Hill v. Green ; ^ Munroe v. Perkins.^ And Hill v.
Green goes far to show that such a contract may be rescinded for breach
by the other party. See also Cook v. Gray.^ "Whether these cases would
have been decided the same way in earlier times or not, we have no dis-
position to question them upon this point, and it is going very little further
to hold that such a contract may be rescinded if it is repudiated by the
other side. It is clear that, apart from technical considerations, so far as
the right to rescind goes, notice that a party will not perform his contract
has the same effect as a breach. Phillpotts v. Evans,^ Frost v. Knight.'
And the objection to a rescission of a sealed instrument by an act in pait
is of no greater force where the ground of election is a refusal than where
it is a breach, or than where there is a mutual consent to rescind. Our
opinion is sustained by the language of Daniels v. Newton.* See also
Quincy v. Carpenter,^ Dearborn v. Cross,^° Canal Co. v. Ray."
As the defendants derive their right to keep the money from the con-
tract alone, if the contract is rescinded the plaintiff is entitled to recover."
1 4 Pick. 114. 2 6 Cush. 15. » 15 Q. B. 576.
* 9 Pick. 298. ^ 133 Mass. 106, 111. « 5 M. «& W. 475, 477.
^ L. R. 7 Ex. Ill, 113. 8 114 Mass. 530, 533. » 135 Mass. 102, 104.
^0 7 Cow. 48. " 101 U. S. 522, 527.
12 Where a contract, after part performance, is rescinded by the routiial agreement of
the parties, the claim in respect of a consideration executed under it must be referred to
the agreement for rescission ; and in the absence of any express stipulation, or inijilied
understanding upon the matter, no claim can be made. Thus, where a lease at a rent
payable quarterly was put an end to during a current quarter by mere agreement and
surrender of possession accepted by the landlord ; it was held that the latter could after-
wards make no claim for rent pro rata in respect of the biokcn quarter. (Grimman v.
Legge, 8 B. & C. 324. ) Where a contract of service was terminated by a mere tender of
resignation on the one part accepted by the other, no reference being made to the tipie
elapsed since the last payment of salary accrued due, it was held that no claim could
afterwards be made for the services rendered during that period. (Lam burn v. Cruden,
2 M. & G. 253 ; see Thomas v. Williams, 1 A. & E. 685.)
I'pon this principle where a partnership between two solicitors, upon entering which
a i)reniium hail been ])aid on the one side, was dissolved by mutual consent uncoiulition-
ally ; it was held that no claim could be made for a return of any part of the premium.
(Lee V. Page, 30 L. J. C. 857 ; 7 Jur. n. s. 7Q8.) — Leake, Digest of Law of Contracts, 72.
— Ei..
SECT. III.] ELLIS V. IIAMLEN. 131
Rescission, or avoidance properly so called, annihilates the contract, and
puts the parties in the same position as if it had never existed. Coolidge
V. Brigham.^
/. G. Abbott, J. A. Saivyer with him, for the defendants.
W. H. Dniry, for the plaintiff.
Exceptions overruled.
SECTION III.
FAILURE OF PLAINTIFF TO PERFORM CONDITION OF CONTRACT.
(a.) Wilfully or without Excuse.
ELLIS V. HAMLEN.
In the Common Pleas, June 29, 1810.
[Reported in 3 Taunton, 52.]
This was an action brought by a builder against his employer upon a
special contract for building a house of materials and dimensions specified
in the contract, to recover the balance of the sum therein agreed on; the
principal part of the price having been paid. Upon the trial of this cause
this day at the sittings at Guildhall, before Mansfield, C. J., the defence
was — and the evidence suppoi'ted it — that the plaintiff had omitted to
put into the building certain joists and other materjaLs of the giyoij^dp,^
scription and measure. The counsel for the plaintiff proceeded to inquire
of the witnesses what additional sum must be expended on the house to
make it equal in value to that which was specified in the contract, con-
tending that the plaintiff was entitled to recover in this action the whole
sum which was specified in the contract, excepting thereout the amount of ./ \
this difference in value, which, they said, would be the measure of damages ) v^
if an action had been brought on the contract by the employer against the
builder for not performing liis contract ; and that if the sums which had
already been paid to the plaintiff on account did not amount to the whole
price specified in the contract, deducting therefrom the amount of the before-
mentioned difference in value, the plaintiff was entitled to a verdict for the
residue, minus that difference.
Mansfield, C. J., was of opinion that the phuntiffjno having performed
the agreement he had proved, must be nonsuited!^
The plaintiff's counsel then resorted to a count which they found in the
declaration, for work, labor, and materials, upon a qucmtum valebant, and
said that the defendant, having the benefit of the houses, was bound at
1 1 Met. 547, 550.
t-
132 WALKEK V. DIXON. [CIIAP. II.
least to pay for them according to their value. Mansfield, C. J. Sup-
pose you had come hither upon a quantum valthant only, could you have
recovered on it ] Certainly not. The defendant would have said, " I
made no such agreement ; I agreed to pay youjf_j'Ou would build niy~
house in a certain manner, — which you have not done." Here the
plaintiff has properly declared on his special contract, and he has shown
and proved that he made such a contract, and has received much money
on it. He cannot now be permitted to turn round and say, " I will he
paid by a measurc-and-value price." The defendant agrees to have a build-
ing of such and such dimensions ; is he to have his ground covered with
buildings of no use, which he would be glad to see removed, and is he to
be forced to pay for them besides 1 It is said he has the benefit of the
houses, and thei-efore the plaintiff is entitled to recover on a quantum
valebant. To be sure, it is hard that he should build houses and not be
paid for them, but the difficulty is to know where to draw the line ; for if
the defendant is obliged to pay in a case where there is one deviation
from his contract, he may equally be obliged to pay for anything, haw far
soever distant from what the contract stipulated for.
The plaintiff accordingly was nonsuited, and the case was never again
moveH^
V
WALKER V. DIXON.
At Nisi Prius, before Lord Ellenborougii, C . J., December 23, 1817.
[Reported in 2 Starkle, 281.]
This was an action to recover the value of eight sacks of flour, alleged to
have been sold and delivered to the defendant. Plea, non assumj)sit.
It appeared that the plaintiff had contracted for the sale of 100 sacks
of warranted flour to the defendant, at dis. Gd. per sack ; ten sacksto be
sent immediately on trial ; to be accepted or rejected in two days from tho
sending the ten sacks. Ten sacks had accordingly been sent, of which tlie
defendant jctained four, sending six back, because they were of secondary
quality, and desiring that the error might be rectified. Ten ojher sagkfL
had ailerwards been sent by the defendant [plaintiff] to the wliarf^of Kay-
mond and Storey, these were approved of by the plaintiff Jdefendaut], aud__
he took two of them, leaving the remainder at the wharf, to await jns fur-
ther orders, and these were^ afterwards taken away by the plaintiff, who
reTused~after wards to complete Ins engagement^r The TOO^" sacks. The
dcfendahFaftcrVarJs insistedTipon "his delivering the remain3eFoif the floui^.
and tendered him the whole amount, giving him notice that if he did not
deliver the restTie would iMirchasctlio^ainc (juantity elsewhere, and charge
TnTmvnfJiTEe'
SECT. III.]
SHIPTON V. CASSON
133
It was contended, on the part of the defendant, under the circumstances,
that since the contract was entire the plaintiff" could not split it into parts,
and bring his action for part of the flour, and thereby substitute a diff'erent
contract from that contemplated by the parties.
2'opping and Comyn for the plaintiff".
Scarlett and Wilde for the defendant.
Lord Ellenborough. This is the case of an entire contract for 100
sacks; part of these were delivered, to which objection might have been
made as to quality, buj^ the party did not stand upon that objection, but
offered to pay the_whole. _ And since_the defendant was_ready to perform
the contract, and to payjor the whole at the price agreed jvpon^ including
the four sacks which were objected to. j^am_of_opinion that the plaintiff"
could not afterwards split the contract, and bring his action_ for_parLoQly-^
If the defendant had insisted upon an abatement being made in respect of
the first four, I might have thought difi'erently^^,^
Plaintiff nonsuited}
/
SHIPTON AND Another v. CASSON.
In the King's Bench, April 28, 1826.
[Reported in 5 Bamewall Sr Cresswell, 378.]
Assumpsit, The declaration, which was of Easter term, 5 G. 4, con-
tained the common counts for work and labor, and the money counts.
Pleas, the general issue and set-off" for goods sold and delivered, money
lent, paid, etc. At the trial before Abbott, C. J., at the London sittings
after Hilary term, 1825, a verdict was found fo^Jhe plaintiff"s for_jy36j^
19s. 3(/., subject to the opinion of this court upon the following case -."^ —
The ^efendaiitj^roye^J)^^ set-off", the delivery of bark to the
plaintiffs to the amount of 23Z. is., on the morning of the 26th of Novem-
ber, 1823. In answer to which the plaintiff's proved that such bark was
part of a quantity bargained by the defendant to be delivered to the plain-
tiffs by the following contract : " Sold T. Shipton & Son the whole of the
bark laid in B. Boyes' warehouse, for 5s. per ton on the invoice price, to be
transferred to his account ; and after this, the 26th of November, at their
risk and expense, — the quantity about 57 tons, 17 cwt. B. Casson paying
all expenses of delivery." The invoice price was 10/. per ton. Barges_were
hired by the plaintiff's to take away the bark, and one laid for some days
waiting for the bark, and then went away, the defendant having failed to
deliver the_residue of the quantity stipulated accoi-ding~to his_contract,
within a reasonable time after the contract. It appeared that Mr. Boyes,
' This nonsuit is said to have been set aside ; see infra, 137. — Ed.
'^ Only so much of the case is given as relates to the plea of set-off". — Ed.
<
134 SIIIPTON V. CASSON. [CHAP. II.
m^whqse_possession the said bark was, stopped_the^delivery of the residue
to^ the plaintiffs, and they only obtained bark to the value of 23/. 4s., in
part of the said entire quantity. The first iustahnent of 7s. in the pound
on the said debt of 707/. 13s. 3r/., due from the defendant to the plaintiffs,
amounted to 247/. 13s. Id., being 5/. 3s. \d. more than the sum remitted.
If the 23/. 4s. for the bark delivered to the plaintiffs was to be deducted
and allowed to the defendant from the sum of 707/. 13s. M., then 75. in
the pound on the residue left the remittance made by H. Casson 2/. 19s. M.
more than the first instalment would amount to. This action was com-
menced before the second instalment became due. The case was now
argued by
Chitty for the plaintiffs.
Parke, coidra, was stopped by the court.
Abbott, C. J. The first question is, whether the sum sent as payment of
the first instalment was s\ifficient ; that depends upon the question whether
the plaintiffs were bound to pay for the bark, which they received and
kept, according to its just value, or whether they were entitled to keep it
without making any such payment. I^ agree, that if a contract is made
for the purchase of a large quantity of any article, and a part only is de-
livered, the vendee is not bound to pay for that part before the expTration
of the time fixed forthe^delivery of the whole.^-~Fof if the seller fails to
completc_his contract, the purchaser may return the part dehverecl. j^
[ the case is very different if he elects to keep that part ; he must then pay
the value of it ; and in contracts for the sale of goods the value of a part
I m^ always be a'scertained. It is said, that the value not being asccr-
l"tained cannot be set""offT but the common form of set-off is, that the plain-
tiff is indebted for goods sold and delivered, which, at the time of the sale
and delivery, were worth such a certain sum. In the case of a contract
which cannot be well severed, difficulties as to such a set-off may arise,
e. g., if a contract is made for building a house, and that is only per-
formed in part, it may be difficult to sever the value of the part finished
from the value of that which remains to be done ; but no such difliculty
occurs in the present case. This second question is, whether the remit-
tance came in time, and was of a proper nature. I agree that the plain-
tiffs were not bound to accept it ; they might have returned it, and insisted
upon their right of action. But instead of that they made the amount
avail!il)lo to their own purposes, and undertook to place it to the credit of
the defendant's account. Having done so, as against the plaintjffs, it must_
belakeiTthat there^was no objection either to the nature of the"" remittance
or the time when it wasjuada. —
Baylev, J. I am of opinion that the remittance was sufficient, and that
the objection to the time when it was sent and the manner in which it
was made up, was waived by the plaintiffs. A\'liere an entire contract for
1 Wadilington v. Oliver, 2 N. R. Gl, accord. — Ed.
SECT. III.] SINCLAIR V. BOWLES. 135
goods is performed in part, and the whole may be completed, no action
will lie in respect of that which has been done until after the expiration of
tlie time fixed for the completion of the whole. But where some of tlic
goods have been delivered, and the vendee does not return them upon the
failure of the vendor to perform his part of the contract, thcjatter may-
bring an action for the value (not the stipulated price) of those goods,
althouo-h he is liable to a cross action for the breach of his contract. I
tlTereTorel^hink, that the sum of"23r4s^ the value of the bark delivered,
may properly be considered as constituting an item of set-off at the time
when the instalment became due, although it might not be so immediately
on the delivery of the bark. Secondly, it seems clear that the plaintiffs
waived all objection to the payment made by H. Casson. After receiving
the bills they wrote and informed him that the amount should be placed
to his son's account ; but the fatlier sent them in discharge of the instal-
ment then due, and the plaintiffs had no right to place them to any other
account. Having kept the bills audapplied them to that account, they
cannot nowj^Thirrthe"remiHance^wag late, or that they were not
boundto take the bills in payment.
HoLRoyD~an3rErTTLEDALE, JJ., concurred.
Postea to the defendant.
SINCLAIR AND Another v. BOWLES.
In the King's Bench, February 6, 1829.
[Reported in 9 Barnewall ^ Cresswell, 92.]
This was an action of assumpsit for work and labor done, and materials
found and provided, and goods sold, &c., brought by the plaintiffs, who
were glass-cutters and benders, against the defendant, who was a tavern-
keeper. At the trial before Parke, J., at the London sittings in this
term, the plaintiffs proved that they had repaired_three glass chandeliers_
for the defendant, and that 101. was a reasonable price for the work done
anaTmaterials provided. On the part of the defendant it was proved that
in April last one of the plaintiffs called upon him and asked if he wanted any
new chandeliers. The defendant said he did not, but that he wanted some
old ones repaired ; he desired the plaintiff to look at them minutely and to
say what he could do them for. The plaintiff at first said he would do
them for 8^. The defendant observed that a great deal must be done
t6 them, that thre^ arms were wanting, andjhat if the plaintiff would do
them complete, so as to look well, he would give 10/._ The plaintiff then
looked at them again and said he would make them complete for_that_
sum. On the following day the plaintiff came to take them away, and
the defendant then told him not to tixkc them away unless he would make
136
SINCLAIR V. BOWLES.
[CIIAP. IL
,.r
them complete for the 10/. The plaintiff took them away. They were
brought back in a few^j.iy^s. They had been cleaned, and some icicles and
drops supplied, but they were not in a perfect state. One of the arms,
which was perfect when it was taken away, was broken, and several of the
spangles and icicles damaged ; and in one of the chandeliers the scroll,
which had been sent damaged, was brought back in the same state.
Upon this the defendant refused to give the plaintiff an order for the
money. It was contended on the part of the plaintiffs that even if the
jury believed the evidence given on the part of the defendant, the plaintiffs
were entitled to recover for the work actually done, and materials provided
for the chandeliers. The learned judge was of opinion that the contract
between the parties was entire, and that the plaintiffs were not entitled to
recover at all unless they had made the chandeliers perfect, according to
the contract ; but in order to save expense to the parties, he left it to the
jury, upon the evidence, to say, first, whether the contract had been sub-
stantially completed according to the intention of the pai'ties ; and if it
had not, secondly, whether the defendant had derived any benefit, and to
what amount, for the work done. The jury found, first, that the contract
had not been performed ; and secondly, that the defendant had derived
benefit from the work done, to the amount of 5/. The learned judge then
directed a nonsuit, but reserved liberty to the plaintiffs to move to enter a
verdict for 51.
Gurney now moved accoi'dingly. The defendant, having derived benefit
from the work done by the plaintiffs, is in justice bound to pay for it.
[Bayley, J. The contract was entire, — the defendant (plaintiff) having
never been discharged from his obligation to complete it.] Where an en-
tire contract for goods is performed in part, and some of the goods have
been delivered, and the vendee does not return them upon the failure of
the vendor to perform his part of the contract, the vendor may bring an
action for the value of the goods delivered, although he is liable to a cross
action for the breach of his contract. Here the plaintiff not only cleaned
the chandeliers, but he provided icicles and drops ; the things so provided
ought to have been returned.
Lord Testerden, C. J. The plaintiff ought to have demanded those
articles. The contract between the parties__was, that thg_jiliimj;jj[_shniild
make the chandeliers perfect for 10/. The plaintiff has not performed his
part of the~contract, and cannot, therefore, recover anything in this form
of action.
■ Rule 7'efused.
SECT. III.] OXENDALE V. WETHERELL. 137
OXENDALE v. WETHERELL.
In the King's Bench, May 8, 1829.
^Reported in 9 Barnewall and CressweU, 386.]
Assumpsit for wheat and other corn, goods, wares, and merchandises
sold and delivered. Plea, general issue. At the trial before BxWLey, J., at
the spring assizes for the county of York, 1829, the following appeared to
be the facts of the case. The action was brought to recover the prico^of
130 bushels of wheat, sold and delivered by the plaintiff to the defendant,
at 8s. per bushel. Evidence was giyejuon the part of the plaintiff, that on
the 17th of September, 1828, he had_sold to the defendant all the old
wheat which he had to spare ajjSg. per bushel ; and that he had delivered
to the defendant 130 bushels. The defendant gave evidence to show that
he had made an absolute contract for 250 bushels, to be deTivered within
six weeks, that the price of corn at the time of the contract was 8s. per
bushel, and afterwards rose to 10s. ; and it was insisted on his part, that
the contract being entire, the j)laintiff not having delivered more than 130,
had not performed his part of the contract, and therefore could not recover^
for that quantity. On the other hand, it was contended that the vendor
having delivered, and the vendee having retained part, the contract was
severed pro tanto, and that the plaintiff was entitled to recover the value.
The learned judge was of opinion, that even if the contract was entire, as^
the defendant had not returned the 130 bushels, and the time for com-
pleting the contract had expired ^efore the action was brought, the plain-
tiff was entitled to recover the value of the 130 bushels^which had been
deliveredj^oand ^accepted by the defeJidant ; but he desired the jury to
say, whether the contract was entire for 250_bushels, and they found that
it was. Whereupon a verdict was entered for the^ plaintiff, and the defend-
ant had liberty to move to enter a nonsuit if the coui't should be of opinion
that the plaintiff was not entitled to recovei-, on the ground that he had
not performed the contract.
Brougham now moved accordingly, and relied upon Walker v. Dixon. ^
Lord Tenterden, C. J. In Manning's Digest, p. 389, the court are
stated to have set aside the nonsuit, ex relatione Wilde, of counsel for the
defendant. If the rule contended for were to prevail, it would follow, that
if there had been a contract for 250 bushels of wheat, and 249 had been
delivered to and retained by the defendant, the vendor could never recover
for the 249, because he had not delivered the whole.
Bayley, J. The defendant having retained the 130 bushels after the,
time for completing the contract had expired, was bound by law to pay for
the same. .
1 2 Stark. 281.
138 TURNER r. ROBINSON. [CHAP. II.
Parke, J. "Where there is an entire contract to deliver a large quantity
of goods, consisting of distinct parcels, within a specified time, and the
seller delivers part, he cannot, before the expiration of that time, bring an
action to recover the price of that part delivered, because the purchaser
may, if the vendor fail to complete his contract, return the part delivered.
But if he retain the part delivered after the seller^has failed in performing^
his contract, the latter may recover the value of the goods which he^8_8Q_
delivered.^
Rule refused.
TUENER V. ROBINSON and Another.
In the King's Bench, Michaelmas Term, 1833.
[Reported in 6 Bamewall and Adolphus, 789.]
Assumpsit for work and labor. At the trial before Denman, C. J., at
the London sittings after Trinity term, 1833, the following facts appeared.
The defendants were silk manufacturers ; the plaintiff acted as their fore-
man from January to June, 1831, and sought to recover in this action a
remuneration for his services during that period. The evidence as to the
amount of wages was, that it had been agreed between the plaintiff and
defendants, that the plaintiff was to have wages at the rate of 80/. per
year. In June, 1831, the plaintiff was dismissed by the defendants, for
having advised and assisted their apprentice to quit their service and go to
America, and for that, the defendants had brought an action against the
plaintiff, and recovered 40s. damages. It was contended for the defendants,
that it must be taken on this evidence, that tlieplaintiff had^een hired
for a year^ andimving been rightfully dischargedj'rom their service for mis-
conduct during the year, was not entitled to recover wages pro rata^ and^
Spain V. Arnott ^ was cited. The Lord Chief Justice was of opinion that
there was nothing to repel the ordinary presumption, that the servant wa8_
hired for a year ; and that being so, the whole wages were forfeited before
the term expired, by his misconduct, whereby the defendants vyere pre-
vented from having his services for the whole year. He therefore directed
a nonsuit, reserving liberty to move to enter a verdict for the plaintiff.
Law in this term moved to enter a verdict. There was no proof that
the ])laintiff was hired for an entire year. The evidence as to that was only
tliat he was to have wages at the rate of 80/. per year. Besides, here the
1 In tlie report of this c.ise foiuid in 7 h. .T. 204, 2G5, ]\Ir. Justice Pakkk is reported
as niakinfi tlie following iiilditional n'niaik, "Thus if the eontract is to deliver three ar-
tifli'S an<l the seller sends but one, the buyer may, if he please, refuse to receive it, but,
if he receive it, lie must ]>ay for it, thourrh the contract to deliver the three bt^ not per-
formed. For the breach of tliat contract he must resort to his action." — Ed.
2 2 Stark. X. P. (\ 256.
SECT, III.] MUNIIO V. BUTT. 139
defendants had already recovered against the plaintiff for his misconduct in
enticing the apprentice from their service. [Parke, J. The pritna facie
presumption was, that the plaintiflFwas_hired for a year ; and there was^
-^i5n^ing~toTebut that presumption fand having^vioktedjiis^ duty before^
the year exph-ed^^ as^to prevent the defendants from having his services
forthe^whole^ear, he cannot recover vi&ges pro rata.]
~" T^he court ^ refjisedUhe-ruLe.
JOHN MUNRO V. PHELPES JOHN BUTT.
In the Queen's Bench, January 18, 1858.
[Reported in 8 Ellis cj- Blackhurn, 738.]
First count : that, before the making of the agreement hereinafter men-
tioned, one Donellv had contracted and agreed with the defendant jhat, on
or before the 24th day of June, a. d. 1855, unless the defendant should con-
sent to extend such time, he would, at his own expense,_erect and cover in
and completely fence in, under the direction or with the approbation of the
defendant's surveyor for the time being, on the plot of ground then thereby
agreed to be demised, ^o messuages or dwelling-houses of not less value,
when completely finished, than jOO^. each, in a substantial and workman-
like manner, with good and proper materials, according to the specification
and plan signed between the parties ; and should and would completely fin-
ish the said messuages fit for habitation within six months after thejlaxjixed
for the same to be so covered in ; and afterwards, to wit, on_the_21st day
of Decemberjj^jDj^55^ it was jigreed^ between the plaintiff and the defend-
ant as follows : that the plaintiff should, within one^calendar mmith_j"rom
the date of these presents, at his own charge and cost, well and effectually
complete and finish the said two houses pursuant to and in accordance with
the terms of the said building agreement between the said Donelly and the
defendant, and the specification or specifications thereto annexed, and sub-
ject as aforesaid to the approval of the surveyor of the said defendant ; that,
in the event of tlie said houses being so completed and finished by the plain-
tiff as aforesaid, the defendant should pay the plaintiff the sum of 240^. :
that, for the purpose of the completion of the houses by the plaintiff as
aforesaid, the defendant, by the same agreement, consented and agreed with
tlic plaintiff^cxtend the time fixed for the completion of the said houses
by the said Donelly to the 21st day of January, a. d. 1856, and the defend-
ant also undertook that no objection should be raised to any portion of tlio
works then remaining unimpaired, wliich were executed by the said Donelly
prior to the granting of the certificate therein mentioned by the surveyor
of the defendant to the said Donelly, pursuant to the said building agree-
1 Denman, C. J., Tarke, Taunton, and Patteson, JJ.
140
MUNRO V. BUTT.
[CIIAP. II.
meat ; and that time should in all things in the said agreement with the
plaintiff contained be considered of the essence of the contract ; and the
plaintiff hath duly performed the said agi-eement on his part, except as to
the completion of the aforesaid works within the time in that behalf afore-
said ; which completion within such time the defendant dispensed with ;
and the said sum of 240/. had become and was due and payable to him be-
fore jujtj and all things to entitle the plaintiff to payment thereof, and to
sustain this action for the non-payment thereof, had befoi-e then happened ;
yet no part thereof hath been paid. Common counts for work and materials,
and on accounts stated.
Pleas to the first comit : 1. That the defendant did not agree as alleged;
2. That he did not dispense with the completion of the said works within
the time mentioned ; 3. That the messuages or dwelling-houses were not
completed and finished to the approval of the surveyor of the defendant.
To the common counts : Never indebted.
Issue on all the pleas except the second. To the second and third, de-
murrers. Joinder.
The issues were tried before Wightman, J., at the sittings at Westmin-
ster in Trinity term, 1857 ; when the following facts were proved. The
defendant was the owner of certain plots of land, part of the St. jNIargaret's
Estate at Twickenham in Middlesex. The estate belonged to The Conser-
vative Land Society ; and the defendant had become entitled to the plots
under the rules of the Association. By an agreement dated the 31st of
January, 1855, between the defendant and one Donelly, the defendant
agreed to demise the said plots of land to Donelly, and Donelly agreed, in
consideration thereof, to l)uild upon the said plots two dwelling-houses, to
be completed on or before fhr- 24th nf Jnnp, 18;')5. B}' the agreement the
defendant (therein called the lessor) agreed to advance to Donelly (therein
called the lessee) 1,200/. by instalments, towards the building, etc., the
same to be secured by mortgage, etc. The agreement contained a right of
re-entr
by the lessor in case any of the stipulations in it should not be
performed, and particularly in case the houses should not be completed at
the date mentioned. . The agreement then contained a covenant by Donelly
that he would, on or before the 24th of June, 1855, unless the time was
extended by the defendant or his assignees, erect, cover, and completely
fence in, under the direction or with the approbation of the surveyor for
the time being of the defendant or his assigns, on tlie said plots of ground
in the agreement mentioned, two messuages or dwelling-houses of not less
value than 900/. each, in a siil)stantial and workmanlike manner, according
to a specification and plan agreed uj)on between the parties, and would
completely finish the said messuages fit for habitation within six months
after the day so fixed for the same to be so covered in. The defendant by
the same agreement covenanted with Donelly that, as soon as the said
Donelly had completed fit fur habitation the said messuages or dwelling-
SECT. III.] MUNRO V. BUTT. 141
houses, he would demise them, with tlie plots of ground, to the said Douelly
foj- a term of 9'J years. Tlie works were coumiciiccd by Douelly iu April,
1855, and were contiuuedlmtil November of the same year, when Donclly
was arrested for debt. _At. that time the works were iucomplete, and Donelly
was uuable to complete them. The houses had before that time been mort-
<'af>-ed to The Conservative Laud Society by Donelly, with the assent of the
defendant, for moneys advanced by the Society. On the 21st of December,
A. D. 1855, the following memorandum of agreement was signed by the
plaintiflfand C. P. Butt, the son of and then acting as the agent of and for, j )^
the defendant. "Memorandum of Agreement, made the 21st day of De-J
ceniber, 1855," etc. "The said John Munro, for himself,'' etc., "doth here-
by agree," etc., "and the said P. J. Butt, for himself," etc., "doth hereby
agree," etc., " in manner and form following, that is to say : that the said
John Munro will, within one calendar month from the date "oTthese pres-
eiits, at his own charge andljost well and effectually complete and finish,
or cause to be completed and finished^the_two housesjmd villas, situate
at," etc., "called respectively," etc., "and now let on lease by the said
P. J. Butt to one Donelly, such houses or villas to be completed and
finished pursuant to and in accordance with the terms of the building
agreement made and entered into between the said Donelly and the said
P. J. Butt, and bearing date the 16th day of February, a. d. 1855, and the
specification or specifications thereto annexed, and subject as therein pro-
vided to the approval of the surveyor of the said P. J. Butt ; that, jn the
event of the said houses being so completed and finished by the said
J. Munro as aforesaid, the said R_J. Butt will pay, or cause to be' paid, to
the said J, Munro the sum f^ 9.10/ . ; and, for the purpose of the completion
of the houses by the said J. Munro as aforesaid, the said P. J. Butt hereby
consents and agrees with the said J. Munro to extend the time fixed for
the completion of the said houses by the said Donelly to the 21st of Janu-
ary, 1856 ; and also undertakes that no objection shall be raised to any
portion of the works now remaining unimpaired which were executed by
tiie said Donelly prior to the granting of the last certificate by the surveyor
of the said P. J. Butt to the said Donelly pursuant to the said building
agreement. It is also agreed by and between the parties to these presents
tiiat time shall in all things herein contained be of the essence of the
contract. In witness," etc. In pursuance of this agreement the plaintiff //
employed workmen to complete the works under the superintendence of fj /^
Douelly. 'Ihey were not completed on the 21st, but were alleged to be
completed on the 26th of January, 1856; when application for payment of
the 240^. was made to Mr. C. P. Butt, on the ground that the houses were
then complete. He refused to pay without the certificate of his surveyor,
who examined the houses, declared them to be incomplete, and refused to
give a oertifipnte. At that time Donelly was in occupation of the houses,
and so continued until and after the 8th of March, 1856; wlien he was
1~
142 MUNKO V. BUTT. [ciLVr. II,
adjudicated a bankrupt. The assignees of Donelly claimed the equity of
redemption in the houses, subject to the mortgage thereof to The Conser-
vative Land Society ; and their claim was purchased by the defendant for
150/. The plaintitf, besides proving these facts, gave in evidence a letter
from G. H. Butt, acting for the defendant, to tlie plaintift", dated the 7th of
February, 185G, in the following terms: "Sir, 1 have seen Mr. Paxon to-
day; but no progress appears to have been made with Donelly's judgment-
creditors. Should tliey refuse to do what we require of them, I shall
probably take the course I intended yesterday. My object is to secure
your money and my own before letting anything go to the other creditors,"
etc. The plaintiff tiien proved a letter from G. H. Butt to Donelly, dated
the 19th of July, 185G, in the following terms : "]\Ir. Butt will be obliged
to Mr. Donelly if lie will write him a line stating who is at present in pos-
session of Campanile House and Campanile Axilla, the property of his, Mr.
Butt's, father. Mr. B. has heard accidentally of the houses being in pos-
session of a nian from London, though Mr. Donelly is not gone out ; and
Mr. B. would be glad if Mr. D. could inform him what this means, or who
the said man from London is," etc. No answer to this letter was read. It
was suggested that the person mentioned was a person claiming to take
possession on behalf of a Mr. Burgess, as mortgagee from the defendant.
The plaintiff then proved another letter from Mr. G. H. Butt to Donelly,
dated the 23d of July, 1856, in the following terms : " Many thanks for your
firmness in keeping possession of the houses. When my brother left Eng-
land, my father revoked the power of attorney which he had given to him
and executed a similar one to me ; so that you can make use of my name
as authority for keeping possession," etc. " I do not understand the posi-
tion in which you are placed : but I imagine that you are perfectly safe in
keeping possession till you have a letter from some one who has power to
instruct you to resign. That power is now in my hands, and I will act
upon my right of attorney according to what I hear from liurgess." On
the 9th of August, Mr. G. H. Butt wrote to Donelly. "I have just re-
ceived the enclosed note from my father. You will see by it that he has
j no clioice left but to request you to withdraw, and let the man sent by
!Mr. r.urgess into full possession of the houses." Tliis letter enclosed one
' from the defendant to (J. H. Butt in these terms. "We have been in error
about tlie man sent to Twickenham by P>urgess ; there was nothing hostile
in the proceeding, which has been properly explained to me; and I have no
other course but to request Donelly to withdraw and leave the man in pos-
session. Will you therefore send him instructions accordingly 1 Perhaps
the best way will be to enclose this note as my authority for the step."
It was further proved that in April, 1856, the defendant and his sou,
C. P. Butt, went over the houses with a Mr. Long, a house and estate
agent, and authorized him to let or sell them, and employed him to do
some small wi>rk in them. No surveyor's certificate was ever procured by
SECT. III.]
MUNRO V. BUTT.
U3
the plaiutitF. Upon this evidence it was contended at the trial, on the part
of the defendant, that the plaintitf conld not recover on any count ; not on
the speciixl count, because the conditions precedent were not fulfilled ; not
on the common counts, because there were still other matters open on the
special contract than the mere payment of the money, and there was no
evidence that the contract was rescinded or that a new contract was under-
taken. It was contended, on behalf of the plaintiti; that the defendant was ^
liable upon a quantum meruit to pay for the work actually done by the j
plaintiff, on the ground that lie had taken possession of the houses, and j
thereby of the work done by the phiintitl' thereon. The learned judge held '
that there was no evidence to go to the jury to show that the special con-
tract had been abandoned by the parties and a new one substituted, either
expressly or by implication, to pay for the work actually done and materials
actually supplied according to their value ; and he therefore nonsuited the
plaintiff, giving him leave to move to enter a verdict, if the court should be
of opinion that there was evidence which ought to have been left to the
j^ry.
H. Haickins, in the same term, obtained a rule nisi accordingly. lu the
following term ^
Uugh Hill and 11. Bullar showed cause.
Raymond, in support of the rule.
Cur. adv. vult.
Lord Campbell, C. J., now delivered tlie judgment of the court.
This was a rule to set aside a nonsuit. The action was brought to re-
cover compensation for work and labor. The work and labor had been
done upon two houses of the defendant under a special agreement, two
stipulations of which were that the whole was to be completed on a speci-
fied day, and that it was to be done to the satisfoction of a surveyor named.
The declaration, as to the first of these conditions, both of wiiich had been
held on demurrer to be conditions precedent to the right to recover, alleged
a dispensation by the defendant, and performance as to the latter. The
defendant, by his pleas, travei-sed both the dispensation and the perform-
ance. There were, besides, the common indebitatus counts for work and
labor and materials; and to these the defendant pleaded nunquam indebita-
tus. There was clearly no evidence of_anjL-fiftrt.ific:at,e by the surYeyor._or
any other expression that he was satisfied. The_plaintiff. therefore, could
not recover on the special count : and the main question in the argument
before us was, whether there was not such evidence ot a mutual abandon-
ment of the special contract, and the substitution ot a new Implied contracl;
to' piVV^rThejvork doneluui materials supplied according to their value, as~
ought to^have gone to the jury. That cases may exist where, the specTat
contract remaining open and unperformed, an action may still be main-
tained for compensation on a new contract implied by law, cannot now be
J November 11, 1S57. Before Lord Campbell, C. J., Coleridge ami Wigutman, JJ.
v^
lU^v
["
144 MUNRO V. BUTT. [CIIAP. II.
disputed. The subject is very tibly considered, and the cases collected, in
the notes ^ on Cutter v. Powell, 6 T. R 320. But it is unnecessary for us
to follow the learned counsel through their argument, because it appears to
us that there was no evidence in this case from which such a contract
could be properly inferred by the jury. The facts relied on by thejdaintifF
were that, the work on the house still remaining unfinished, and no certifi-
cate haviu'^oeen procured, the defendant had yet resumed possession and
w^a^ujoYing"tbelHiitsoFhis^ Tabor. Of^iis there certainly was some,
Ihou'di slj'ditTevidence. Now, admitting that in the case of an indepen-
dent chattel, a piece of furniture for example, to be made under a special
contract, and some term, which in itself amounted to a condition precedent,
being unperformed, if the party for whom it was to be made had yet ac-
cepted it, an action might, upon obvious grounds, be maintained, either on
></#-i^,«^^>;i*«.^^^jjy special contract with a dispensation of the conditions alleged, or on an
t^/^^.'u. >-,K^-'- s 4"^pli'^'^ contract to pay for it according to its value; it does not seem to
" ^f^ ^g ^j^.^^ ^j^gj.g ^j.g ^jj^. gi-omids from which the same conclusion can possibly
ice^^,^ '^'^^^'-^^^/follow in respect of a building to be erected, or repairs done, or alterations
■^ <i^<r/**c. .rx^^made, to a building on a man's own land, from the mere fact of his taking
possession. Indeed the term " taking possession " is sc^'cely a cwrect one.
/i.^/^ i*»^ ^^^^^j^^ owner of"theTand~Tsjnev^r ouToTpos'session while_the_workJS--baiag
^^-^^-^^^c^^^^.^-^doneT But, using lEeTerm in a populai- sense, what is he, uuder the sup-
p'osed circumstances, to do] The contractor leaves an unfinished or lU-
coustructed building on his land ; he cannot, without expensive, it may be,
tedious, litigation, compel him to complete it according to the terms of his
contract ; what has been done may show his inability to complete it prop-
erly ; the building may be very imperfect, or inconvenient, or the repairs
yeiy unsound ; yet it may be essential to the owner to occupy the resi-
dence, if it be only to pull down and replace all that has been done before.
How then does mere possession raise any inference of a waiver of the con-
ditions precedent of the special contract or of the entering into a new one 1
If indeed the defendant had done anything, coupled with the taking pos-
session, which had prevented the performance of the special contract, as if
he had forbidden the surveyor from entering to inspect the work, or if, the
failure in complete performance being very slight, the defendant had used
any language, or done any act, from which acquiescence on his part might
have been reasonably inferred, the case would have been very different.
Here there was nothing of that kind ; the reliance of the plaintiff was sim-
ply on the defendant's possession.
We were prcss^ of course with the argument of hardship; it was said to
be unjust that the defendant should enjoy the labor expended and materials
furnished by the plaintiff. The argument of hardship in a particular case is
:dways*a dangerous one to listen to ; but in truth there is neither hardslup^
nor injustice in the rule with its qualification : it~hold8 men to their con-_
1 2 Smith's L. C. 29 (4th Ed).
SECT. III.] Ex park bakrell. In re parnell. 145
tracts ; it admits^ from circumatauces, the substitution of new contracts ;
nor is there any hardship in the present case disclosed by the evidence : and
a verdict for the phiintiff' liiight work a greater hardsliip on the defendant
compatibly with that evidence.
We think the rule ought to be discharged. Rule discharged}
Ex parte BARRELL. In re PARNELL.
In Chancery, July 22, 1875.
[Reported in Law Reports, 10 Chancery Appeals, 512.]
This was an appeal from an order of Mr. Registrar Hazlitt, sitting as
Chief Judge in Bankruptcy, made in the bankruptcy of George Thomas
Parnell.
By an agreement in writing made on the 7th of January, 1874, and signed
by both parties, Richard Barrell agreed to sell to George Thomas Parnell
certain freehold and copyhold hereditaments at East Bergholt, in the county
of Suffolk, for £3000, of which the sum of £300 was to be paid as a deposit
immediately after the signing of the agreement, and the residue thereof on
the completion of the purchase ; and it was agreed that the mirchaser
should take the tixtures at a valuation. It was also stipulated that the
purchase should be completed on the 24th of June, 1874^. and that if from
any cause whatever the purchase should not_be completed on that day, the
purchaser should pay to the vendor interest on the residue of the purchase-
money, and on the valuation of the fixtures, after the rate of £5 per cent,
from that day till the completion of the purchase.
The agreement also contained provisions for the delivery of the abstract
of title, and for sending in objections ; but it contained no stipulation as to
the forfeiture of the deposit in case of the contract failing through the default
of the purchaser.
The deposit of £300 was paid to Barrell in pursuance of the contract,
and an abstract of title was sent to the solicitors of the purchaser within
the appointed time, and the title was eventually accepted by the purchaser
and the draft conveyance prepared. As, however, the purchaser delayed.) rs . I .
the completion of the purchase, the vendor, on the 25th of March, 1875, j,-)^ ^ "^^ T 7''/^
filed a bill against him to enforce specific performance.
On the 2d of April, 1875, Parnell was adjudicated a bankrupt, and by
a.letter dated the 11th of June, 1875, the trustee, in reply to a notice sent
to him by Barrell mider the 24th section of the Bankruptcy Act, 1869,
formally disclaimed the contract of the 7th of January, 1871, and requirgd
the repayment of the deposit of £300. Barrell having refused to repay the
deposit, the trustee applied to the court to order the repayment, and the
1 Reported by W. B. Brett, Esq.
VOL. 11,-10
lU
1
146 JENNINGS V. CAMP. [CHAP. II.
Registrar made an order that Barrell should pay the sum of £300 into
court to abide the result of any application for damages which might be
made by him.
From this order Barrcll_appealed.
Mr. Robinson, Q. C, Mr. Julian Robins, and Mr. Leeke, for the appellant,
were stopped by the court.
Mr. E. Cooper Willis, for the trustee.
Sir W. M. James, L. J. The trustee in this case has no legal or equita-
ble right to recover the deposit. The money was paid to the vendor as a
^marautec that the contract should be performed. The trustee refuses to
perform the contract, and then says, Give me back the deposit. There is no
gi-ound for such a claim. The order of the registrar must be discharged.
Sir G. Mellish, L. J. I am of the same opinion. It appears to me
clear that even where there is no clause in the contract as to the forfeiture
of the depositTif the purchaser repudiates the~ccmFract he~caunot have back
thiTmoneyTasThe contract has gone offlKrough his default.
JENNINGS V. CAMP.
In the Supreme Court of Judicature of the State of New York,
January, 1816.
{Reported in 13 Johnson, 94.]
In error, from the Court of Common Pleas of the county of Madison.
The plaintiff's declaration was in assumpsit, and contained two counts.
The first count stated an agreement between the plaintiff and defendant,
in the court below, dated the 1st of July, 1812, by which Camp, the
plaintiff below and defendant in error, agreed to log up, burn, and clear,
fit for sowing, ten acres of land on a certain lot belonging to the defendant
below, the plaintiff in error, in a good, farmerlike manner, by the 20th
of September, and to fence the said ten acres with a good rail fence by the
1st of October next ; and the defendant below agreed to pay the plaintitf
at the rate of eight dollars per acre, part to be paid in oxen, &c., and then
averred performance.
The second count was a general indebitatus assmnpsit for work and labor.
The defendant pleaded the general issue, and the jury found a sjjecial
verdict ; namely, " That the plaintiff, in pursuance of the contract and
agreement mentioned in the first count, did partly clear the land in that
count mentioned, but made none of the fence ; and then, of his own accord.,
defiiult, and negligence, and without any fault, default, or consent of
the defendant, abandoned and gave up all further proceedings towards
fulfilling the said contract, and_Jiath^not^ y et finished or fulfilled_vvhat_he
undertook to perform by the said contract; and whether, under these
■rA
SECT. III.] JENNINGS V. CAMP. 147
circumstances, it iscompetent and lawful for the plaiiitKY.to put an end to
the said contract in the said first count mentioned, and proceed on a
general count for work and labor, and to recover the value of what he did
iu pursuance of said contract, the jury are uninformed, and pray the
advice of the court," etc.; and they assessed the plaintift^'s damages, on the
second count of the declaration, at fifty dollars. The_court below gave
judgment for the plaintiff, and the cause was submitted to this court
without argument.
SpixcER, J., delivered the opinion of the court.
This case does not present the question whether, on a failure to prov*
the special contract, in consequence of a variance between the declaration
and the proof, the plaintiff may not resort to the general count ; but the i /
point is, whether a party who enters into a contract and performs part of ' (_^ ux ^ //
it, and then, without cause or the agreement or fault of the other party, but \
of his own mere volition, abandons the performance, can maintain an action
on au implied assiimpsit for the labor actually performed ; and it seems to
gae that the mere statement of the case shows the illegality and injustice
of the clainu
There are two principles, which are considered well established, pre-
cluding the plaintiff below from recovering : 1st, The contract is open be-
tween the parties, and still in force ; the defendant below has done no act
to dissolve or rescind it ; and it was decided in Raymond and others v.
Bernard,^ upon a review of all the cases, that if the special agreement was
still in force the plaintiff could not resort to the general counts. 2d. The
contract being entire, performance by the plaintiff below was a condition
precedent, and he was bound to show a full and substantial performance of
Ins pai-t of the contract.; this was so decided in M'Millan v. Vanderlip.^
In Cutter v. Powell,^ a sailor hii-ed for a voyage took a promissory note
from his employer for thirty guineas, provided he proceeded, continued,
and did his duty as second mate, from Kingston to Liverpool. Before the
arrival of the ship he died ; and the court held that wages could not be
recovered either on the contract or on a quantum meruit. The decision
was founded on common-law principles. Lord Kenyon said that where
the parties have come to an express contract none can be implied, has pre-
vailed so long as to be reduced to an axiom in the law. Ashhurst, J.,
very pertinently observed, this is a written contract, and speaks for itself ;
and as it is entire, and as the defendant's promise depends on a condition
precedent to be performed by the other party, the condition must be per-
formed before the other party is entitled to receive anything under it; that
the plaintifi' had no right to desert the agreement and recover on a
\quantum meruit ; forjvhei'ever there is an express contract the parFies must '
^ guided by it ; and one party cannot relinquish or abide by it as it may
jsuit his advantage.
1 12 Johns. 274. 2 12 Johns. 166. » 6 T. K. 320.
<^ e>i^ <( e^
148 STARK V. PAKKER. [CIIAP. II.
The case of Faxon v. Mansfield & Holbrook ^ is directly in point.
!Maustield agreed with Holbrook to erect and finish a barn by a fixed day,
when he was to receive 400 dollars in full compensation ; he performed
part of tlie work, and left it unfinished, without the consent and contrary
to the wishes of Holbrook. Parsons, C. J., in giving the opinion of the
court, said, on these fiicts, Mansfield could maintain no action, either on
his contract or on a qnantiim. meruit, against Holbrook ; his failure arising
not from inevitable accident, but his own neglect.
In Whiting v. Sullivan,^ Parsons, C. J., said, "As the law will not
imply a promise where there was an express promise, so the law will not
imply a promise of any person against his own express declaration."
In Linningdale v. Livingston ^ we recognized a position in Buller's
Nisi Prius, " that if there be a special agreement, and the work be done,
but not in pursuance of it, the plaintiff ma}' recover upon a quantum meruit;
for otherwise he would not be able to recover at all." This observation
has misled the court below. Correctly understood, it has no application
here. It supposes a performance of the contract, with variations from the
agreement, probably with the assent of both parties ; or it may mean an
extension of the time within which the agreement was to be performed,
with the like assent. The position never was intended to embrace the case
of a wilful dereliction of the contract when partly executed, by one of the
parties, without the assent and against the will of the other.*
' Judgmentreversed.
JOHN STARK V. THOMAS PARKER.
In the Supreme Judicial Court op Massachusetts, March Term, 1824.
{Reported in 2 Pickei-ing, 267.]
This was an action of indehitatus assumjmt brought to recover the sum
of $27.33, as a balance due for services rendered by the plaintiff on the
defendant's farm. Plea, the general issue.
At the trial in the Court of Common Pleas before Strong, J., the de-
fendant admitted that the plaintiff had performed the service set forth in
the declaration, and for the price therein stated, and that he, the defend-
ant, had paid him from time to time, before he left the defendant's service,
money amounting in the whole to about $36, and on account of his labor,
but the defendant proved that tlie plaintiff agreed to work for him_aj;ear^
for the sum of .$120, and that he, the defendant, agreed to pay him that
1 2 Mass. 147. 27 Mass. 109. ^ jo Johns. 36.
* It was held in Lantry v. Parks, 8 Cow. 63, that a plaintitr wlio without cause left
his employment, but who ofl'ered to return two days later, could not recover on »
quantum mcruU, the defendant refusing to receive hira hack. — Eo.
SECT. Ill]
STARK V. PARKER.
149
sum for his labor^ He also proved that the plaintiff vohintarily left his
service before the expiration of the year, and without any fault on the part
of the defendant, and against his consciit^
The judge thereupon instructed the_jur}% that the plaintiff would bo
entitled" to recover in this action a sum in pi-oporti^n to the time he had
served, deducting therefrom such sum, if any, as the jujry mjght think the
defendant had suffered by having his service deserted ; and if such sum
should exceed the sum claimed by the plaintiff, they might find a verdict
for the defendant.
The jury having returned a verdict for the plaintiff, the defendant filed
his exceptions to this instruction.
The court now called on the counsel for the plaintiff to begin, as he was
to contend for what seemed to be a new principle.
H. H. Fuller for the plaintiff".
B. Sumner for the defendant.
LiNCOLX, J., delivered the opinion of the court. This case comes before
us upon exceptions filed, pursuant to the statute, to the opinion in matter
of law of a judge of the Court of Common Pleas, before whom the action
was tried by a jury; and we are thus called upon to revise the judgment
I which was there rendered. The exceptions present a precise abstract ques-
j tion of law for consideration, namely, whether upon an entire contract for ,
! a term of service for a stipulated sum, and a part performance, without any |
I excuse for neglect of its completion, the party guilty of the neglect can
maintain an action against the party contracted with, for an apportion-
ment of the price, or a quantum meruit, for the services actually performed,
! Whatever may be the view properly taken of the contract between the
parties in the case at bar, the point upon which it was ruled in the court
below embraced but this single proposition. The direction to the jury was,
" that although proved to them that the plaintiff agreed to serve the de-
fendant for an agreed price for a year, and had voluntarily left his service
before the expiration of that time, and without the fault of the defend-
ant, and against his consent, still the plaintiff would be entitled to recover
of the defendant, in this action, a sum in proportion to the time he had
served, deducting therefrom such sum (if any) as the jury might think
the defendant had suffered by having his service deserted." If this direc-
tion was wrong, the judgment must be reversed, and the case sent to a new
trial, in which the diversity of construction given to the character and
terms of the contract by the counsel for the respective parties may be a
subject for distinct consideration.
It cannot but seom strange to those who are in any degree familiar with
the fundamental pi-inciples of law, that doubts should ever have been en-
tertained upon a question of this nature. Courts of justice are eminently
characterized by their obligation and office to enforce the performance
of contracts, and to withhold aid and countenance from those who seek,
G..
V
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150 STAEK V. PARKER. [CHAP. II.
through their instrumentality, impunity or excuse for the violation of them.
And it is no less repugnant to the well established rules of civil jurispru-
dence, than to the dictates of moral sense, that a party who deliberately
and uuderstandingly enters into an engagement and voluntarily breaks it,
should be permitted to make that very engagement the foundation of a
claim to compensation for services under it. The true ground of legal
demand in all cases of contracts between parties is, that the party claiming
has done all which on his part was to be performed by the terras of the
contract, to entitle him to enforce the obligation of the other party. It
is not sufficient that he has given to the party contracted with, a right of
action against him. The ancient doctrine on this subject, which was car-
ried to such an absurd extent as to allow an action for the stipulated re-
ward for a specified service, under a total neglect of performance, leaviug
the other party to his remedy for this neglect, by an action in turn, has
been long since wisely exploded, and the more reasonable rule before stated,
in late decisions is clearly established.
Upon examining the numerous authorities, which have been collected
with great industry by the counsel for the plaintiff, it will be found that a
distinction has been uniformly recognized in the construction of contracts,
between those in which the obligation of the parties is reciprocal and inde-
pendent, and those where the duty of the one may be^onsidered as a con-
dition precedent to that of the_othej\ In the latter cases, it is held, that
the performance of the precedent obligation can alone entitle the part^
bound to it, to his action. Indeed the argument of the counsel in the
present case has proceeded entirely upon this distinction, and upon the
petitio principii in its application. It is assumed by him, that the service
of the plaintiff for a year was not a condition precedent to his right to a
proportion of the stipulated compensation for that entire term of service,
but that upon a just interpretation of the contract, it is so far divisible, as
that consistently with the terms of it the plaintiff, having labored for any
portion of the time, may receive compensation pjro tanto. That this was
the intention of the parties is said to be manifest from the fact found in
the case, that the defendant from time to time did in fact make payments
expressly toward this service. We have only to observe upon this point in
the case, that however the parties may have intended between themselves,
we are to look to the construction given to the contract by the court
below. The jury were not instructed to inquire into the meaning of the
parties in making the contract. They were instructed, that if the contract
was entire, in reference alike to the service and the compensation, still by
law it was so divisible in the remedy, that the party might recover an
equitable consideration for his labor, although the engagement to perform
it had not l)een fulfilled. The contract itself was not discliargcd ; it was
considered as still subsisting, because the loss sustained by the defendant
in tlie breach of it was to be estimated in the assessment of damages to
SECT. III.] STAKK V. PARKER. 151
the plaintift'. A proposition apparently more objectionalilc in terms can
hardly be stated, and if supported at all it must rest upon the most ex-
plicit authority. The plaintiff sues in indebitatus asmmpsit as though there
was no special contract, and yet admits the existence of the contract to
affect the amount he shall recover. The defendant objects to the recovery
of the plaintiff the express contract which has been broken, and is himself
charged with damages for the breach of an implied one which he never
entered into. The rule that exjjressiim facit cessare tacitmn is as applicable
to this, as to every other case. If the contract is entire and executory, it
is to be declared upon. Where it is executed and a mere duty to pay the
stipulated compensation remains, a general count for the money is suffi-
cient. Numerous instances are indeed to be found in the books, of actions
being maintained where the specific contract has not been executed by the
party suing for compensation ; but in every case it will be seen that the
precise terms of the contract have been first held, either to have been ex-
pressly or impliedly waived, or the non-execution excused upon some known
and settled principle of law. Such was the case in Burn v. Miller,-' Thorp
v. White et al.,^ and in most of the cases cited by the plaintiff's counsel, in
which the decision was had upon considering the obligation of the party to
execute the contract, and not upon the construction of the contract itself.
Nothing can be more unreasonable than that a man, who deliberately and
wantonly violates an engagement, should be permitted to seek in a court
of justice an indemnity from the consequences of his voluntary act, and we
are satisfied that The law will not allow it.
That such a contract as is supposed in the exceptions before us expresses
a condition to be performed by the plaintiff precedent to his right of action
against the defendant, we cannot doubt. The plaintiff was to labor one
year for an agreed price. The money was to be paid in compensation for
the service, and not as a consideration for an engagement to serve. Other-
wise, as no precise time was fixed for payment, it might as well be recov-
ered before the commencement of the labor or during its progress, as at
any subsequent period. While the contract was executory and in the
course of execution and the plaintiff was in the employ of the defendant, it
would never have been thought an action could be maintained for the pre-
cise sum of compensation agreed upon for the year. The agreement of
the defendant was as entire on his part to pay, as that of the plaintiff jto_
serve. The latter was to serve one year, the former to pay $120. Upon
the construction contended for by the plaintiff's counsel, that the defend-
ant was to pay for any portion of the time in which the plaintiff should
laboi", in the same proportion to the whole sum which the time of labor
done should bear to the time agreed for, there is no rule by which the
defendant's liability can be determined. The plaintiff might as well claim
his wages by the month as by the year, by the week as by the month, and
1 4 Taunt. 744. 2 13 Johns. 53.
N
152 STARK V. PARKER. [CHAP. II.
by the day or hour as by either. The responsibility of the defendant would
thus be aflfected in a manner totally inconsistent with the terms of his
aj^reement to pay for a year's service in one certain and entire amount.
Besides, a construction to this effect is utterly repugnant to the general
understanding of the nature of such engagements. The usages of the
country and common opinion upon subjects of this description are espe-
cially to be regarded, and we are bound judicially to take notice of that
which no one is in fact ignorant. It may be safe to affirm, that in noj:ase
has a contract in the terms of the one under consideration^^^ beejj_construed
T)y practical men togiye a right to demand the agi'eed compensation before
the performance of the labor, and that the employer and empl^o}-^ alike
univerially so understandit] The rule of law is in entire accordance with
this sentiment, and it would be a flagrant violation of the first principles
of justice to hold it otherwise.
The performance of a year's service was, in this^se^^ a^condition prece-
dent to the obligation oLpaym£iiJk__ The plaintiff must perform the condi-
\ t ion, before he is entitled to recover anything under the contract, and he
J has no right to renounce his agreement and recover upon a quantum meruit.
The casesof M'Millan v. Vanderlip,^ Jennings v. Camp,^ and Eeab v. Moor^
are analogous in their circumstances to the case at bar, and are directly
and strongly in point. The decisions in the English cases express the same
doctrine: Waddington v. Oliver,* Ellis v. Hamlen;^ and the principle is
fully supported by all the elementary writers.
But it has been urged, that whatever may be the principle of the com-
mon law, and the decisions in the courts in New York on this subject, a
different rule of construction has been adopted in this Commonwealth, and
we are bound to believe that such has sometimes been the fact, from the
opinion of the learned and respectable judge who tried this cause, and from
instances of similar decisions cited at the bar, but not reported. The occa-
sion of so great a departure from ancient and well-established principles
cannot well be understood. It has received no sanction at any time from
the judgment of this court within the periods of our reports. As early as
the second volume of Massachusetts Reports, in the case of Faxon v. Mans-
field, the common-law doctrine in relation to dependent covenants was
recognized and applied, and in several subsequent cases it has been re-
peatedly and uiiifonnly adhered to. The law, indeed, is most reasonable
in itself. It denies only to a party an advantage fiom his own wrong. It
rc(inirc's him to act justly by a faithful performance of his own engage-
ments, before he exacts the fulfilment of dependent obligations on the part
of others. It will not admit of the monstrous absurdity, that a man may^
voluntarily and^ without cause 'violate his agreement, Tind" niTake^ the_ycry^
breach of that agreement the foundation of an action which he could not
1 12 Johns. 165. ^ 13 Johns. 94. » 19 Johns, 337.
* 2 New Kcp. CI. 6 3 Taunt. 52.
SECT. III.] IIAYWAED V. LEONARD. 153
maintain underji^. Any apprehension that tliis rnlc may be abused to the
mu-poses of oppression, by holding out an inducement to the employer, by
unkind treatment near the close of a term of service, to drive the laborer
from his engagement, to the sacrifice of his wages, is wholly groundless.
]tjs_onlyJrL-£aa£S-jdiere_iiifiL^^ and without cause on h
the part of the laborer, or fault or consent on the part of the employer, U K
that the principle applies. Wherever there is a reasonable_£zcuse, the law
allows'^a recovery. ToT say that this is not sufficient protection, that an
excuse~may in fact exist in countless secret and indescribable circum-
stances, which from their very nature are not susceptible of proof, or which,
if proved, the law does not recognize as adequate, is to require no less
than that the law should presume what can never legally be established,
or should admit that as competent which by positive rules is held to be
wholly immaterial. We think well established principles are not thus to
be shaken, and that in this Commonwealth more especially, where the im-
portant business of husbandry leads to multiplied engagements of precisely
this description, it should least of all be questioned, that the laborer is
worthy of his hire, only upon the performance of his contract, and as the
reward of fidelity.
The judgment of the Court of Common Pleas is reversed, and a new trial
granted at the bar of this court.
NATHAN HAYWARD v. AEZA LEONARD.
In the Supreme Judicial Court of Massachusetts, October Term, 1828.
[Reported in 7 Pickering, 181.]
This was an action of assumpsit. The first count was on a conditional
promissory note, to be void if the plaintiff failed to perform an agreement
of the same date with the note, by which the plaintiff", for the sum named
io the note, contracted to erect for the defendant on his land, by a certain
day, a house of a certain size, and to be built in a specified manner ; this
count averred that the house was built pursuant to the contract. Another
count was for work done and materials found, and upon a quantum meruit
for building a house on the defendant's land at his request. The declara-
tion also contained the common money counts, and counts upon two other
promissory notes.
On the trial before Morton, J., on the general issue, it appeared that the
plaintifl[" erected a house upon the defendant's land, within the time and of
the dimensions stated in the contract, but that in workmanship and in
materials it was not according to the terms of the agreement.
It appeared that the defendant, who lived near the place where the
house was erected, after the date of the contract had requested the plain-
154 II AY WARD V. LEONARD. [CHAP. II.
tiff to begin the house which he had agreed to build ; that during the
progress of the work the defendant visited the place almost every day, and
sometimes oftener, and had an opportunity to see all the materials as they
were used, and all the work as it was done ; that he objected to parts of
the work as it was done, and especially to the clapboards, as not being ac-
cording to the contract; that after this he continued to give directions
about the house, and particularly directed some variations from the con-
tract. With much of the work, he from time to time expressed himself to
be satisfied, but almost always declaring at the same time that he was un-
acquainted with, and no judge of such work. Soon after the house waa
done the defendant refused to accept it. But there was no evidence tend-
ing to show that the defendant, in any way, informed the plaintiff, or that
the plaintiff had any knowledge, that the defendant did not intend to
accept the house, till after it was finished.
The plaintiff's counsel admitted that he had not fulfilled his contract.
But they offered evidence of the value of the house when completed ; and
contended, that the defendant having become the owner of the house, and
having permitted and encouraged the plaintiff to proceed in finishing the
house after he (the defendant) had discovered tiiat it was not according to
contract, the plaintiff might waive the first count, and recover upon the
others the value of the house. This evidence was objected to by the de-
fendant's counsel, but admitted.
The defendant afterwards gave in evidence three receipts for money paid
by him to the plaintiff, one being towards the payment of the conditional
note, before the commencement of the house ; the others, on account of tlie
two other notes, which they exceeded by twenty-three dollars.
In order to reserve the question of law for the whole court, the judge
instructed the jury to find a verdict for the plaintiff for the sum which in
tlieir opinion the house was worth to the defendant when it was completed,
deducting the twenty-three dollars and the other payments made by the
defendant.
The jury returned a verdict for 644 dollars 7C cents.
To the above orders and instructions the defendant excepted. If they
were right, judgment was to be entered according to the verdict ; if wrong,
a new trial was to be granted, and such other orders made as the court
should think right.
Baylies for the defendant.
Eddij and Beal for the plaintiff.
The opinion of the court was afterward drawn up by
Parker, C. J. In this case there is a great array of authorities on both
sides, from which it sippears very clearly that different judges and different
courts have held different doctrines, and sometimes the same court at differ-
ent times. The point in controversy seems to be this ; whether when a
party has entered into a special contract to perform work for another, and
SECT. III.] HAYWARD V. LEONARD. 155
to furnish materials, and the work is done and the materials furnished, but
not in the manner stipulated for in the contract, so that he caimot recover
the price agreed by an action on that contract, yet nevertheless the work and
materials are of some value and benefit to the other contracting party, he
may recover on a quantvm meruit for the work and labor done, and on a quan-
tum valebant for the materials. We think the weight of modern authority is
in favor of the action, and that upon the whole it is conformable to justice,
that the party who has the possession and enjoyment of the materials and
labor of another, shall be held to pay for them, so as in all events he shall
lose nothing by the breach of contract. If the materials are of a nature to
be removed, and liberty is granted to remove them, and notice to that
effect is given, it may be otherwise. But take the case of a house or other
building fixed to the soil, not built strictly according to contract, but still
valuable and capable of being advantageously used, or profitably rented, —
there having been no prohibition to proceed in the work after a deviation
from the contract has taken place, — no absolute rejection of the building,
with notice to remove it from the ground ; it would be a hard case indeed
if the builder could recover nothing.
And yet he certainly ought not to gain by his fault in violating his con-
tract, as he may, if he can recover the actual value ; for he may have con-
tracted to build at an under price, or the value of such property may have
risen since the contract was entered into. The owner is entitled to the
benefit of the contract, and therefore he should be held to pay in damages
only so much as will make the price good, deducting the loss or damage
occasioned by the variation from the contract. As in the case of Smith
against the proprietors of a meeting-house in Lowell, determined at March
term, 1829, in Suffolk.
The cases cited from our own books, which are supposed to militate
against this doctrine, are not of that character.
In the case of Faxon v. Mansfield, and Holbrook his Trustee,^ it was decided
that Holbrook owed Mansfield nothing, because Mansfield, having contracted
to build a barn, voluntarily left it unfinished, and the sum remaining un-
paid was not more than sufficient to pay for the labor necessary to finish it.
In the case of Taft v. The Inhabitants of Montague,^ the bridge was so
built as to be useless, and there was no evidence that the materials came
to the hands of the defendants.
In the case of Stark v. Parker,^ the plaintiff was not allowed to recover
on a quantum meruit, because he had stipulated to labor for a year, and
before the expiration of the time, voluntarily and without fault of Parker,
left his service.
These are very different from cases like the present, where the contract
is performed, but, without intention, some of the particulars of the contract
are deviated from.
1 2 Mass. 147. 2 14 Mass. 282. ^ 2 Tick. 267.
156 HAYWARD V. LEONARD. [CIIAP. II.
It is laid down as a general position in Biiller's Nisi Prius, 139, that if a
man declare upon a special contract and upon a qucuitimi meruit, and prove
the work done but not according to the contract, he may recover on the
qxiantum meruit, for otherwise he would not be able to recover at all. Mr.
Dane ^ disputes this doctrine, and thinks it cannot be law unless the im-
perfect work be accepted. Buller makes no such qualification ; and yet it
would seem to be reasonable that if the thing contracted for us was a chat-
tel, the party for whom it was made ought not to be held to take it and
pay for it, unless it is made according to the contract, as a ship, a carriage,
etc. ; and this principle seems to be of common use in regard to articles of
common dealing, such as wearing apparel, tools and implements of trade,
ornamental articles, furniture, etc. There seems to be, however, ground
for distinction in the case of buildings erected upon the soil of another, for
in such case the owner of the land necessarily becomes owner of the build-
ing. The builder has no right to take down the building, or remove the
materials ; and though the owner may at first refuse to occupy, he or his
heirs or assignees will eventually enjoy the property. And in such cases
the doctrine of Buller is certainly not unreasonable. The case put by
Buller to illustrate his position is that of a house built on contract, but,
not according to it.
Mr. Dane's reasoning is very strong in the place above cited, and sub-
sequently in Vol. 2, p. 45, to show that the position of Buller, in an un-
limited sense, cannot be law ; and some of the cases he puts are decisive in
themselves. As if a man who had contracted to build a brick house, had
built a wooden one, or instead of a house, the subject of the contract, had
built a barn. In these cases, if such should ever happen, the plaintiflf
could recover nothing without showing an assent or acceptance, express or
implied, by the party with whom he contracted. Indeed such gross vio-
lations of contract could not happen without fraud, or such gross folly as
would be equal to fraud in its consequences. When we speak of the law
allowing the party to recover on a quantum meruit or quantum valebant^
where there is a special contract, we mean to confine ourselves to cases in
which there is an honest intention to go by the contract, and a substantive
execution of it, but some comparatively slight deviations as to some particu-
lars provided for. Cases of fraud or gross negligence may be exceptions.
In looking at the evidence reported in this case, we see strong grounds
for an inference that the defendant waived all exceptions to tlie manner in
which the work was done. He seems to have known of the deviations from
the contract; directed some of them himself; suffered the plaintiff to go
on with his work ; made no objection when it was finished, nor until he
was called on to pay. But the case was not put to the jury on the groimd
of acceptance or waiver, but merely on the question, whether the house was
built pursuant to the contract or not ; and if not, the jury were directed to
1 Vol. I. p. 223.
SECT. III.] BRITTON V. TURNER. 157
conskler whiit the house was worth to the defendant, and to f,'ive that sum
in damages. We think this is not the I'ight rule of damages ; for the house
mi'dit have been worth the wdiolc stipuhited price, notwithstanding the
departures from the contract. They should have been instructed to deduct
so much from the contract price as the hoiise was worth less on account of
these departures.
And upon this ground only a new trial is granted.
BRITTON V. TURNER.
In the Superior Court of Judicature of New Hampshire, July
Term, 1834.
[^Reported in 6 New Hampshire Reports, 481.]
Assumpsit for work and labor performed by the plaintiff, in the service
of the defendant, from March 9, 1831, to December 27, 1831.
The declaration contained the common counts, and among them a count
in quantum 7neriiit for the labor, averring it to be worth $100.
At the trial in the C. C. Pleas, the plaintiff proved the performance of
the labor as set forth in the declaration.
The defence was that it was performed under a special contract, — that
the plaintiff agreed to work one year, from some time in March, 1831, to
March, 1832, and that the defendant was to pay him for said year's labor
the sum of |120 ; and the defendant offered evidence tending to show that
such was the contract under which the work was done.
Evidence was also offered to show that the plaintiff left the defendant's
service without his consent, and it was contended by the defendant that the
plaintiff had no good cause for not continuing in his employment.
There was no evidence offered of any damage arising from the plaintiff's
departure, farther than was to be inferred from his non-fulfilment of the
entire contract.
The court instructed the jury^ that if they were satisfied from the evi-
dence that the labor was performed, under a contract to labor a year, for
the sum of $120, and if they were satisfied that the plaintiff labored only
the time specified in the declaration, and then left the defendant's service,
against his consent and without any good cause, yet the plaintiff was en-
titled to recover, under his quantum meruit count, as much as the labor he
performed was reasonably worth ; and under this direction the jury gave a
verdict for the plaintiff for the sum of $9.5.
The defendant excepted to the instructions thus given to the jury.
Handerson for the defendant.
Wilso7i for the plaintiff.
158 BRITTON V. TUBNEE. [CHAP. II.
Parker, J., delivered the opinion of the court.
It may be assumed, that the labor performed by the plaintiff, and for
which he seeks to recover a compensation in this action, was commenced
under a special contract to labor for the defendant the term of one year,
for the sum of SI 20, and that the plaintiff has labored but a portion of
that time, and has voluntarily failed to complete the entire contract.
It is clear, then, that he is not entitled to recover upon the contract it-
self, because the service, which was to entitle him to the sum agreed upon,
has never been performed.
But the question arises, can the plaintiff, under these circumstances
recover a reasonable sum for the service he has actually performed, under
the count in quantum meruit.
Upon this, and questions of a similar nature, the decisions to be found
in the books are not easily reconciled.
It has been held, upon contracts of this kind for labor to be peiformed at
a specified price, that the party who voluntarily fails to fulfil the contract
by performing the whole labor contracted for, is not entitled to recover any-
thing for the labor actually performed, however much he may have done
towards the performance ; and this has been considered the settled rule of
law upon this subject.
Stark V. Parker ; ^ Faxon v. Mansfield ; ^ IMc^Millen v. Yanderlip ; ^ Jen-
nings V. Camp;* Reab v. Moor;^ Lantry v. Parks; ^ Sinclair v. Bowles;'
Spain V. Arnott.*
That such rule in its operation may be very unequal, not to say unjust,
is apparent.
A party who contracts to perform certain specified labor, and who breaks
his contract in the first instance, without any attempt to perform it, can
only be made liable to pay the damages which the other party has sustained
by reason of such non-performance, which in many instances may be trifling ;
whereas a party who in good fiiith has entered upon the performance of
his contract, and nearly completed it, and then aliaudoned the furtiicr per-
formance — although the other party has had the full benefit of all that has
been done, and has perhaps sustained no actual damage — is in fact sub-
jected to a loss of all which has been performed, in the nature of damages
for the non-fulfilment of the remainder, upon the technical rule, that the
contract must be fully performed in order to a recovery of any part of the
compensation.
By the operation of this rule, then, the party who attempts performance
may be placed in a much worse situation than he who wholly disregards
his contract, and the other party may receive much more, by the breach
of the contract, than the injury which he has sustained by such breach, and
1 2 Pick. 2G7. ^ 2 Mass. 147. ^ 12 .Tobns. 165.
4 13 Johns. 94. * 19 Johns. 337. "^ 8 Cow. 63.
7 9 B. & < '. 92. » 2 SUrk. N. P. 256.
SECT. III.] BRITTON V. TURNER. 159
more than he could be entitled to were he seeking to recover damages by
an action.
The case before us presents an illustration. Had the plaintiff in this
case never entered upon the performance of his contract, the damage could
not probably have been greater than some small expense and trouble in-
curred in procuring another to do the labor which he had contracted to
i)erform. But having entered upon the performance, and labored nine and
a half months, the value of which labor to the defendant as found by the
jury is $95, if the defendant can succeed in this defence he in fact receives
nearly five sixths of the value of a whole year's labor, by reason of the
breach of contract by the plaintiff, a sum not only utterly disproportionate
to any probable, not to say possible, damage which could have resulted from
the neglect of the plaintiff to continue the remaining two and a half months,
but altogether beyond any damage which could have been recovered by
the defendant, had the plaintiff done nothing towards the fulfilment of his
contract.
Another illustration is furnished in Lantry v. Parks.^ There the de-
fendant hired the plaintiff for a year, at $10 per month. The plaintiff
worked ten and a half months, and then left, saying he would work no more
for him. This was on Saturday ; on Monday the plaintiff returned, and
offered to resume his work, but the defendant said he would employ him
no longer. The court held that the refusal of the plaintiff on Saturday
was a violation of his contract, and that he could recover nothing for the
labor performed.
There are other cases, however, in which principles have been adopted
leading to a different result.
It is said, that where a party contracts to perform certain work, and to
furnish materials, as, for instance, to build a house, and the work is done,
but with some variations from the mode prescribed by the contract, yet if
the other party has the benefit of the labor and materials he should be
bound to pay so much as they are reasonably worth. 2 Stark. Ev. 97, 98 ;
Hay ward v. Leonard j'^ Smith v. First Congregational Meeting House in Low-
ell ;8 Jewell V. Schroeppel;* Hayden v. Madison ; ^ Bull. N. P. 139 ; 4 Bos.
& PuL 355 ; 10 Johns. 36 ; 13 Johns. 97 ; 7 East, 479.
A diffei"ent doctrine seems to have been holden in Ellis v . Hamlen,'' and
it is apparent, in such cases, that if the house has not been built in the
manner specified in the contract, the work has not been done. The party
has no more performed what he contracted to perform, than he who has
contracted to labor for a certaip period, and failed to complete the time.
It is in truth virtually conceded in such cases that the work has not
been done, for if it had been, the party performing it would be entitled to
recover upon the contract itself, which it is held he cannot do.
1 8 Cow. 83. 2 7 Pick. 181. 3 s Pick. 178.
* 4 Cow. 564. 6 7 Green, 78, « 3 Taunt. 52.
160 BEITTON V. TUKNER. [CIIAP. II.
Those cases are not to be distinguished, in principle, from the present,
unless it be in the circumstance that where the party has contracted to
furnish materials, and do certain labor, as to build a house in a specified
manner, if it is not done according to the contract, the party for whom it
is built may refuse to receive it, — elect to take no benefit from what haa
been performed ; and therefore if he does receive, he shall be bound to
pay the value ; whereas in a contract for labor, merely, from day to day,
the party is continually receiving the benefit of the contract under an ex-
pectation that it will be fulfilled, and cannot, upon the breach of it, have an
election to refuse to receive what has been done, and thus discharge him-
self from payment.
But we think this difference in the natm-e of the contracts does not
justify the application of a different rule in relation to them.
The party who contracts for labor merely, for a certain period, does so
with full knowledge that he must, from the nature of the case, be accept-
ing part performance from day to day, if the other party commences the
performance, and with knowledge also that the other may eventually fail
of completing the entire terra.
If under such circumstances he actually receives a benefit from the
labor performed, over and above the damage occasioned by the failure to
complete, there is as much reason why he should pay the reasonable worth
of what has thus been done for his benefit, as there is when he enters and
occupies the house which has been built for him, but not according to the
stipulations of the contract, and which he perhaps enters, not because he
is satisfied with what has been done, but because circumstances compel
him to accept it such as it is, that he should pay for the value of the
house.
Where goods are sold upon a special contract as to their nature, quality,
and price, and have been used before their inferiority has been discovered,
or other circumstances have occurred whicli have rendered it impracticable
or inconvenient for the vendee to rescind the contract in toto, it seems to
have been the practice formerly to allow the vendor to recover the stipu-
lated price, and the vendee recovered by a cross action damages for the
breach of the contract. " But according to the later and more convenient
practice, the vendee in such case is allowed, in an action for the price, to
give evidence of the inferiority of the goods, in reduction of damages, and
the plaintiff who has broken his contract is not entitled to recover more
than the value of the benefits which the defendant has actually derived from
the goods ; and where the latter has derived no benefit, the plaintiff can-
not recover at all." 2 Stark. Ev. G40, G42 ; Okell v. Smith.^
So where a person contracts for the purchase of a (juantity of merchan-
dise, at a certain price, and receives a delivery of part only, and he keeps
that part, without any offer of a return, it has been held that he must pay
1 1 Stark. N. 1*. 107.
SECT. III.] BRITTON V. TURNER. 161
the viilue of it. Shipton v. Cassou;^ Baker v. Sutton;^ 1 Camp. 55,
note.
A diil'ereiit opinion seems to have been entertained : Waddiugton v. Oliver,^
and a different decision was had. Walker v. Dixon.*
There is a close analogy between all these classes of cases, in which such
diverse decisions have been made.
If the party who has contracted to receive merchandise, takes a part and
uses it, in expectation that the whole will be delivered, which is never
done, there seems to be no greater reason that he should pay for what he
has received, than there is that the party who has received labor in part,
inider similar circumstances, should pay the value of what has been done
for his benefit.
It is said that in those cases where the plaintiff has been permitted to
recover there was an acceptance of what had been done. The answer is,
tliat where the contract is to labor from day to day, for a certain period,
the party for whom the labor is done in truth stipulates to receive it from
day to day, as it is performed, and although the other may not eventually
do all he has contracted to do, there has been, necessarily, an acceptance
of what has been done in pursuance of the contract, and the party must
have understood when he made the contract that there was to be such
acceptance.
If then the party stipulates in the outset to receive part performance
from time to time, with a knowledge that the whole may not be completed,
we sec no reason why he should not equally be holden to pay for. the
amount of value received, as where he afterwards takes the benefit of
what has been done, with a knowledge that the whole which was contracted
for has not been performed.
In neither case has the contract been pei-formed. In neither can an
action be sustained on- the original contract.
In both the party has assented to receive what is done. The only differ-
ence is, that in the one case the assent is prior, with a knowledge that all
may not be performed, in the other it is subsequent, with a knowledge that
the whole has not been accomplished.
We have no hesitation in holding that the same rule should be applied
to both classes of cases, especially as the operation of the rule will be to
make the party who has failed to fulfil his contract, liable to such amount
of damages as the other party has sustained, instead of subjecting him to
an entire loss for a partial failure, and thus making the amount received in
many cases wholly disproportionate to the injury. I Saund. 320, c; 2
Stark. Ev. 643.
It is as " hard upon the plaintiff to preclude him from recovering at all,
because he has failed as to part of his entire undertaking," where his con-
1 .5 B. & C. 2 Com. Dig. Action F. 3 5 b. & P. 61.
* 2 Stark. N. P. 281.
VOL. II. — 11
162 BRITTON V. TURNER. [CHAP. II.
tract is to labor for a certain period, as it can be in any other description
of contract, provided the defendant has received a benefit and value from
the labor actually performed.
"We hold then, that where a party undertakes to pay upon a special con-
tract for the performance of labor, or the furnishing of materials, he is not
to be charged upon such special agreement until the money is earned ac-
cording to the terms of it, and where the parties have made an express con-
tract the law will not imply and raise a contract ditierent from that which
the parties have entered into, except upon some farther transaction between
the parties.
In case of a failure to perform such special contract, by the default of
the party contracting to do the service, if the money is not due by the terms
of the special agreement he is not entitled to recover for his labor, or for
the materials furnished, unless the other party receives what has been done,
or furnished, and upon the whole case derives a benefit from it. Taft v.
Montague ; ^ 2 Stark. Ev. 644.
But if, where a contract is made of such a character, a party actually re-
ceives labor, or materials, and thereby derives a benefit and advantage,
over and above the damage which has resulted from the breach of the con-
tract by the other party, the labor actually done, and the value received
furnish a new consideration, and the law thereupon raises a promise to pay
to the extent of the reasonable worth of such excess. This may be con-
sidered as making a new case, one not within the original agreement, and
the party is entitled to " recover on his new case, for the work done, not as
agreed, but yet accepted by the defendant." ^
If on such failure to perform the whole, the nature of the contract he
such that the employer can reject what has been done, and refuse to re-
ceive any benefit from the part performance, he is entitled so to do, and in
such case is not liable to be charged, unless he has before assented to and
accepted of what has been done, however much the other party may have
done towards the performance. He has in such case received nothing, and
having contracted to receive nothing but the entire matter contracted for,
he is not bound to pay, because his express promise was only to pay on re-
ceiving the whole, and having actually received nothing the law cannot
and ought not to raise an implied promise to pay. But where the party
receives value, — takes and uses the materials, or has advantage from the
labor, he is liaV)le to pay the reasonable worth of what he has received.
Famsworth v. Garrard." And the rule is the same whether it was received
and accepted by the assent of the party prior to the breach, under a con-
tract by which, from its nature, he was to receive labor from time to time
until the completion of the whole contract ; or whether it was received and
accepted by an assent subsequent to the performance of all which was in
fact done. If he received it under such circumstances as precluded him
1 14 Mass. 282. * 1 Dane's Abr. 224. « 1 Camp. 38.
EOT. Ill] BRITTON V. TURNER. 163
•om rejecting it afterwards, tliat does not alter the case, — it has still been
eccived by his assent.
In fact we think the technical reasoning, that the performance of the
^hole labor is a condition precedent, and the riglit to recover anything
cpendcnt upon it ; that the contract being entire there can be no ap-
ortionment ; and that there being an express contract no other can be
nplied, even upon the subsequent performance of service, — is not prop-
rly applicable to this species of contract, where a beneficial service has
sen actually performed ; for we have abundant reason to believe, that the
eneral understanding of the community is that the hired laborer shall be
ntitled to compensation for the service actually performed, though he
.0 not continue the entire term contracted for, and such contracts must
le presumed to be made with reference to that imderstanding, unless an
xpress stipulation shows the contrary.
Where a beneficial service has been performed and received, therefore,
inder contracts of this kind, the mutual agreements cannot be considered
s going to the whole of the consideration, so as to make them mutual
onditions, the one precedent to the other, without a specific proviso to
hat effect. Boone v. Eyre ; ^ Campbell v. Jones ; ^ Ritchie v. Atkinson ; ^
3urn v. Miller.*
It is easy, if parties so choose, to provide by an express agreement that
lothiug shall be earned, if the laborer leaves his employer without having
)crformed the whole service contemplated, and then there Can be no pre-
ence for a recovery if he voluntarily deserts the service before the expira-
ion of the time.
The amount, however, for which the employer ought to be charged,
vhere the Laborer abandons his contract, is only the reasonable worth, or
;he amount of advantage he receives upon the whole transaction : Wad-
eigh V. Sutton ; ^ and, in estimating the value of the labor, the contract
mce for the service cannot be exceeded. 7 Green. 78 ; Dubois v. Delaware
k Hudson Canal Company ; ^ Koon v. Greenman.''
If a person makes a contract fairly he is entitled to have it fully
aerformed, and if this is not done he is entitled to damages. He may
naintain a suit to recover the amount of damage sustained by the non-
performance.
The benefit and advantage which the party takes by the labor, therefore,
IS the amount of value which he receives, if any, after deducting the
imount of damage ; and if he elects to put this in defence he is entitled
50 to do, and the implied promise which the law will raise in such case, is
to pay such amount of the stipulated price for the whole labor as remains,
after deducting what it would cost to procure a completion of the residue
1 1 H. Bl. 273, n. 2 g p. & E. 570. 3 10 East, 295.
* 4 Taunt. 745. 5 6 N. H. 15. 6 4 Weud. 285.
■^ 7 Wend. 121.
164 BRITTON V. TURNER. [CIIAP. II.
of the service, and also any damage which has been sustained by reason of
the non-fulfilment of the contract.
If in such case it be found that the damages are equal to, or greater than
the amount of the labor performed, so that the employer, having a right to
the full performance of the contract, has not upon the whole case received
a beneficial service, the plaintiff cannot recover.
This rule, by binding the employer to pay the value of the service he
actually receives, and the laborer to answer in damages where he does not
complete the entire contract, will leave no temptation to the former to
drive the laborer from his service, near the close of his term, by ill treat-
ment, in order to escape from payment ; nor to the latter to desert his
service before the stipulated time, without a sufficient reason ; and it will
in most instances settle the whole controversy in one action, and prevent
a multiplicity of suits and cross actions.
There may be instances, however, where the damage occasioned is much
greater than the value of the labor performed, and if the party elects to
permit himself to be charged for the value of the labor, without interposing
the damages in defence, he is entitled to do so, and may have an action to
recover his damages for the non-performance, whatever they may be.
Crowninshield v. Kobinson.-'
And he may commence such action at any time after the contract is broken,
notwithstanding no suit has been instituted against him ; but if he elects
to have the damages considered in the action against him, he must be un-
derstood as conceding that they are not to be extended beyond the amount
of what he has received, and he cannot afterwards sustain an action for
farther damages.^
Applying the principles thus laid down to this case, the plaintiff is
entitled to judgment on the verdict.
The defendant sets up a mere breach of the contract in defence of the
action, but this cannot avail him. He does not appear to have offered
evidence to show that he was damnified by such breach, or to have asked
that a deduction should be made upon that account. The direction to the
jury was therefore correct, that the plaintiff was entitled to recover as
much as the labor performed was reasonably worth, and the jury appear to
have allowed a pro rata compensation, for the time which the plaintiff
labored in the defendant's service.
As the defendant has not claimed or had any adjustment of damages, for
the breach of the contract, in this action, if he has actually sustained
damage he is still entitled to a suit to recover the amount.
Whether it is not necessary, in cases of this kind, that notice should be
given to the employer that the contract is abandoned, with an offer of
adjustment and demand of payment ; and whether the laborer must not
wait until the time when the money would have been due according to the
1 1 Masou. a Mondel v. Steele, 8 M. & W. 858, contra. — Ed.
SECT. III.] CHAMPLIN V. ROWLEY. 165
contract, before commencing an action,^ are questions not necessary to be
settled in this case, no objections of that nature having been taken here.
Judgment on tlie verdict.'
CHAMPLIN V. ROWLEY.
Lv THE Court for the Correction op Errors of New York, Decem-
ber, 1837.
[Reported in 18 Wendell, 187.]
Error from the Supreme Court. Champlin sued Rowley in an action of
assumpsit, and declared on the common counts for goods and chattels and
hay sold and delivered. On the trial of the cause it appeared that on
T?tTi September,' 1831,~1i contract was entered into by the parties, whereby
the plaintiff agreed to deliver to the defendant, at a certain dock in Rhine-
beck in Dutchess county, 100 tons of hay, and as much more beyond that
quantity as he had to spare, to be delivered pressed, between the day of
the date of the contract and the last mu of the sloops navigating the river ;
ToTwhich the defendant agfeedTo~pay at the rate of three stiilhngs and
sixpence per cwt., — $100 to be paid in advance, and the residue when the
whole quantity should be delivered. The defendant paidlhellOO advance.
The^pTamtrff commenced the delivery of hay on 25th October, 1831, and
delivered more or less every week until the river closed on the 9th Decem-
ber, when the whole quantity of hay delivered amounted only to 52 tons
and 900 wt. The ordinary time of the closing of the river at Rhinebeck
is from 20th to 30th December. The defendant, in pursuance of a notice
attached to his plea, offered to prove,~tEarafter the making of the contract
the price of hay rose "in the markeTto eight shillings, and from that to ten
shillings per cwt, and that had the plaintiff performed his contract, the net
profits which the ^defendant wouTJTiave made upon the hay undelivered
woTdd have exceeded the^sura claimed by the plaintiff^for the quantity
delivered; and~ire""further~offered to ~ipro^"thairhe^ hired a storehouse in
the city of New York for the reception of theji^^at a rent of $90, which
he had been obliged to pay, and in consequence of the non-performance of
1 5 B & P. 61.
2 Whatever miglit be the views of the court as at present organized, in a case like
that of Britton v. Turner, and however much, even, some may think it is to be regretted
that the rule of law there laid down was allowed to obtain, still, considering that it has
remained as the law of the State for nearly twenty years, and has never been overruled,
and that while it has the strong feature of its direct tendency to the wilful and careless
violation of express contracts fairly entered into, to lead to its condemnation and disap-
proval, it has also some features of advantage and strong justice to recommend it. We,
on the whole, are not inclined to disturb the doctrines of that case, but to adopt and
apply them. Woods, C. J., in Davis v. Barrington, 30 N. H. 517, 529. —Ed.
16G
CHAMPLIN V. ROWLEY.
[CIIAP. II.
r
I
'Vi^li-
c
^»^»»<> ^v*»*»2^
'i £^'.
I
the contract by the plaintiff, the storehouse had been unoccupied and of no
use to him : which evidence was objected to by the plaintift' and rejected
by the judge. The defendant insisted that the plaintiff was not entitled to
recover, L because he had failed in performance of the contract on his part ;
and 2. that at all events he could not recover under the common counts.
The judge ruled that the~3efendant having received a partial benefit, the
action lay without show'ing a full performance on the part of the plaintiff,
and that a recovery might be had under the common counts ; and he ac-
cordingly directed the jury that the plaintiff was entitled to their verdict
for the value of the hay delivered at the contract price, deducting the $100
paid, with the interest of the balance from 9th December, when the river
closed. The jury found a verdict for the plaintiff for $386.64:. The de-
fendant made a case and applied to the Supremo Court for a new trials
which was granted. See opinion of court, 13 Wendell, 260. On the appli-
cation of the plaintiff", to enable him to sue out a writ of error, the rule
granting a new trial was vacated and judgment was entered for the defend-
ant. The case was then, by agreement of the parties, turned into a special
verdict, by which the jury were represented to find the contract as above
stated, the payment of the advance of $100, the delivery of the 52 tons
and 900 wt., and the closing of the navigation on the 9th December. The
jury were also represented to find "that after the making of the contract
and in the course of the ensuing winter the price of hay rose in the market
to eight shillings, and from that sum to ten shillings per cwt. ;" and the
hiring of the store in New York, and the consequent loss to the defendant,
were also set forth. A record being made up incorporating the special
verdict, and rendering judgment thereon for the defendant, the plain tiflF
sued out a writ of error, removing the record into this court.
iS'. Stevens for the plaintifl' in error.
tl. L. Wendell for the defendant in error.
After advisement, the following opinion was delivered
By the Chancellor. This is an action to recover compensation for the
value of hay delivered in part performance of a contract to deliver a larger
quantity, and to be paid for when the whole was delivered. From the facts
stated in the special verdict there is no doubt that the non-performance of
the contract in full has never been waived by any act of the defendant;
and it is also very probable from the facts stated in the special verdict that
he must have sustained considerable damage by the non-delivery of the
residue of the hay according to the contract. It is not found by the ver-
dict that the plaintiff offered to deliver the residue of the hay after the time
specified in the agreement, or that he ever requested the defendant to
return the hay which had been actually delivered. Neither was that neces-
sary, if some of the recent cases in England on this subject can be consid-
ered as law in this State. In Oxendale v. Witherall,* it was held that the
1 9 B. & C. 386.
SECT. III.] CHAMPLIN V. ROWLEY. 167
party who had failed to perform his contract could recover against the other,
who had not been in fault, for the wheat delivered in part performance of
his agreement, unless the defendant had returned the wheat delivered.
This decision, carried to the extent it was in that case, cannot be considered
as good law anywhere ; for it is not founded upon any equitable principle,
and is contrary not only to justice, but also to common sense. The only
way I can account for it is upon the supposition that the focts of the case
are not properly stated in the report ; or that the injustice of requiring the (;^£zJ^
party who was not in fault to be at the expense of returning to the other ^^ ^ . ,
party bulky articles of this description, or even of seeking him for the pur- ^ ^y
pose of making an offer to return them to protect himself from an action, "'
was not presented to the consideration of the court. Again : in that case,
as in this, the contract was not to deliver the whole quantity at one time,
but to deliver the whole within a certain specified period. Neither was
there any agreement, either express or implied, that the defendant should
not be permitted to sell or use the several parcels, delivered from time to
time, until the latest period for completing the contract had actually ex-
pired. Here the contract was to deliver a large quantity of pressed hay
upon the dock at Rhinebeck, between the twelfth of September and the
closing of the navigation on the river ; from which it is fairly to be inferred
that it was understood by both parties that it was to be transported from
thence to the market where such an article as pressed hay was used, by
water, and while the river remained open. The plaintiff, therefore, was not
bound to take all the hay to the dock at once ; but the defendant, by his
contract, was bound to receive it in reasonable parcels, as it was brought to
the place appointed for the delivery within the time specified. Lewis v.
Weldon.'^ Neither is it the sensible construction of this agreement that the
defendant was to keep the fifty-two tons of hay on hand at Rhinebeck dock,
until after the navigation closed, for the purpose of seeing whethei^the
other party intended to perform his agreement as to the delivery of the res-
idue. The idea of founding an action upon the neglect of the defendant to
return the hay delivered in such a case, therefore, is not founded in good
sense. And"! confess i can see no ground for the di^inction which has
"Been established by the English cases, since the Revolution, between the
part performance of a contract for labor and a partial performance of a
contract for the delivery of specific articles under such an agreement as
this. If the fifty-two tons of hay delivered under this contract were in New
York at the time the navigation closed, as it may fairly be presumed they
were, if the defendant had paid a reasonable attention to his own interest,
or if the wheat in the case of Oxendale v. Witherall had been sold or con-
verted into flour before the failure of the plaintiff to perform the residue
of his contract, it would be about as unreasonable to require the defendant
to return the hay to the plaintiff as it' would be to return the fruits of
1 3 Rand. 71.
168 CHAMPLIN V. ROWLEY. [CHAP. II.
the labor of a man who had neglected to perform his contract for labor in
full.
If any action can be sustained, in such a case, by the party who has failed
to perform his contract, without any fault or acquiescence or waiver of a
strict performance by the party who has received the benefit of the part
performance, it must be upon the equitable principle recognized by the
Supreme Court of New Hampshire in iJritton v. Turner.^ The principle
adopted in the case referred to is, that it is unconscientious and inequitable
for a party who has been actually benefited by the part performance of_a^
contract, above or beyond the damages he has sustained by the non-per-
formance of the residue^)? the agreement, to retain this excess of benefit
without making the other party a compensation therefor; and that this
excess of benefit arising from the part performance of the other party, forms
a new consideration upon which the law implies a promise to pay for the
same, and whiclTexcess^of beneUt, therefore, may be recovered in the equi-
table action of assumpsit. ^But if the nature of the part performance is such
that the other party can reject the benefit received therefrom, as by offering
to return specific articles received in part performance, but not actually con-
verted or used, he is at liberty to do so, and to reserve his remedy for the
non-performance of the contract. Courts of equity sometimes act upon a
similar principle in relieving a party against a penalty or forfeiture arising
from misfortune or the neglect of a party to perform his agreement ; and
perhaps in some cases it has been done where the forfeiture was incurred
wilfully and intentionally, without any pretence of excuse arising from
mistake or inability to perform. With the exception of this last class of
cases, if courts of justice were at liberty to make new laws instead of ad-
ministering those which are already in existence, and upon which the con-
tract of the parties litigant are supposed to be founded, or if this was a new
question upon which a court in this State was now to pass for the first
time in settling a principle upon the flexibility of the common law as ap-
plied to new cases, I see no reasonable objection to the transferring these
principles of the court of chancery to courts of common law, in cases of
mere personal contracts, not founded upon agreements relative to the sale
or transfer of an interest in real estate. But I consider this question as
settled in this State, by a uniform course of decisions for the last twenty-
five years, during which time the laws have undergone a most thorough
revision by the legislature, without any attempt to change the law in this
respect, as settled by the Supreme Court. I think it belongs, therefore, to
the legislatureT^id not to this court, to make a change in the law in this
respect, if such a change is deemed to be expedient and useful to the com-
munity. The only possible objection I can perceive to such a change is,
that it may be a strong temptation to negligence in the performance of
personal contracts, as the known practice of the court of chancery unques-
> 6 N. H. 492.
SECT. III.] CATLIN V. TOBIAS. 169
tionably is with respect to agreements for the sale or purchase of real
property. The conclusion at which I have arrived on the question as to
the plaintiff's right to recover at all in such a case, which was the principal
question before the Supreme Court, entitles the defendant to a judgment
upon this special verdict, upon the facts found thereby.
If the majority of the court agree with me in the conclusion at which I
have arrived upon the first point, the judgment should be affirmed ; but if
they agree with me upon the last point,* and not upon the first, the writ
of error should be dismissed ; so that the plaintiff in error may seek his
rehiedy, if he has any, by an application to the Supreme Court.
For the reasons before stated, I must vote for an affirmance of the judg-
ment.
On the question being put, Shall this judgment be reversed] the mem-
bers of the court divided as follows : —
In the aflarmative: Senators Beckwith, J. P. Jones, Loomis, Paige,
Spraker, Tallmade, Wager, Willes, Works — 9.
In the negative : The President of the Senate, The Chancellor, and
Senators Armstrong, J, Beardsley, L. Beardsley, Downing, Edwards,
Fox, Johnson, H. F. Jones, Lacy, McLean, Powers, Sterling, Tracy,
Van Dyck — 16.
Whereupon the judgment of the Supreme Court was affirmed.
CATLIN V. TOBIAS.
In the Court of Appeals of New York, March Term, 1863.
[Reported in 26 New York Reports, 217.]
Appeal from the Supreme Court. The facts are sufficiently stated in
the following opinion.
S. B. H. Judah for the appellant.
Jr. /. Street for the respondent.
Emott, J. This is an action for goods sold and delivered to the^defendant
hyjlanm] O Kptohum and Charlej_IL^ole, who were partners^jjnder the
firm of D. 0. Ketchum & Co. The answer, without denying the sale and
delivery of the merchandise, denies any indebtedness for the same. It then
proceeds to allege, as a separale~irefence, a colilracTljetweeirtKe defendant
and D. 0. Ketchum & Co., for the sale andTdelivery of certain glassware in
quantities and at pei-iods 'specified in the contract; by which contract
Ketchum & Co., in the event of their failing to perform, were^tojorfejt tq^
the defendant two hundred dollars. The answer goes on to aver that
1 This point involved only a question of practice, and so much of the opinion as
relates thereto has been omitted. — Ed.
170 CATLIN r. TOBIAS. [ciIAr. IL
D. 0. Ketcluim failed to deliver the glassware mentioned in the instru-
ment ; that the defendant has been damaged by such failure to the extent
of two hundred dollars ; that D. 0. Ketchum &, Co. have forfeited and
become liable to pay to the defendant the two hundred dollars specified in
their agreement, and the defendant claims to set off this amount against
the plaintiff, who is the assignee of D. 0. Ketchum & Co., and asks to have
the complaint dismissed.
It will be observed that the auswer admits the sale and delivery to the
defendant of the goods for which the action is brought, while it does not
allege that they were delivered under the contract which it sets up. It is
doubtful whether the principal and more important question discussed on
the argument of this appeal is raised by such an answer, but as it waa
evidently considered at the trial before the referee in the court below, and
is presented by his report, I will proceed to discuss it.
The referee states in his report that on the loth day of March, 1854, the
defendant, who was a manufacturer of liniment, made a contract in writing
with D. 0. Ketchum & Co., who were vendors of glassware, by which they
agreed to deliver to him bottles of various sizes for his medicine, at prices
which were specified in the^ contract, and he agreed to take the glassware.
Either party failing to perform was to forfeit or to pay $200 to the other.
Theljottles wereloJje^elivercdrduringTlielnonths of April, May, and June
next ensuing, and the kinds and quantities of bottles to be delivered during
each month are specified in the agreement. The agreement is silent as to
the time and manner of payment, altliough it was proved at the trial, with-
out objection, that there was to be a credit of six months. It was also
proved that after all the deliveries which the vendors actually made in
April, 1854, the defendant gave them his note at six months for an amount
which included the price of similar articles which had been sold and deliv-
ered to him before this agreement was made, and also a part of the price
of the articles delivered in April after the contract. This note was dated
April 13, 1854, and seems to have been subsequently paid, but the referee's
report is silent in regard to it ; nor is there evidence to show that there was
any distinct understanding between the parties as to its precise considera-
tion. On the 11th of April the referee finds that D. 0. Ketchum & Co.
delivered to the defendant sixty-four gross of two-ounce bottles, eighteen
gross of ten- ounce bottles, and sixty-two gross of five-ounce bottles, ^^e
contract calls for one hundred gross of two-ounce bottles, and twelve_gro88
of tpn-ouncel>ottles, to be furnished ^"^ the month of April, but thereja
nothing in it as to the purchase or sale at any time of any five-ounce
, » bottles. The referee finds that all the bottles thus delivered were received
'^tL^ y/i!-?^'^>j| anlPuscd by the defendant. After this, on the 14th day of April, 1854,
/ the firm of P. O. Ketchum t<: Co. was dissolved^ and all the ass^ts^ of the
firm,"inclnding~the contract with the defendant, an^ any and ejvery_elaiio
against^ him, were assigned to D. 0. Ketchum. A short time after this
SECT. III.] CATLIN V. TOBIAS. 171
D. 0. Ketchum failed, and on the 10th of June, 1854, executed a general
assi'^nmeut for the benefit of his creditors to the plaintiff. No more bottles
were^elivere^ to tEe^ defendant after the 11th of April, and the residue of
the 'agreement was not fulfilled by the vendors.
The plaintiff's assignors have, therefore, failed to perform their contract,
and assuming, as the referee has done, that all the articles delivered by
them to the defendant, of the description specified and called for by the
aoreement, were delivered under and in performance of it, the question
arises whether, upon such a part performance, payment can be recovered
for the price or value of the articles thus delivered. The referee held that
the defendant was liable to pay for the glass delivered after the making of
the a'n-eement, notwithstanding it was not delivered in pursuance of its'
terms. He did not, however, find or report that the defendaiit waivei}~the-
performance of the contract, but only that he accepted and used the articles
delivered. He also decided that the defendant^s_claim for damagesjorjthe
uon-delivery of the glass could not be set up under the pleadings and proof
in this action~against the plaintiff. To these decisions the defendant"
excepted.
It will be seen that ^ixty-tn^o gross of five-ounce bottles were delivered
by D. 0. Ketchum & Co. toThe^feudant on the jJ[tirof\4Elili which were
not called for by the contract. The report of the referee states that these
" were not at all within the contract," which may probably be fairly con-
strued to mean that they were not delivered or received in pursuance of
the contract, or as part of the deliveries under it. If this be so, and this
finding is not objected to by either party, there can be no reason why the
plaintiff should not recover the value of these articles, as upon a separate
and distlncFsale and delivery to the defendant. If there was such a dis-
tiuct^sale^as the referee's finding seems to imply, the vendors' right to
recover the price of the vendee does not depend upon their rights or
liabilities under the contract of the 10th of March, however the ultimate
recovery might be affected or reduced by any counter-claim of the defendant
for damages in consequence of a breach of that agreement. If I could find
in this case any unequivocal proof of the price or value of the property
included in this separate sale, I should have no difficulty in sustaining a
recovery against the defendant in this action to that extent. But the
referee does not state this price or value, nor is there any evidence of it
except in a bill produced at the trial, and stated to have been rendered to
the defendant by the present plaintiff after the assignment to him.
The referee held that the plaintiff's recovery could not be mitigated or
reduced by the loss or damage sustained by the defendant by the breach
of the contract. Without discussing that question T will proceed to con-
sider the case in a broader aspect, and to examine the main questjon^^
whether"lhe plaintiff can recover for the price or value of the articles^
actually^delivered by his assignor.
/
172 CATLIN V. TOBIAS. [CIIAP. K.
The referee decided that although there had been only a partial per-
formance of the contract, yet the defendant was liable to pay for the articles
delivered under it in such part performance, because they were accepted
and used by him. He considered that the deliveries stipulated in "the
months of April, May, and June were to be treated as separate contracts.
Even if this were so, the vendors did not perform their contract in respect
to the deliveries for the month of April, and the case, after all, stands upon
a partial performance only. In Doming v. Kemp,^ which is cited by the
referee, the original contract was void by the Statute of Frauds, and each
separate delivery was, therefore, regarded as a separate sale made upon an
independent contract. The same feature exists in the case of Seymour v.
Davis, decided in the same court.^
In the present case there was a valid contract between D. 0. Ketchum k
Co. and the defendant, for the sale and delivery of bottles of specified sizes
during three months. The defendant, no doubt, made this contract with
a view to the requirements of his business, and for the purpose of being
supplied with the articles from time to time as he required them. The
vendors failed to perform their part of this agreement, and the court below
held that the defendant was nevertheless bound to performance, that is,
payment on his part, because he did not return the articles which had been
delivered to him. So far as we have any evidence in the case, as to the
time and mode of payment, it was not due until after all the deliveries had
been made. The contract w^aj_entii'e, and called for an entire perforaa-
ance, and until such performance was made or tendered thei'e was no
liability on the part of the defendant. Jiiven it each month^s~delivery i8_
regarded as a separate contract, still the same principles apply and raus^
control the rights of these parties. Even in Tllar aspect of tTie^case, as I
have already said, there has been a breach of the contract by the vendor,
and his claim for compensation rests upon mere partial performance. I am
nnable to see any distinction between such a case and that of Champlin v.
Rowley, in the Court of Errors.^ The idea of an equitable right of recovery
in such cases, which was discountenanced by the chancellor in his opinion
there, has found no more favor in the courts of this State subsequently.
In Smith v. Brady,* the principles which control all this class of cases were
elaborately considered in this court, and it would be a distinct departure
from the doctrine of that case to sustain a recovery for the price of the
articles delivered under this contract upon the facts before us in this case.
The defendant was not bound to retain the articles delivered to him under
the contract in the course of the month of April, or of any other month
included within its limits, without using or dis])osing of them until the
contract, or even tlic month, had expired, to ascertain whether the vendors
^\- would perform their agreement. He made his contract to obtain the
1 4 Sand. S. 0. W. 147. 20 Sand. S. C. R. 239.
8 18 Weud. 258. * 17 N. Y. 173.
SECT. III.] ATKINS V. COUNTY OF BARNSTABLE. 173
articles which ho was to buy for immediate aud constant use, and no one
could have demanded or expected that he would not use them as they
were required in his business. But if he did not waive the performance
of the contract hejiadjiright to insist upon its performance as an^entirety,
and when the vendors, without cause or excuse, refused to perform it, he
w"a5~irot bound to return what he had receive^TPO^could he be compelled
to pay tor~arpart pel'formance. Such ^ertainly is now the settled^dQCtrine^
of the courts of this State.
~The"case of Shields v. Pettee,^ which was cited by the referee in his
opinion and on the argument, has no application to the present case.
That was a sale of a certain amount of iron as an entirety, all deliverable
at once. After the delivery had commenced the vendees found the article
not to be such as they had agreed to buy, and they refused to receive any
more. They did not, however, return what they had already received, but
claimed to retain this, while they refused the residue and still claimed
damages for the inferiority in quality of what they retained. The court
held that the vendees must either affirm or rescind in toto, and that they
could not retain a part of the iron sold them and at the same time refuse
the residue, and claim damages for its non-delivery. The difference is as
plain between this case and that, as it is between such a case and one
where a vendee accepts an article with his eyes open and thus elects to
consider it a performance of the contract, although it is different from what
the vendor agreed to make it. If, in the case of the sale of the iron, the
vendors, after delivering a part, had unjustifiably refused to deliver the
residue, and yet claimed to recover for what they had delivered, or if in
the latter case supposed, the vendor had tendered an article which was not
according to his contract, and sought to recover its price although the ven-
dee refused to receive it, the cases would be more analogous to the present.
As I see no way of retaining the judgment for the articles sold and
delivered independently of the contract, it must be reversed and a new trial
ordered in the court below.
Judgment reversed, and new trial ordered.
JONAH ATKINS v. COUNTY OF BARNSTABLE.
In the Supreme Judicial Court of Massachusetts, October Term, 1867.
[Reported in 97 Massachusetts Reports, 428.]
Contract for building a section of a public highway in Truro. The
declaration colrtained two counts, the first on a \vriLten~contract, in which
it was provided that the work should be done '*' to the acceptance of the
,><.
1 2 Sand. S. C. 262.
174
ATKINS V. COUNTY OF BARNSTABLE.
[chap, il
county copiQiissioners." and the price of six hundred and thirty dollars
should be paid therefor ; the second, the common count for work and labor
done for the defendants. Answer, denial that the work was done " to the
acceptance of the county commissioners," and averment of_payment to thfl_
pTamtiff of the fulTvalue of hli^woA and labor!
At the triaT~in the Superior Court, before Rockwell, J., it was agreed
that the defendants had advanced to the plaintift" five hundred dollars,
" with the understanding that such payment should not affect his claim,
and on their statement that they did not accept the work ; " and there was
evidence of the manner in which the work was performed.
The plaintiff requested the judge to rule that if he executed his part of
, the contract according to its provisions, the defendants were bound to ac-
/ " / "z^- cept his work and pay him the price stipulated therein, and cannot defeat
this action on the ground of their non-acceptance. But the judge declined
so to rule, and instructed the jury as follows : " On the first count the
plaintiff cannot recover unless he shows a substautud acceptance of the
work by the county commissioners; but on the second count he may_rfir,
cover if He hassatiified the jury that in good faith he has exactly performed
tTie contract, and^iadejbhe section of the road according to the stipulations^
in every particular ejceptjthat jthe commissioners did not accept it, he
showing that it was^ntitled to the said acceptance^ bx the manner in which
he had pcrformed^jthe w^ork ; and he may recover for the value of the
labor aDd~service8 what they were reasonably worth, not exceeding"however
the contract price. This action may be maintained, although the contract
has'liot Tieen performed according to its terms, provided the plaintiff has in
good faith done what he believed to be a compliance with the terms of the
contract,^nd~lIa3~rendered a benefit to~tEe defendants; and he may re-
cover such sum as the labor and services were worth, not exceeding the
contract price. Under the agreement of the parties concerning the pay-
ment of five hundred dollars made to the plaintiff, the recovery, if any,
upon the principles above stated, will be for such sum as the jury may find
he reasonably deserves to have, over and above five hundred dollars, but if
they find that he does not reasonably deserve to have more than five hun-
dred dollars, the verdict may be for the defendants. If the juryjire^sati8-_
fied that the plaintiff did not intend to perform the stipulations of the
contract substantially, and did not so perform themThe cannot recover
upon either count."
The jury returned a verdict for the defendants ; and the plaintiff alleged
^ exceptions. ~~ "
J. M. Day for the plaintiff.
U. A. Scudder for the defendants.
BiGELOW, C. J. The instructions were in conformity to the decided cases
and in all respects sufficiently favorable to the plaintiff. As to his right to__
recover on the first count, the agreement was express that the work should
iordf-Af^
'k/J
SECT. III.] HAPGOOD V. SIIAW. 175
be done to the satisfaction of the comity commissioners. The plaintiff was
bound to show such acceptance in order to maintain an action on the
written contract to recover the agreed price. McCarren v. McNulty.^ As
to a recovery on the second count, the elements necessary to jgstabhsh a
claim against the defendants and the measure by which the damages were
to be assessed wore correctly stated by the court. Hayward v. Leonard ; '^
Snow V. Ware.*
Exceptions overruled.
JOAB HAPGOOD v. FRANK SHAW and Another. FRANK SHAW
AND Another v. JOAB HAPGOOD.
In the Supreme Judicial Court of Massachusetts, October Term, 1870.
[Reported in 105 Massachusetts Reports, 276.]
Two actions of contract. The first by Hapgood against Frank Shaw
and George Warren, to recover back $100 paid for guns which never were
delivered ; the second by Shaw and Warren against Hapgood, to recover
for his refusal to accept and pay for the guns. The actions were tried
together in the Superior Court before Dbvens, J.
It appeared at the trial that Hapgood, who was a dealer in guns in
Boston, ordered guns from Joseph Child, a manufacturer in England,
through Shaw and Warren, who were shipping merchants doing business in
Boston and Liverpool under the name of Warren & Company ; that Child
sent the guns ordered, and also others not ordered, to Warren & Company,
who paid for them and shipped them to America without authority ; that
Warren & Company signed and delivered to Hapgood, on the day of its
date, the following agreement : " Boston, March 30, 1864. Received of
Joab Hapgood $100 on account of guns shipped by us per invoice about
£90 sterling from Joseph Child, and now in bonded warehouse in New
York, which guns we promise to deliver to said Hapgood on the first day
of June next, or at such time as he shall order previous to that date, upon
payment of balance of invoice, with freight, charges, and interest to date of
remittance due in England ; " that the guns mentioned in this agreement
were the guns above mentioned as shipped by Warren & Company ; that
Hapgood, at the time of the execution of this agreement, paid the $100, and
agreed orally to receive the guns on or before June 1, 1864 ; that the guns
were shipped and placed in the warehouse in the name of Warren & Com-
pany ; " that from the date of the agreement until June 6, 1864, Warren &
Company never delivered or offered to deliver the guns to Hapgood, or
made to him any statement or demand of the amount of the sums to be
1 7 Gray, 139. 2 7 ^i^k. 181. s 3 Pick. 181. « 13 Met. 42.
176 HAPGOOD V. SHAW. [CHAP. II.
by him paid for them ; that Hapgood never requested any such statement,
or paid or ofifered to pay the said amount ; that on June 6, 1864, Warren
& Company requested Hapgood to take and pay for the guns, which he
refused to do ; and that the guns remained in the bonded warehouse in
New York from October, 1863, when they arrived from Liverpool, until
July, 1864, when they were sent back to Liverpool and sold by WaiTen &
Company."
Shaw testified " that the items of charges upon the guns could not be
ascertained until the goods were removed from the bonded warehouse ;
that if Hapgood had received the guns in the fall of 1863, after they were
placed in the warehouse, he would have paid to Warren & Company the
freight and invoice, and received an order authorizing the guns to be taken
from the bonded warehouse, and would have sent there for them and then
paid the warehouse charges."
By consent of the parties the judge withdrew the cases from the jury
and reported them for the determination of this court ; the parties agree-
ing " that if the court should be of opinion that the first case could be
maintained on the foregoing evidence, so far as competent, judgment
should be entered for the amount claimed in the declaration, with interest
from the date of the writ, otherwise for the defendant ; if the court should
be of opinion that the second case could be maintained for substantial
damages, the case should be sent to an assessor to determine the amount
of damages, otherwise judgment be entered for the plaintiff for nominal
damages, or for the defendant, if the action cannot be maintained at all."
G. F. Hoar and T. L. Nelson for Hapgood.
F. P. Goulding and //. B. Staples for Shaw and Warren.
Wells, J. Whether the contract between the parties was a sale and
purchase of the guns, or an agreement to adopt the acts of Warren &
Company, and adjust their advances and expenses in the execution of an
agency assumed by them without authority, is immaterial to the decision
of these cases. The rights and liabilities of the respective parties hero
must be determined by the provisions of their mutual agreement. Both
actions are founded on that agreement. Warren & Company sue for the
balance due under it ; Hapgood for a return of his money, on the ground
of a default by W^arren & Company in not delivering the guns.
It is also unnecessary to determine whether, under this agreement and
the circumstances affecting it, the guns were to be transported and deliv-
ered specifically at Boston by Warren & Company, or whether a delivery
by an order upon the warehouse in New York, subject to the payment of
the charges there, would be a sufficient delivery to meet the requirements
of the written agreement. Warren & Company have not made nor offered
to make a delivery in either form, until after the time fixed by the terms
of thoir agreement for such delivery.
If this liad been an absolute, independent agreement on the part of
SECT. III.] HAPGOOD V. SHAW. 177
IVarreu & CoiDpany, they would have been in default upon the facts
icre shown. But the case finds a mutual agreement. Hapgood, at the
;ime of executing the written contract by Warren & Company, orally
igreed " to receive the goods on or before June 1 ; " and this, with the
icceptance of the writing, implied a pi'omise to pay the balance as stipu-
atcd therein. The written contract, by its express terms, engages for the
lelivery, only " upon payment of balance of invoice, with freight, charges,
md interest." These are mutually dependent stipulations. The acts of
lerfurmance by each party are to be concurrent. There is nothing to be
lone by eithei', which by the terms of the agreement, or from the necessity
)f the case, must precede any action by the other.
It is urged in behalf of Hapgood that he could not pay until furnished
vith a statement of charges. But we do not see that Warren & Company
vere under any obligation to furnish such a statement except upon request
uid offer of payment, or notice of readiness to pay.
No place is specifically agreed on for the performance ; so that neither
jarty is in default for not being in readiness at such place.
The report states that from the date of the agreement until June 6
' Warren & Company never delivered or offered to deliver the guns to
H[apgood, or made to him any statement or demand of the amount of the
lums to be by him paid for them ; that Hapgood never requested any such
itateraent, or paid or oflfered to pay the said amount."
Upon that statement, neither party is in default ; neither can hold the
)ther for a breach of the agreement. Hapgood was bound to pay only
ipon delivery of the guns, and Warren & Company were bound to deliver
,he guns only upon payment. Upon such an agi-eement, if both parties
•emain inactive there is no breach by either. If either would charge the
)ther upon it, he must put him in default. He must show a refusal by
;he other party to perform, or some act or neglect on his part which may
)e regarded as equivalent to a refusal. Unless excused from performance
)n his own part by the refusal of the other party to perform, or some con-
luct equivalent to a refusal, he must show that he has offered to perform
lis part of the agreements ; or at least that he gave notice of his readiness
;o perform, or being thus ready, requested performance by the other party,
bailing to do that, he cannot charge the mere neglect of the other party to
;ake any action as a refusal to perform, or as a breach of the agreement.
jardiner v. Corson;^ Dana v. King;^ Hunt v. Livermore ; ^ Kane v.
:Iood ; * Tinuey v. Ashley ; ^ Cook v. Doggett ; ^ Smith v. Boston & Maine
:Uilroad;^ Cobb v. Hall;^ Howard v. Miner ;« Green v. Reynolds;^"
Parker v. Parmele ; " Callonel v. Briggs ; ^^ Collins v. Gibbs ; ^^ Jones v.
1 15 Mass. 500. 2 2 Pick. 155. 3 5 Pick. 395. * 13 Pick. 281.
5 15 Pick. 546. c 2 Allen, 439. ■? 6 Allen, 262. 8 33 yt. 233.
9 20 Me. 325. w 2 Johns. 207. " 20 Johns. 130. 12 1 Salk. 112.
13 2 Burr. 899.
VOL. II. — 12
178 LUKE V. LYDE. [CHAP. II.
Barkley.* It follows that in these suits neither party can recover on the
ground of a breach of contract by the other. Nor can Hapgood maintain
his action for a return of the money paid by him on account of the agree-
ment. His only remedy is upon the contract itself, unless he can treat
that as rescinded. Thompson v. Gould ; ^ Hudson v. Swift ; ^ Congdou v.
Perry.
The contract was binding upon both, and could be rescinded only by the
concurrence of both. The act of Warren & Company in sending the guns
back to England and selling them there, did not entitle Hapgood to treat
the contract as rescinded ; because they had, before doing so, " requested
Hapgood to take and pay for the guns, which he refused to do." After
that refusal he could not require them to hold the guns longer for his
benefit, nor to account to him for the money advanced towards their cost.
Ross V. Tremain.^ There having been no previous breach of the agreement
on the part of Warren & Company, Hapgood's refusal to carry it into effect
upon their offer to do so deprived him of the right afterwards to treat it as
rescinded.^
According to the terms of the reservation, the entry must be in each
case Judgment for the defendant.
(h \ Pprfnrmn.nrp Tmnossible.
(6.) Performance Impossible.
LUKE et al. v. LYDE.
In the King's Bench, Michaelmas Term, 1759.
[Reported in 2 Burrow, 882.]
A SPECIAL case from the last Devonshire assizes; reserved by Lord
Mansfield, who went that circuit last summer.
The defendant Lyde shipped a cargo of 1501 quintals of fish, at the port
of St. John in Newfoundland, on board the ship " Sarah," belonging to the
plaintiffs, to be carried to Lisbon. The plaintiff's were to be paid freight,
at the rate of two shillings per quintal. The original price of the said cargo
was, at Newfoundland, ten shillings and sixpence sterling per quintal.
The plaintiff's had also on board the said *' Sarah," a cargo of 945 quintals
of fish, which was their own property.
The ship sailed from the port of St. John on 27th November, 1756, and
had proceeded seventeen days on her voyage, and was taken on the Uth
of December following, within four days* sail of Lisbon, by a French ship.
And the captain, the other officers, and all the crew (except one man and
1 2 Dougl. 684. 2 20 Pick. 134. » 20 Johns. 24.
* 13 Gray, 3. * 2 Met. 495. ^ Chit. Con. (8th Am. ed. ) 636.
lECT. III.] LUKE V. LYDE. 179
, boy) were taken out of the "Sarah " and put on board the French ship,
.'he ship " Sarah" was retaken on the 17th of the same December, 1756,
ly an English privateer; and on the 29th of December, 1756, brought into
he port of Biddeford in Devonshire.
The plaintiffs, having insured the ship and their partof the cargOj nhnn-
oned thesame to the insurers. But the freight, which the owners were
nntIc(lto^__was_not insured.
The defendant had his goods of the recaptors, and paid them 5s. per
uintal salvage, at the rate of 10s. per quintal vahie.
The fish could not be sold at all at Biddeford, nor at any other port in
higlaud, for more than 10s. per quintal, clear of all charges and expenses
> bringing them to such port. And the most beneficial market (in the
pprehension of every person) for disposing of the said cargo of fish, was
t Bilboa in Spain, to which place the defendant sent it in the March fol-
)wing ; and there was no delay in the defendant in sending the said cargo
hither. And it was sold there for 5s. GJ. per quintal, clear of the freight
bither, and of all expenses attending the sale there.
The freight from Biddeford to Lisbon is higher than from Newfoundland
J Lisbon.
From the time of the capture, the whole way that the shipwas after-
ards carried was out of the course of her voyage to Lisbon.
The questLon^jwas^" Whether the plaintiffs are entitled to any, and what
•cigEtTand at what rate7 and subject to what deductionj"
^MfTHiissey loFtfie^aintiflsr
Mr. Gotdd for the defendant.
Lord Mansfield said, That though he was of the same opinion at the
ssizcs as he was now, yet he was desirous to have a case made of it, in
rder to settle the point more deliberately, solemnly, and notoriously, as
was of so extensive a nature ; and especially, as the maritime law is not
le law of a particular country, but the general law of nations : " non erit
lia lex Romae, alia Athenis ; alia nunc, alia posthac ; sed et apud omnes
sntes et omni tempore, una eademque lex obtinebit."
He said, he always leaned (even where he had himself no doubt) to
lake cases for the opinion of the court ; not only for the greater satisfac-
on of the parties in the particular cause, but to prevent other disputes,
7 making the rules of law and the ground upon which they are established
jrtain and notorious; but he took particular care that this should not
-eate delay or expense to the parties, and therefore he always dictated the
ise in court and saw it signed by counsel, before another cause was called ;
3d always made it a condition in the rule, " that it should be set down to
3 argued within the first four days of the term." Upon the same prin-
ple, the motion "to put off the argument of this case to the next term,"
as refused ; and the plaintiff will now have his judgment within a few
ays, as soon as he could have entered it up if no case had been reserved,
180 LUKE V. LYDE. [ClIAP. II.
at tlie expense of a single argument only ; and some rules of the maritime
law, applicable to a variety of cases, will be better known. He said, before
he entered into it particularly, he would lay down a few principles, viz. : —
If a freighted ship becomes accidentally disabled on its voyage (without
the fault of the master), the master has his option of two things ; either to
refit it (if that can be done with convenient time), or to hire another ship
to carry the goods to the port of delivery. If the merchant disagrees to
this, and will not let him do so, the master will be entitled to the whole
freight of the full voyage. And so it was determined in the House of
Lords, in that case of Lutwidge »k How v. Grey et al.
As to the value of the goods, it is nothing to the master of the ship
" whether the goods are spoiled or not." Provided the freighter takes
J them, it is enough if the master has carried them ; for by doing so he has
^ earned his freight. And the merchant shall be obliged to take all that are
^ saved, or none ; he shall not take some, and abandon the rest, and so pick
C and choose what he likes, taking that which is not damaged, and leaving
'^ that which is spoiled or damaged. If he abandons all, he is excused freight;
c- and he may abandon all, though they are not all lost. (I call the freighter
the merchant, and the other the master, for the clearer distinction.)
Now here is a capture without any fault of the master, and then a re-
' capture. The merchant does not abandon, but takes the goods, and does
not require the master to carry them to Lisbon, the port of delivery. In-
deed, the master could not carry them in the same ship, for it was disabled,
V and was itself abandoned to the insurers of it ; and he would not desire to
find another, because the freight was higher from Biddeford to Lisbon, than
from Newfoundland to Lisbon.
There can be no doubt but that some freight is due, for the goods were
not~abandoned~by the freighter, but received by him of the recaptor.
~~Tlie~qiiestion will be " what ft'eight 1 "
The answer is " a ratable freight," i. e., pro rata itineris.
If the master has his election to provide another ship to carry the goods
to the port of delivery,* and the merchant does not even desire him to do
so, the master is still entitled to a proportion, pro rata, of the former part
of the voyage.
I take the proportion of the salvagejiere to be half of the whole cargo,
upon thebaic of the case as here agreed upon. And it is reasonable that
the half here paid to the recaptor should be considered as lost. For the
recaptor was not obliged to agree to a valuation, but he might have had
the goods actually sold, if he had so pleased, and taken half the produce;
and therefore the half of them are as much lost as if they remained in the
enemy's hands. So that half the goods must be considered as lost, and half
as saved.
Herelihe master liad come seventeen days of his voyage, and was within
fouiTdayB^oirthe destined port when the accident happened. Therefore be
SECT. III.] LUKE V. LYDE. 181
ouffht to be paid his freight for ^j parts of the full voyage, for that half of
the cargo which was saved.
"~~nmcrby the ancientest laws in the world (the Rhodian laws), that the
master shall have a ratable proportion, where he is in no fault. And Cou-
solato del Mere, a Spanish book, is also agreeable thereto. Ever since the
laws of Oleron, it has been settled thus. In the Usages and Customs of
the Sea (a French book), with observations thereon, the fourth article of
the Laws of Oleron is, " That if a vessel be rendered unfit to proceed in her
voyage, and the mariners save as much of the lading as possibly they can ;
if the merchants require their goods of the master, he may deliver them, if
he pleases, they paying the freight in proportion to the part of the voyage
that is performed, and the costs of the salvage ; but if the master can
readily repair his ship, he may do it, or if he pleases, he may freight an-
other ship to perform his voyage." Amongst the observations thereon, the
first is, " that this law does not relate to a total and entire loss, but only
to salvage ; or rather, not to the shipwreck, but to the disabling of a ship,
so that she cannot proceed in her voyage without refitting ; in which case
the merchants may have their goods again, paying the freight in proportion
to the way the ship made."
The observation adds further, " That if the master can, in a little time,
refit his vessel and render her fit to continue her voyage (that is, if he can
do it in three days' time at the most, according to the Hanse-Town laws),
or if he will himself take freight for the merchandise aboard another ship,
bound for the same port to which he was bound, he may do it ; and if the
accident did not happen him by any fault of his, then the freight shall be
paid him." The thirty-seventh article of the Laws of Wisbury is to the
very same purport.
Roccius de Navibus et Naulo, in note eighty-first, says : " Declara hoc
dictum. Ubi nauta munere vehendi in parte sit functus, quia tunc pro
parte itineris quo merces inventse sint, vecturam deberi sequitas suadet ; et
pro ea rata mercedis solutio fieri debet. Ita Paul de Castro, etc." (Then
a string of authorities follows.) " Et pi'obat Joannes de Evia, etc. ; qui hoc
extendit in casu quo merces fuerint deperditaj (totally lost) una cum navi,
et certa pars ipsarum mercium postea fuerit salvata et recuperata; tunc
naulum deberi pro rata mercium recuperatarum, et pro rata itineris usque
ad locum in quo casus adversus acciderat, fundat, etc." (And then he goes
on with authorities.) " Item declara, quod si dominus sen magister navis
solverit mercatori pretimn mercium deperditarum, tunc tenetur mercator
ad solutionem nauli ; quia merces habentur ac si salvatse fuissent."
In another book entitled The Ordinance of Lewis the XIV., established
in 1G81 (collected and compiled under the authority of M. Colbert), the
same rules are laid down, particularly in the eighteentli, nineteenth, twenty-
first, and twenty-second articles. Article eighteenth directs, That no freight
shall be due for goods lost by shipwreck, or taken by pirates or enemies.
182 MENETONE V. ATHAWES. [CIIAP. II.
Article nineteenth is, That if the_sLip_and goods be ransomed, themaster
shaUbepaid his freight to the placewhere they were_takenj an3~Ee^8EalI
be paid his whole freight, if he conduct them jojhe place agreed on, he
contributing towards the ransom. (Article twentieth settles the rate of
contributioiT:) — Article twenty^st. The master shall likewise be^jaidthe
freight of goods saved from shipwreck, he conducting them to the place
appointed. Article twenty -second, If he^aunot^tind^a ship to carry thither
the goods preserved, he shall only _be^ paid his freight in proportion Jo
what he has^erformed^of the voyage.
And the case in the House of Lords between Lutwidge & How v. Gray
et al. is also in point, and was well considered there. And Lord Talbot
gave the reasons of the judgment of the House, at length.
Therefore in the present case, a ratable proportion of freight^ughjio be
paid for half the goods.
It is quite Tmmaterial what the merchant made of the goods afterward,
for the master hath nothing at all to do with the goodness or badness of
the market ; nor indeed can that be properly known till after the freight is
paid, for the master is not bound to deliver the goods till after he is paid
his freight. No sort of notice was taken of that matter in the case of Lut-
widge & How V. Gray, in the House of Lords ; and yet there the tobacco
was damaged very greatly, even so much that a great part of it was burnt
at the scales at Glasgow.
Therefore the verdict must be for 60^. 14s., which, upon computation,
amounts to the ratable proportion of the freight, being \\ of 75/., the half
of 150/.
Consequently, the verdict which was for 70/. must be set right, and
made 60/. lis. Let tlie postea be delivered to tJie plaintiff.
MENETONE v. ATHAWES.
In the King's Bench, November 22, 1764.
[Reported in 3 Burrow, 1692.]
This was an action by a shipwright for work and labor done and mate-
rials provided, in repairing the defendant's ship. And the question was,
" Whether the plaintiff was entitled to recover, under the following circum-
stances."
The ship, being damaged, was obliged to put back, in order to be repaired
in dock ; and was to have gone out of the dock on a Sunday ; in the interim,
viz. on the day before, and when only three hours' work was wanting to com-
plete the repair, a fire happened at an adjacent brew-house, and was commu-
nicated to the dock ; and the ship was burnt.
SECT. III.] MENETONE V. ATIIAWES. 183
N. B. It was the shipwright's own dock 1 and the owner of the ship had
agreed to pay him 51. for thj use of it^
This case was argued on Tuesday, the 1 3th of this month, by Mr. Murphy,
for the plaintiff; and Mr. Dunning, for the defendant.
For the plaintiff, it was insisted that he was not answerable for this event,
which happened without his neglect or default ; unless there had been some
special undertaking.
Indeed, a tenant is bound to provide the landlord as good a house, in
case of its being burnt, if he covenants to deliver up the house to him
af^ain, in as good repair as it was then : upon such a special undertaking
an action would lie, but not otherwise. Doctor and Student, dialogue 2,
chap. 4.
In the case of wagoners and common carriers, they are bound to answer
for the goods against all events but acts of God and of the enemies of the
king. Coggs V. Bernard ^ ; Amies v. Stephens.^ And a gaoler is excusable
from escapes in those cases.^ And in like manner, where it is the act of
God, the person who has the custody of another man's property is excused.
The plaintiff here was a general bailee only, therefore not chargeable.*
He was only obliged to keep it as he would keep his own.
The case of Coggs v. Bernard in 2 Ld. Raym. 909, overrules Southcote's
case in 4 Co. 84.
Even a pawn remains the property of the original owner. Sir John
Hartopp V. Hoare.'^ The plaintiff was considered as a mere bailee, for safe
custody only.
In insurances made by merchants, it is usual to insert docks. The men
were on board of this ship (though that makes no difference).
The plaintiff therefore was not answerable for this loss of the ship. And
if the plaintiff be not liable for the loss of the ship, he is entitled to be pa^
^r his work and materiaTsT^ The materials must be considered as having
been delivered. The merchant always pays 51. for the hire of a dock, aud
so he agreed to do in this case. And these materials were delivered on
board his ship in this dock.
When tithes are set out, they are thereby vested in the parson, and he
may maintain trespass for any injury done to them.
The defendant might have sold this ship while it was in the dock, and
these materials would have been part of it. The fixing them to the ship
was a delivery of them. The adjunct must go with the subject. Dr. Cowell
in treating of the various modes of acquiring property, is of this opinion.
Mr. Dunning, contra, for the defendant.
The question is, " Whether the plaintiff is entitled to be paid by the de-
fendant for that work and labor from which the defendant neither did nor
could reap any advantage."
1 2 Ld. Eaym. 909. 2 j gtr., 128. ^ j Ro. Abr. 808, pi. 5, 6.
* 1 Inst. 89. 5 2 Str. 1187.
184 MENETONE V. ATHAWES. • [CHAP. II.
The plaintiff was obliged to redeliver the ship safe, having undertaken to
repair it.
The defendant has had no benefit from the plaintiff's labor or materials;
neither was the plaintiff's undertaking completely performed.
Carriers and hoy-men cannot be entitled to be paid for carrying things
that perish before they are delivered ; nor jewellers, for setting a jewel that
is destroyed before it is set. So a tailor, where the cloth is destroyed before
the suit is finished. So of any unfinished, incomplete undertaking.
As there is no express agreement to support this action, the court will
not imply any.
Mr. Murphy in reply. As to the defendant's not having had the benefit
of tlie repair. There is no reason why the shipwright should not be paid
for his work and labor and materials. "Digest," title de negotiis gestis.
The defendant might have insured his ship.
Nothing can be due to a carrier or hoy-man till the delivery of the goods
at the destined place. But these materials were delivered, and the work
and labor actually done.
Suppose a horse, sent to a farrier's to be cured, is burnt in the stable
before the cure is completely effected; shall not the farrier be paid for
•what he has already done %
A pawnbroker, if the pawn is destroyed by the act of God, shall recover
the money lent.
Lord Mansfield. Thig^ is a desperate case for the defendant (tliongh
compassionate). I doubt it is very difficult for him to maintain his point.
Besides it is stated^jjjjiatjiclpaid bl. toTthelTse of the dock7
IAt. Justice WiLMOT. So that it is like a horse that a fairier was curing
being burnt in the owner's own stable^
" Mr. ~Attorn€y-General being retained~to argue it for the defendant,
The court offered to hear a second argument from him, if he thought he
could maintain his case, but seemed to think it would be a very difficult
matter to do it.
Mr. Attorney-General appeared to entertain very little hope of success :
however, he desired a day or two to consider of it. But
Mr. Recorder now moving " That the postea might be delivered to the
plaintiff," —
The Attorney-General did not oppose it.
And a Rule was made accordingly.
That the postea be delivered to the plaintiff.
SECT. III.] CUTTEK V. POWELL. 185
CUTTER, Administratrix of CUTTER, v. POWELL.
In the King's Bench, June 9, 1795.
[Reported in 6 Term Reports, 320.]
To assumpsit for work and labor done by the intestate, the defendant
pleaded the general issue. And at the trial at Lancaster the jury found a
verdict for the plaintiff for 3U. 10s., subject to the opinion of this court on
the following case.
The defendant being at Jamaica subscribed and delivered to T. Cutter the
intestate a note, whereof the following is a copy ; " Ten days after the ship
Governor Parry, myself master, arrives at Liverpool, I promise to pay to
Mr. T. Cutter the sum of thirty guineas, provided he proceeds, continues,
and does his duty as second mate in the said ship from hence to the port of
Liverpool. Kingston, July 31st, 1793." The ship Governor Parry sailetT
from Kingston on the 2d of August, 1793, and arrived in the port of Liver-
pool on the 9th of October following. T. Cutter went on board the ship on
the 31st of July, 1793, and sailed in her on the 2d day of August, and pro-
ceeded, continued, and did his duty as second mate in her from Kingston
until his death, which happened on the 20th of September_following, and
before the ship's arrival in the port of Liverpool. The usual wages of a
second mate of a ship on such a voyage, when shipped by the month out and
home, is four pounds per month : but when seamen are shipped by the rim
from Jamaica to England, across sum. is usually given. The usual length
of a voyage from Jamaica to Liverpool is about eight weeks.
This was argued last term by J. Heywood for the plaintiff : but the court
desired the case to stand over, that inquiries might be made relative to the
usage in the commercial world on these kinds of agreements. It now ap-
peared that there was no fixed settled usage one way or the other ; but sev-
eral instances were mentioned as having happened within these two years,
in some of which the merchants had paid the whole wages under circum-
stances similar to the present, and in others a proportionable part. The
case was now again argued by
Chamhre for the plaintiff, and
Wood for the defendant.
Lord Kenyon, C. J. I should be extremely sorry that in the decision
of this case we should determine against what has been the received opinion
in the mercantile world on contracts of this kind, because it is of great
importance that the laws by which the contracts of so numerous and so use-
ful a body of men as the sailors are supposed to be guided should not
be overturned. Whether these kind of notes are much in use among the
seamen, we are not sufficiently informed ; and the instances now stated to us
186 CUTTER V. rOWELL. [CHAP. II.
from Liverpool are too recent to form anything like usage. But it seems to
me at present that the decision of this case may proceed on the particular
words of this contract and the precise f;\cts here stated, without touching
marine contracts in general. That where the parties have come to an ex-
press contract none can be implied has prevailed sojong as to be reduced
to an axiom in the law. Here the defendant expressly promised to pay the
intestate thirty guineas, provided he proceeded, continued, and did his duty
as second mate in the ship from Jamaica to Liverpool ; and the accompany-
ing circumstances disclosed in the case are that the common rate of wages
is four pounds per month, when the party is paid in proportion to the time
he serves; and that this voyage is generally performed in two months.
Therefore if there had been no contract between these parties, all that the
intestate could have recovered on a quantum meruit for the voyage would
have been eight pounds ; whereas here the defendant contracted to pay
thirty guineas provided the mate continued to do his duty as mate during
the whole voyage, in which case the latter would have received nearly four
times as much as if he were paid for the number of mouths he served. lie
stipulated to receive the larger sum if the whole duty were performed, aud
nothing unless thg whole "oTthat^uty^were performed : it was a kind of ig-
siirance. On this" particular contract my opinion is formed at present ; at
the same time I must say that if we were assured that these notes are in
universal use, aud that the commercial world have received and acted upon
them in a different sense, I should give up my own opinion.
AsHHURST, J. We cannot collect that there is any custom prevailing
among merchants on these contracts ; and therefore we have nothing to ^uide
us but the terms oTthe contract itself. This is a written contract, and it
speaks for itself And as it is entire, and as the defendant's promise de-
pends on a condition precedent to be performed by the other party, the con-
dition must be performed before the other party is entitled to receive
anything under it. It has been argued, however, that the plaintiff may now
recover on a quantrim meruit ; but she has no right to desert the agreement j
for wherever there is an express contract, the parties must be guided by it j
and one party cannot relinquish or abide by it as it may suit his advantage.
Here the intestate was by the terms of his contract to perform a given duty
before he could call upon the defendant to pay him anything ; it was a con-
dition precedent, without performing which the defendant is not liable.
Aud that seems to me to conclude the question ; the intestate did not per-
form the contract on his part ; he was not indeed to blame for not doing it;
hut still as this was a condition precedent, and as he did not perform it,
his representative is not entitled to recover.
GuosE, J. In this case the plaintiif must either recover on the particular
stipulation between the parties, or on some general known mle of law, the
latter of which has not been much relied upon. I have looked into the
laws of Oleron, and I have seen a late case on this subject in the Court of
SECT. III.] CUTTER V. POWELL. 187
Coramou Pleas, Chandlers. Greaves.* I have also inquired into the practice
of the merchants in the city, and have been informed that these contracts
are not considered as divisible, and that the seaman must perform the voy-
age otherwise he is not entitled to his wages ; though I must add that the
result of my inquiries has not been perfectly satisfactory, and therefore I do
not rely upon it. The laws of Oleron are extremely favorable to the seamen ;
so much so that if a sailor, who has agreed for a voyage, be taken ill and put
on shore before the voyage is completed, he is nevertheless entitled to his
whole wages after deducting what has been laid out for him. In the case
of Chandler v. Greaves, where the jury gave a verdict for the whole wages to
the plaintiff, who was put on shore on account of a broken leg, the court re-
fused to grant a new trial, though I do not know the precise grounds on
which the court proceeded. However in this case the agreement is conclu-
sive ; the defendant only engaged to pay the intestate on condition of his
continuing to do his duty on board during the whole voyage ; and the latter
was to be entitled either to thirty guineas or to nothing, for such was the
contract between the parties. And when we recollect how large a price was
to be given in the event of the mate continuing on board during the whole
voyage, instead of the small sum which is usually given per month, it may
fiiirly be considered that the parties themselves understood that if the
wEoIe"liuty were performed, the mate was to receive the whole sum, and
that he was not to receive anything unless he did continue on boardjdiiniig
the whole voyage. That seems to me to be the situation in which the mate
chose to put himself ; and as the condition was not complied with, his repre-
sentative cannot now recover anything. I believe, however, that in point
of fact, these notes are in common use, and perhaps it may be prudent not
to determine this case until we have inquired whether or not there has been
any decision upon them,
Lawrence, J. If we are to determine this case according to the terms of
the instrument alone, the plaintiff is not entitled to recover, because it is an
entire contract. In Salk. 65, there is a strong case to that effect ; there
debt was brought upon a writing, by which the defendant's testator had
appointed the plaintiff's testator to receive his rents, and promised to pay
him 100^. per annum for his service ; the plaintiff showed that the defend-
ant's testator died three quarters of a year after, during which time he
served him, and he demanded 751. for three quarters ; after judgment for
the plaintiff in the Common Pleas, the defendant brought a writ of error,
and it was argued that without a full year's service nothing could be due,
for that it was in nature of a condition precedent ; that it being one con-
sideration and one debt it could not be divided ; and this court were of that
opinion, and reversed the judgment. With regard to the common case of
an hired servant, to which this has been compared ; such a servant, though
hired in a general way, is considered to be hired with reference to the gen-
1 Hil. 32 Geo. 3 C. B.
188 APPLEBY V. DODS. [CHAP. II.
eral understauding upon the subject, that the servant shall be entitled to bis
wages for the time he serves though he do not continue in the service dur-
ing the whole year. So if the plaintiff in this case could have proved any
usage that persons in the situation of this mate are entitled to wages
in proportion to the time they served, the plaintiff might have recovered
according to that usage. But if this is to depend altogether on the terms
of the contract itself, she cannot recover anything. As to the case of the
impressed man, perhaps it is an excepted case ; and I believe that in such
cases the king's officers usually put another person on board to supply the
place of the impressed man during the voyage, so that the service is still
performed for the benefit of the owners of the ship.
Postea to the defendant,
unless some other information relative to the usage in cases of this kind
s6ould be laid before the court before the end of this term ; but th"e case
• was not mentioned again.
APPLEBY V. DODS.
In the King's Bench, April 18, 1807.
{Reported in 8 East, 300.]
In assumpsit for a seaman's wages, it appeared at the trial at the last
sittings~an>u[ldhall, that the plaintiff served as a mariner on board a
West India ship belonging to the defendant, underjthe_usual articles, which
stated the^hip to be " bound for the ports of Madeira, any of the West
India Islands, and Jamaica, and to return to London ; " and in consider-
ation of"" the monthly or other wages there mentioned," the seamen sev-
erally undertook to " perform the above-mentioned voyage : " and the
master agreed with and hired them " for the said voyage at such monthly
wages, to be paid pursuant to the laws of Great Britain ; " and the seamen
boiuid themselves to do their duty, etc., as seamen " at all places where the
ship should put in or anchor during the said ship's voyage ; and not to a^o
out of the same on board any other vessel, or be on shore on any pretence
whatsoever, till the voyage was ended, and the ship discharged of her cargo,
without leave," etc., and in default thereof to be liable to the penalties men-
tioned in the statutes 2 G. 2, c. 3G and 37 G. 3, c. 73. " And it was further
agreed that no seaman, etc., shall demand or be entitled to his wages, or
any part "thereof, until the_arrival of the said ship at the above-mentioiicJ
j^rt of discharge, juid hercargo delivered," etc. It was proved tliat"nie
sluiTsailed froni Gravesend on the Uth of February, 180G, with a full
cargo of goods for Madeiraj'which she delivered there in April, and there
took in a full cargo of wine, part of which she afterwards delivered at
Dominica; and from thence proceeded to Kingston in Jamaica, where she
SECT. III.] APPLEBY V. DODS. 189
delivered other part of the wine, and took in Government stores for Port
Antonio, another port of Jamaica, which were there dcHvcred ; and then
proceeded to Martha Bray in the same island, where she arrived on the
28th of June, and delivered the remainder of the wine shipped at Madeira ;
and then loaded with sugars, etc. for London, and sailed on the 27th o£
July, and was afterwards lost at sea on the 28th of August, in the co^rse_of
""heFpassage home. And thereupon it was contended on the part of the
plaintiff, that the voyage^beinglby'tEFTermS of it divided tntoTliree~parls,
■fiTsfTcTMadcira, next to the West indies, and then home; and freigtitr
whiclTis called_the MotheFof VVage'srhaYing~Beea earned in the two first
sta<>-es of the voyage; he was entitled to recover his wages pro rata for so
many entire months (the reservation being monthly) as had elapsed between
the orighifvl'Trn;BptiTm'ofTHe~coiitrac^juid~tlie 2yth of July, when the ship
saiiedlrom Martha Bray, her last port of delivery in Jamaica! And in aid
of this construction it was remarked, thamiough^lnlhe"clause restricting
the demand for wages " until the arrival of the ship at the above-mentioned
port oTdlscliarge," the word port is there used in the singular number ; yet
that considering the whole tenor of the agreement, and that in the previous
part of it the ship is described to be " bound for the ports of Madeira," etc.
(in the plural), and that the voyage was divisible into three distinct parts,
so as for the ship to have earned freight on the two first parts, though she
were lost on her return home; the word port, in the latter part, jmist_be
construed ^reddendo singida singulis, as applicable to each^ :port_of discharge
in the course of the voyage. Lord Ellenborough, however, was of opinion
that the true construction of the articles founded on the policy of the ,
Act of the 37 Geo. 3, c. 73, excluded the plaintiff from recovering wages A Or^ ^
pro rata, inasmuch as the ship never arrived at her port of discharge, which //
he considered to be London ; and thereupon nonsuited the plaintiff. ''
Wigley now moved to set aside the nonsuit.
Lord Ellenborough, C. J. The terms of the contract in question are
quite clear and reasonable : they relate to a voyage out to Madeira and any
of the West India Islands, and to return to London ; and there is an ex-
press stipulation " that no seaman shall demand or be entitled to his wages,
or any part thereof, until the arrival of the ship at the above-mentioned
port of discharge," etc. ; which must refer to Londoii. And though the
reason of this stipulation was, no doubt, to oblige the mariners to return
home with the ship, and not to desert her in the West Indies, yet the
terms of it are general, and include the present case : and we cannot say,
against the express contract of the parties, that the seamen shall recover
pro rata, although the ship never did reach her port of discharge named.
The anxious policy of the legislature to enforce the return home of seamen
in their ships from the West Indies, in addition to the forfeiture of wages,
has also given penalties in case of disobedience to their personal
obligations. •
190 LIDDARD V. LOPES. [CIIAP. II.
Lawrence, J. The case before Lord Holt was rightly decided upon the
general principles of law, arising on the contract, whatever counter remedy
there might have been upon the bonds. And the Court of Chancery after-
wards, in giving relief to the representatives of the captain, against whom
the recovery was had at law, upon a bill filed against the ship-owners and
the company, might have considered that there was something unreasonable
in the bargain.
Per Curiam, Rule refused.
LIDDARD V. LOPES and Another.
In the King's Bench, February 7, 1809.
[Reported in 10 East, 526.]
The plaintiff brought indebitatus assumpsit for the freight of goods, and
also for the use and hire of a ship used by the defendants with a cargo
belonging to them ; with counts also for demurrage, and for work and
labor ; and at the trial before Lord Ellenborough, C. J., in London, a
verdict was taken for the plaintiff for 1000^., subject, as to the amount, to
the award of an arbitrator, if the court should be of opinion that the
plaintiff was entitled to recover upon the following case.
The plaintiff was the owner of the ship Mayflower : the defendants were
merchants in London : and on the 24th of August, 1807, an agreement in
writing, in the nature of a charter-party, was entered into between them,
whereby it was " mutually agreed between W. Liddard, owner of the ship
the Mayflower, then lying at Hull, and Messrs. Lopes aud Collins of London,
merchants, that the said ship being tight, etc., should, with all convenient
speed, proceed to Shields, and there load from the factors of the freighters
a full and complete cargo of coals in bulk, and proceed therewith to Lisbon
with tlie first convoy, and deliver the same on being paid freight, at the
rate of 451. per keel, together with 51. per cent primage, in lieu of port
charges and pilotage (the act of God, the king's enemies, fire, and all and
every other dangers and accidents of the seas, rivers, and navigation of
whatever nature and kind soever, during the said voyage, always excepted),
the freight to be paid on right delivery of the cargo. Fifteen running days
are to be allowed the said merchants (if the ship is not sooner dispatched)
for unloading the ship at Lisbon, and the customary time to load at Shields ;
and ten days on demurrage over and above the said laying days at 51. per
day. Penalty for non-performance of this agreement, 500^." Soon after
this agreement was made the ship took in a cargo of ten keels of coals
belonging to the defendants at Shields, and sailed thence on the 3d of
September, 1807, and arrived at Portsmouth on the 15th in order to join
convoy. On the 20th, the captain, having received sailing instructions,
SECT. III.] LIDDARD V. LOPES. 191
sailed with the convoy from Portsmouth, and came to an anchor off
Lymington, where the convoy was detained by contrary winds until the
15th of October ; and on the 17th the sailing instructions were recalled,
and the next day the ship returned to Spithead. The ports of Portugal
were in the beginning of November shut against British ships by the
Portuguese government, and continued shut until the French took pos-
session of Portugal on the 3()th of November ; and from that time until
and after the bringing of this action, Portugal has been occupied by the
king's enemies, and the existing government of the country has been at
war with Great Britain. On the 26th of December the plaintiff gave the
following notice to the defendants : " I beg leave to confirm my notice to
you of the 19th November ; and I hereby give you further notice to get out
the Mayflower's cargo of coals at Portsmouth ; and unless necessary pro-
ceedings are taken to that effect on or before the 31st instant, I shall give
orders to land and warehouse the same at your risk and expense. The
average account shall be made out without further delay, and I shall wait
on you for your proportion thereof. I also herewith inform you that I
reserve to myself the right of proceeding against you at law for freight,
demurrage," etc. On the 1st of January, 1808, the defendants sent the
following answer to the plaintiff: " If you land the coals by the Mayflower
you will take the consequences. We do not consent, if we are to be called
upon for freight and expenses." The cargo remained on board the vessel
at Portsmouth until the 12th of February, 1808, when it was landed by
order of the plaintiff, after a previous notice given to the defendants. In
March last, by consent of both parties, but without prejudice on either side,
the coals were sold, and produced, after deducting the invoice price and
all expenses of unloading, landing, and warehousing, a neat profit of 166/.
IBs. The question for the opinion of the court was. Whether the plaintiff
were entitled to recover a compensation for the part of^the voyage whicB^
he had performed, and for the detention of his ship at Portsmouth 1 If he
were not entitled to recover for either of these demands, a verdict was to
Be entered for the defendants.
Taddy for the plaintiff.
Storks for the defendants.
Lord Ellenborough, C. J. That was upon the ground of there having
been an acceptance of the cargo by the owner in the course of the voyage,
which showed his election to receive his goods at that place, instead of
having them sent on to the place of their original destination ; but the
acceptance of the goods was the very substance of the new implied contract
m Luke v. Lyde.i But here there has been no agreement to accept the
goods ; but they were landed and sold without prejudice to either party.
The case of Luke v. Lyde has been often pressed beyond its fair bearing ;
but the true sense of it has been explained by my brother Lawrence in
2. ^ 2 Burr. 882.
HI''
/-
/
192 APPLEBY V. MYERS. [CHAP. IL
Cook V. Jennings,^ and my brother Le Blanc in Mulloy v. Backer.^ Then
what does this case amount to. The parties have enteredjnto a special
contract, by which freight is made' payable in one event only, that of a
right delivery of the'cargoaccordmgJo,theJer^ the contract : andUhat_
event has not tn.kftrij)lacej__there has been no such delivery ; and con-
sequently the plaintiff isno^entitJed to recover : he should have providjd_
fii his contracTfor't^jmergency which has arisen.
^i^fUufiam Postea to the defendants.
APPLEBY V. MYERS.
In the Exchequer Chamber, June 21, 1867.
[Reported in Law Reports, 2 Common Pleas, 651.]
Appeal from a judgment of the Court of Common Pleas, in favor of the
plaiutitfs upon a special case, the report of which will be found ante.
Vol. I., p. 615.3
1 7 T. R. 381. ^ 5 East, 316.
8 This was an action brought to recover 419Z. for work done and materials provided
by the plaintiifs, engineers, for the defendant, under the circumstances hereinafter men-
tioned. The following case was stated, by consent, without ])leadings, for the opinion
of the court : —
On the 30th of March, 1865, the plaintiffs entered into an agreement with the
defendant, which was lieaded, "Specification and estimate of engine, boiler, lifts, etc., for
B. Meyers, Esq., Southwark Street. Messrs. Tillott & Chamberlain, architects. 30th
March, 1865." This contract contained ten distinct parts or divisions ; namely, 1,
boiler ; 2, engine ; 3, shafting ; 4, lifts ; 5, shafting ; 6, diying-room ; 7, copper pans ;
8, tanks ; 9, pump ; 10, steam-boxes, — under each of which headings were i^articular
descriptions of the work to be done in connection with each respectively, and the prices
to be charged for the same ; and the document concluded with these words : —
We offer to make and erect the whole of the machinery of the best materials and
workmanship of their respective kinds, and to put it to work, for the sums above named
respectively, and to keep the whole in order, under fair wear and tear, for two years from
the date of completion. All brickwork, carpenters' and masons' work, and materials are
to be provided for us ; but the drawings and general instructions required for them to
work to will be proNaded by us, subject to the architects' approval.
(Signed) Appleby Brothees.
The total cost of the above works, if they had been completed under the contract,
would have amounted to 459^
On the 4th of July, 1865, a fire accidentally broke out on the premises of the defend-
ant in Southwark Street, which entirely destroyed the said premises and the worka
which then had been erected thereon by the plaintiffs in part performance of the con-
tract above set out.
At the time of the fire, the works contracted to be erected as aforesaid had not been
completed.
The premises upon which the several works were to be erected were the property
SECT. III.] ArrLEBY V. MYEUS. 193
Hannen, Lumley Smith with him, for the defendant.
IIoll for the plaintiffs.
The judgment of the court (Martin, B., Blackburn, J., Bramwell, B.,
Shee and Lush, JJ.) was doHvered by
Blackburn, J. This case was partly argued before us at the last
sittings, and the argument was resumed and completed at the present
sittings.
Having had the advantage of hearing the very able arguments of Mr.
IIoll and Mr. Hannen, and having during the interval had the opportunity
of considering the judgment of the court below, there is no reason that we
should further delay expressing the opinion at which we have all arrived ;
which is, that the judgment of the court below is wrong, and ought to be
reversed.
The whole question depends upon the true construction of the contract
between the parties. We agree with the court below in thinking that it
sufficiently appears that the work which the plaintiffs agreed to perform
could not be performed unless the defendant's premises continued in a fit
state to enable the plaintiffs to perform the work on them ; and we agree
with them in thinking that if by any default on the part of the defendant
his~pren'ii5es were rendered unfit to receive the work, the_plaintiffs would
have had the option tosue the defendant for this default, or to treat the
c^n^ract as rescinded and sue on a quanUimTmeruit. But we do not agree
I with them m thinkuig tbat theg~was3an_aMolili^4)i^
i the defendant that the premises should at all events continue so fit. We
I think that where, as in the present case, the premises are destroyed with-
I out Fault oTTeitheFside, it is'a iiiisfortune equally attecting both partiesT—
excusing both from further performance of the contract, but giving a cause
|of"action to neither. " ^ "
i Then it was argued before us that, inasmuch as this was a contract of
that nature which would in pleading be described as a contract for work,
[labor, and materials, and not as one of bargain and sale, the labor and
jmaterials necessarily became the property of the defendant as soon as they
'of the defendant, in his occupation, and under his entire control. The plaintiffs had
jaccess thereto only for the purpose of performing their contract.
i At the time of the fire, portions of the items Nos. 1 to 8 were erected and fixed, and
jsome of the materials for the others were on the premises.
I The defendant had not completed the carpenters' and masons' work to be prepared by
'him under the agreement.
The tank had been erected by the plaintiffs, and was used by the defendant by
taking water therefrom for the purposes of his business ; but the other apparatus con-
nected with it, as specified in No. 8, was not completed. The plaintiffs' workmen were
istill engaged in continuing the erection and completion of the same at the time of the
jfire.
j The question for the opinion of the court was, whether under the above circumstances
the plaintiffs were entitled to recover tlie whole or any portion of the contract price. —
Appleby i;, Meyers, L. R. 1 C. P. 615. — Ed.
VOL. II. — 13
194 APPLEBY V. MYERS. [CHAP. II.
were worked into his premises and became part of them, and therefore were
at his risk. We think that, as to a great part at least of the work done in
this case, the materials had not become tlie property of the defendant ; for
we think~~that "the plaintHTs, who were to complete the whole for a fixed
sum, and keep it in repair for two years, would have had a perfect right, if
they thought that a portion of the engine which they had put up was too
slight, to change it and substitute anotlier in their opinion better calculated
to keep in good repair during the two years, and that without consulting or
asking the leave of the defendant. But, even on the supposition that the
materials had become unalterably fixeiJ to the defendant's premises, we do
not think that under such a contract as this the plaintiffs could recover any-
thing unless the whole work was completed. It is quite true that mate-
rials worked by o^e into the property of another become part of that
property. This is equally true, whether it be fixed or movable property.
Bricks built into a wall become part of the house ; thread stitched into a
coat which is under repair, or planks and nails and pitch worked iuto a
ship under repair, become part of the coat or the ship ; and therefore,
generally, and in the absence of something to show a contrary intention,
the bricklayer or tailor or shipwright is to be paid for the work and mate-
rials he has done and provided, although the whole work is not complete.
It is not material whether, in such a case, the non-completion is because
the shipwright did not choose to go on with the work, as was the case in
Roberts v. Havelock ; ^ or because in consequence of a fire he could not go
on with it, as in Menetone v. Athawes.^ But, though this is the prima facie
contract between those who enter into contracts for doing work and supply-
ing materials, there is nothing to render it either illegal or absurd in the
workman to agree to complete the whole, and be paid when the whole is
complete, and not till then ; and we think that the plaintiffs in the present
case had entered into such a contract. Had the accidental fire left the
defendant's premises untouched, and only injured a part of the work which
the plaintiffs had already done, we apprehend that it is clear the plaintiffs
under such a contract as the present must have done that part over again,
in order to fulfil their contract to complete the whole and " put it to work
for the sums above named respectively." As it is, they are, according
to the principle laid down in Taylor v. Caldwell,^ excused from completing
the work ; but they are not therefore entitled to any compensation for
what they have done, but which has without any fault of the de-
' fendant perished. The case is in principle like that of a shipowner who
has been excused from the performance of his contract to carry goods to
their destination because his ship has been disabled by one of the excepted
perils, but who is not therefore entitled to any payment, on account of
the part-performance of the voyage, unless there is something to justify
1 3 B. & Ad. 404. 2 3 Burr. 1592.
8 3 B. & S. 826 ; 32 L. .J. Q. 15. 1G4.
SECT. III.] HOPPER V. BURNESS. 195
the conclusion that there has been a fresh contract to pay freight 2^^o
rata.
On the argument, much reference was made to the Civil Law, The
opinions of the great lawyers collected in the Digest afford us very great
assistance in tracing out any question of doubtful principle ; but they do
not bind us ; and we think that on the principles of English law laid down
in Cutter v. Powell,^ Jesse v. Roy,^ Munroe v. Butt,^ Sinclair v. Bowles,*
and other cases, the plaintiffs, having contracted to do an entire work for
a specific sura, can recover nothing unless the work be done, or it can be
shown that it was the defendant's fault that the work was incomplete, or
that there is something to justify the conclusion that the parties have
entered into a fresh contract.
We think, therefore, as already said, that the judgment should be
reversed. Judgment reversed.
HOPPER V. BURNESS.
In the Common Pleas Division, February 23, 1876.
[Reported hi Law Reports, 1 Common Pleas Division, 137.]
Declaration for freight, and for money received for the plaintiff's use.
Plea {inter alia), never indebted.
Issue.
The facts, as proved at the trial before Huddleston, B,, at the last
Liverpool summer assizes, were as follows : —
The plaintiff, a shipowner, had chartered a ship to the defendant to cany
a cargo of coals from Cardiff to Point de Galle, at a freight of 2\s. per ton
on_the quantity delivered at the latter place. The defendant duly shipped
a cargo of 704 tons of coals. On her voyage the sliip met with bad weather,
and suffered sea damage^and it was necessary to repair her at the Cape of
Good Hope. For this purpose the captain, not having any funds, and not
being able to raise any on bottomry or otherwise on the owner's credit, sold
a portion of the coals, amounting to 470 torn, to defray the expense of the
repairs, and having completed the repairs, sailed to the port of destination
with the remainder of the cargo, 42 tons having been jettisoned, and 470
tons sold as before mentioned. The price of coals being very high at the
CapeofGood Hope, it turnedoiit that the coals sold there fetched 3/. 3s.
C(/. per ton, a much higher price than if they had gone on to Point de Galle.
Thecoals cost originally \l. per ton. There was a general average state-
ment made up, and in accordance with that statement the defendant re-
ceived from the plaintiff the net proceeds of the coals sold at the Cape of
1 6 T. R. 320 ; 2 Smitli's L. C. 1. ^ I Q. M. & R. 316.
» 8 El, & Bl. 738. 4 9 B. & C. 92.
196 nori-EK v. bukness. [chap. ii.
Good Hope, but the statement did not make any allowance in respect of
freight on those coals to the plaintiff. The plaintiff contended that he was
entitled to pro rata freight in respect thereof, and consequently sought to
recover bact the amount of such freight On theselacts the yerd_ict was
entered forllie plamtlff^r the freight claimed, with leave to the defendant
to move to enter a nonsuit or a verdict, on the ground amongst others,
that there was no liability ou the part of the defendant to pay the freight
claimed.
A rule nisi had been obtained accordingly.
Ilerschell, Q.C., and Crompion showed cause.
Benjamin, Q.C., and Myhurgh supported the rule.
Brett, J. In this case the plaintiff seeks to recover either in respect of
freight or money received to his use. He cannot recover the sum of money
which lie claims as money had and received unless he is entitled to freight.
And so tlie main question is whether he is entitled to the freight. It is to
be taken that the circumstances were such that the captain by the general
maritime law was justified in selling part of the charterer's cargo, and that
such sale was not a wrongful act. Such a right arises, although it is the
duty of the shipowner to repair the ship ultimately at his own expense.
The coals so sold fetched inore at the Cape of Good Hope than they
would have done at Point de Galle, and the suggestion is, that under these
circumstances the plaintiff is entitled not only to freight on the cargo ac-
tually delivered at the port of destination, but also to freight in respect of
the coals sold at the Cape of Good Hope. Now, it is obvjousjliat the^nly^
freight expressed to be payable by the terms of the charter is a freight of
21s. per ton on cargo delivered at i^oint "de Galle, so tliaTThls'freight now
claimed is noT the charter frefght iTiiow not how freight can become
due under such a charter as this in respect of goods not carried to the port
of destination otherwise than with reference to the doctrine of freight pro
rata. What, then, is the principle governing the question whether such
freight is payable ? It is only payable when there is a mutual agreement
between the charterer or shipper and the captain or shipowner, whereby the
latter being able and willing to carry on the cargo to the port of destination,
but the former desiring to have the goods delivered to him at some inter-
mediate port, it is agreed that they shall be so delivered, and the law then
implies a contract to pay freight pro rata itineris. Do the present circum-
stances come within that principle 1 The captain here is not able and will-
ing to carry the coals on ; he puts it out of his power to do so by the act
of selling them. Again, the charterer has no option with regard to the
sale at the intermediate port. Tlie essential grounds of tlie inference which
the law draws of an implied contract to pay freight joro rata do not exist.
It is said by Mr. Cromj)ton that the charterer has an option. I agree that
he has, but I do not think any implication of a promise to pay freight pro
rata can be drawn from it. He has, I think, an option to treat the pro-
SECT. III.] HOPPER V. BURNESS. 197
ceeds of the sale as a loan, or he may say, " You have sold my goods
against my will, and though by the maritime law that is not a wrongful
sale, still I am entitled to and claim an indemnity against any loss occa-
sioned by the sale." If he selects the former alternative, what is there to
«-i\'e rise to an implication that freight pro rata is payable? If he thinks
that the goods have fetched more at the intermediate port than the re-
mainder will do at the port of destination, why may he not treat the trans-
action as a loan at once and sue for the amount before the ship arrives at
her destination 1 If the ship should be lost on her voyage between the
intermediate port and the port of destination the charterer has no option ;
he cannot ask for an indemnity on the footing that the goods would have
fetched more at the port of destination. The basis of the claim of in-
demnity in such a case is the supposition that the goods would fetch more
at the port of destination than they did when sold. If the ship is lost the
charterer or shipper never can claim an indemnity against the shipowner;
the adventure is lost by perils of the sea. But I apprehend, though he
could not claim an indemnity, he could treat the transaction as a forced
loan, and claim the amount of the price for which the goods were sold.
If the goods fetch more at the jnterjBcdiate port, the owner of the cargo
naturally wouI3~eIectto treat the matteras a loan ; but when he thinks it
for his interest to insist and does insist on an indemnity on the footing
that the~value of the goods musiTbe trealed as if they were carried to their
destination, then he must allow for the freight that would havg^be¥n earned!
by carrying them_tbere^ Here the defendant had a right to treat the pro-'j
ceeds of the sale as a loan, and did so, and under those circumstances I see
nothing to raise an implication of a liability to pay freight pro rata. This
decision may seem hard, but the hardship, if any, arises from tlie form of
the contract entered into. The loss to the shipowner is a loss by maritime
perils, and the answer to any argument of hardship seems to me to be that
this is a case in which the proper remedy is by insurance of freight.
Archibald, J. This question turns on whether or no the plaintiff is
entitled to pro rata freight. I think that under tEe^ circumstances he is
not. I take it that under a charter such as this there can be no right to
freight unless the goods are delivered according to the charter, or a new
contract is made between the parties, or facts exist from which such new
contract may be inferred. Now can such a new contract be inferred here 1
The facts from which we are asked to infer one are that the goods have
been sold justifiably in a case of necessity, and that the amount of the pro-
ceeds has been paid to the defendant. I do not think these facts alone are
sufficient to raise the implication suggested. The proceeds might be re-
ceived under such circumstances as to give rise to an implication of a con-
tract to pay freight, but the mere receipt of the proceeds is not suflficient.
Baillie v. Mogdigliani ^ has been referred to as establishing that the receipt
1 6 T. Ft. 421, n.
?^
X
198 METCALFE V. THE BRITANNIA IRONWORKS CO. [CHAP. II.
of the proceeds of a sale at an intermediate port is tlie same as tliat of the
goods themselves ; but the case of Hunter ». Prinsep^ shows that the in-
ference cannot be drawn in that absolute way. I agree that the case in
which the implication can be drawn is when the captain is able to cany
the goods on and the charterer chooses to have them delivered short of the
port of destination. Here the charterer had no option. The sale though
made justifiabh% under circumstances of necessit}', was a disposition of hia
property without his having any option in the matter. The true view
seems to me to be that the transaction is in the nature of a forced loan,
and consequently that the charterer is entitled to recover the amount of
the proceeds of the sale as a loan.
The cases also establish that if the vessel reaches her destination the
cargo owner may, instead of treating the transaction as a loan, claim com-
pensation by way of indemnity. He would only do that if the goods real-
ized less at the intermediate port than they would have done at the port
of destination. It does not seem to me that the mere receipt of the amount
of the proceeds is equivalent to a receipt of the goods at the intermediate
port, or affords sufficient ground for an inference that the defendant agreed
to pay freight 2^'>'o rata.
LixDLEY, J. I am of the same opinion. The goods never were delivered
at the port of destination, therefore the freight was not earned under the
charter. The whole argument of the plaintiff, therefore, rests upon the
fact that the defendant received the amount of the proceeds of the sale.
If the transaction could be treated at the option of the defendant as a loan
of money it is clear that the receipt by the defendant of the money was not
equivalent to receipt of the goods at an intermediate port, and the argu-
ment wholly fails. The rule must be made absolute.
Eule absolute.
METCALFE v. THE BRITANNIA IRONWORKS COMPANY.
In the Queen's Bench Division, July 11, 1876.
[Reported in Law Reports, 1 Queen's Bench Division, 613.]
Cohen, Q. C, Beresford with him, for the plaintiff.
W. Williams, Q. C, Hollams with him, for the defendants.
CocKBUUN, C. J.'^ This is an action brought to recover a sura due for
freight for the conveyance of a cargo of iron bars, shipped under two
charter-parties on board the plaintiff's vessel, the Meredith, to be carried
from Middle.sborough-on-Tees to Taganrog on the sea of Azof, "or so
1 10 Ea.st, 378.
'^ The facts lieinR sufficiently stated in tlie opinion of Cockburn, C. J., the statement
of facts lias been omitted. — Ed.
SECT. III.] METCALFE V. THE BRITANNIA IKONWOIIKS CO. I!j9
T)fifl.r ^hereto as the ship could safely get." The defendants were the char-
terers of the vessel. By the bills of lading, signed by the master, as well
as by the^harter-parties, tticjrojrwMlMI£e_.deIixm^ at^^
ganrog. It was consigned to the RostofF and Wladikowkese Railway Com-
pany, at the latter place.
The cargo having been taken on board, the ship started without delay
on the voyage as agreed on; and arrived on the 17th of December at
Kertch, a port distant from Taganrog about thirty miles. On arriving
at Kertch, the master learned that the sea of Azof was blocked up with
ice, and the navigation suspended, the effect of which was that the further
conveyance of the cargo to its destination was rendered impracticable till
the ensuing spring, the navigation being usually closed till the end of April.
Relying on the terms of the charter-party, which, as has been stated, pro-
vided that the ship should proceed to Taganrog, "or so near thereto as
she could safely get," the master, finding that he could got no nearer to
Taganrog than Kertch, conceived that he was entitled to land the cargo at
the latter place, and proceeded accordingly to discharge and land it. In
so doing, he acted in direct defiance of the opposition of the agents of the
charterers at Taganrog, to whom he had notified what he was about to do,
and who, having thus become aware of it, gave him express notice not to
land the cargo at Kertch, and that if he did so he would be held liable
under the charter-party. There being no one to receive the cargo, the
master placed it under the charge of the custom-house authorities. From
the latter it was claimed by an agent of the EostofF and Wladikowkese
Railway Company, the consignees, and on the production of the charter-
parties and bills of lading possession was delivered to their agent by the
authorities, notwithstanding a claim by the master that it should be re-
tained till his freight was paid. Upon taking possession, the agent of the
consignees, who must be presumed to have had full authority for the pur-
pose, delivered to the master, no doubt by the direction of the authorities,
a receipt in these terms : —
" On the power of the charter-party and the bill of lading passed to
me by the agents of the Rostofi^ and Wladikowkese Railway Company, \1 Ic^cL.e^^ /-
I hereby declare that I have received the cargo of the S.S. Meredith, com-
posed of six thousand five hundred and seventy-eight (G578) bars of railway
iron. This receipt to be the only one given, and all others to have no value.
"Kertch, 15/27 December, 1873."
Upon these facts I entirely concur in thinking that the plaintiff* is not
entitled to recover the full freight. The case of Schilizzi v. Derry ^ estab-
lished that when a charter-party speaks of a vessel, bound to a particular
port, discharging "as near as she can get " to such port, this must be taken
tojuean some place " within the ambit " of the port ; and Kertch certainly
cannot be said to be within the ambit of the port of Taganrog.
1 4 El. & Bl. 873 ; 24 L. J. Q. B, 193.
200 METCALFE V. THE BRITANNIA IRONWORKS CO. [CIIAP. II.
I also concur in thinking that the receipt given by the agent of the con-
signees does not amount to an admission of the " right delivery " of the
cargo. It amounts to no more than an admission of the delivery of tlie
cargo at Kertch, which is not a "right delivery" of it so as to entitle
the owner to the full freight.
But it appears to me that the acceptance of the cargo by the consignees^
and the receipt thus given by their authorized agent, are very material
fixcts in_determining the further question with which we have to deal,
namely, whether the plaintiff, the shipowner, is here entitled to frcjiiht
pro rata itineris.
I agree that according to the terms of an ordinary charter-party, or bill
of lading, the whole v^j'age for which the freight is agreed to be paid must
be accomplished before any freight becomes payable. And I agree that the
master cannot, by wrongfully stopping short of the place of destination,
compel the owner of the goods to take them, and pay the freight even for
the part of the voyage performed, any more than the charterer, on the other
hand, can insist on having the cargo delivered at an intermediate place, so
as to deprive the shipowner of the opportunity of earning his full freight.
If he desires to have his goods short of their original destination, unless
some arrangement is come to between them, he must satisfy the shipowner
for the entire freight as fixed by the charter-party.
But, it is obvious, that, while such is the absolute right of each of the
parties to the charter, this right may be varied or waived ; and that, while
the shipowner may be willing to forego his right to earn the entire freight,
on being paid a ratable part for so much of the voyage as has been per-
formed, the goods-owner, on the other hand, may be willing to take the
goods at an intermediate place, and to waive the conveyance of the goods
to their original destination, paying a proportionate part only of the freight,
all claim to the residue being abandoned. And such an arrangement, in
substitution of the original contract, may not only be express, but may
also be implied from the circumstances and the conduct of the parties ; aa
was done in the case of The Soblomsten ; ^ and ought to be so imi^licd
where justice and equity require it.
Where such an express arrangement has been come to, of course no
difficulty exists. The case in which the question whether such an ar-
rangement is to be implied usually arises, is where the ship becomes dis-
abled by some vis major, and it becomes necessary to land the cargo at an
intermediate port, where there arc no means of sending it on, and it is
there taken possession of by the owner, or sold by the master for the bene-
fit of those concerned. Nothing could apparently be more unjust than
that, having had the benefit of the conveyance of the cargo so far on its
way, the owner, if he has derived benefit from its conveyance so far, should
be released from the obligation of paying a proportionate part of the freight.
1 L. "R. 1 A. & E. 293.
SECT. III.] METCALFE V. THE BRITANNIA IRONWORKS CO. 201
No doubt, under such circumstances, it becomes necessary for the master,
if he desires to earn the freight, either to repair his ship, or to procure an-
other in which to send on the cargo. But it may be that the ship cannot
be repaired, and that no other ship can be procured, or not without such a
dehiy as w^ould be fatal to the goods, or to the adventure. Under these
circumstances tlie owner of the goods is not bound to take to them if un-
wilhng to do so. If they are not worth paying the freight upon, he may, ,'!
refuse to accept them ; but if he accept and dispose of them, ought we not j , v,
to iniply an undertaking on his part to pay for the conveyance of thenijo i j
faras it has gone 1
Such was the view taken by Lord Mansfield and the court of King's
Bench, in conformity with the rule laid down by the old authorities on
maritime commercial law, in the well-known case of Luke v. Lyde.^ There
a cargo of salt fish having been shipped on account of the defendant, a
merchant in England, on board the plaintiffs' ship to be conveyed from
Newfoundland to Lisbon, the ship, when within a few days' sail of Lisbon,
had been taken by a French privateer, but had afterwards been recap-
tured and brought to England ; whereupon the defendant claimed and ob-
tained possession of the cargo. An action of assumpsit having been brought
by the owners of the ship to recover freight pro rata, Lord Mansfield, in
an elaborate judgment, after referring to the old authorities on maritime
law, decided in favor of the plaintiffs, — not upon any fiction of a substi-
tuted contract, or of a dispensation of part of the voyage originally agreed
on, but on the broad principle of maritime law, that, the voyage having
been interrupted without any fault of the shipowner, the merchant, who
has had the benefit of partial conveyance, if he takes the goods, must pay
freight pr'o rata.
In so holding the Court of King's Bench appears to me, I must say, to
have decided according to justice and good sense.
In the subsequent case of Baillie v. Mogdigliani ^ a ship bound from Nevis
to Bristol had been taken by a French ship and condemned in a French
prize court ; but the sentence of condemnation was afterwards reversed, and
restitution ordered. In the mean time, however, the ship and cargo had
been sold. The merchants received the proceeds and paid freight to the
master pro rata itineris ; and the goods having been insured, they brought
an action against the insurers to recover the amount of freight so paid. It
was held that they could not recover ; but Lord Mansfield said : " As
between the owners of the ship and cargo, in case of a total loss, no freight
is due ; but as between them no loss is total where part of the property is
saved, and the owner takes it to his own use. In this case the value of
the goods was restored in money, which is the same as the goods ; and,
therefore, freight was certainly due 2>ro rata itineris.^''
1 2 Burr. 882 ; 1 W. Bl. 190, s. c. nom. Luke v. Lloyd.
■■^ Park on Insurance, ch. 11. 8tli ed. p. 116.
202 METCALFE V. THE BRITANNIA IRONWORKS CO. [CIIAP. IL
The subsequent case of Cook v. Jennings ^ might at first sight appear to
conflict witli the foregoing authorities, inasmnch as, the ship having .been
wrecked on the voyage, but the goods having been saved, the merchant,
who had taken possession of them, refused to pay freight, and the action
having been brought to recover it 2^0 rata, it was held that the action
would not he. But the decision turned on the form of action. The plain-
tiff, having sued on the charter-party, wliich was under seal, had declared in
covenant ; and as on reference to the charter-party it appeared that the
freight was payable on the right delivery of the cargo at the port of desti-
nation, it was held that until this condition had been complied with no
freight became payable under the charter; and that the contract being
under seal, no implied assumpsit could be raised. Lawrence, J., puts the
case on the right ground : " 1 agree," he says, " with the plaintiff's coun-
sel, that whether the contract be by parol or under seal, the operation of
the law on it is equally the same. When a ship is driven on shore it is the
duty of the master either to repair his ship or to procure another, and hav-
ing performed the voyage he is then entitled to his freight , but he is not
entitled to the whole freight unless he perform the whole voyage, except in
cases where the owners of the goods prevent him ; nor is he entitled pro rata
unless under a new agreement. Perhaps the subsequent receipt of these
goods by the defendant might have been evidence of a new contract be-
tween the parties ; but here the plaintiff has resorted to the original agree-
ment, under which the defendant only engaged to pay in the event of the
ship's arrival at Liverpool. That event has not happened, and therefore the
plaintiff cannot recover in this form of action."
The case of Hunter v. Prinsep^ is also an authority which, at first sight,
may appear to conflict with that of Luke v. Lyde.^ A vessel, bound from
Honduras to London, having been captured and recaptured, and taken by
the recaptors into St. Kitts, was there wrecked, but the cargo was saved.
The master, acting bona fide for the advantage of all concerned, but with-
out orders or authority from the owner of the cargo, and apparently with-
out any necessity arising from inability to forward the goods, having
obtained an order from the Yicc-Admiralty Court of the island, which
order thitt court had no power to make, sold the cargo. The plaintiff; the
owner of tlie cargo, having brought an action for money had and received
against the shipowner to recover the amount of the proceeds, the defendants
sought to set off the amount of freight pro rata. But Lord Ellenborough,
delivering the judgment of the court of King's Bench, held that, inasmuch
as by the terms of the charter-party, which was under seal, the freight was
to be paid in particular modes and proportions, "on a right and true de-
livery of the cargo," no freight had become payable under the chartfir-
party ; and that, as the sale of the goods by the master, which had been
made without the assent of the plaintiff, and without necessity, was un-
1 7 T. K. 381. 2 10 East, 378. » 2 Burr. 882.
SECT. III.] METCALFE V. THE BRITANNIA IRONWORKS CO. 203
lawful and the conveyance of the goods to their destination had thus been
rendered impossible by the tortious act of the master, the plaintiff, the
freif'hter, could not be taken to have dispensed with the further conveyance
of the goods according to the terms of the original contract.
It was more difficult to deal with the argument urged on behalf of the
defendants, that, by bringing an action to recover the proceeds of the sale,
the plaintiff would receive the equivalent of the goods, and tlierefore, vir-
tually the goods themselves, and consequently became liable for the 2:>ro rata
freif'ht, as much as if he had received possession of the goods themselves on
the spot. Nor, in my opinion, was any satisfactory answer given. It was
not enough, as it seems to me, to say that the sale was tortious on the part
of the master. By waiving the tort, and suing in assumj)sit for the pro-
ceeds of the sale, the plaintiff became liable — certainly in point of justice,
and, as it seems to me, in law — to the claim of the defendants for partial
freight by way of set-off, just as much as if he had taken to the goods
themselves and sold them where they were.
Lord Ellenborough, it is true, puts the matter on such a footing as
would render it impossible ever to imply a dispensation by a freighter of
performance of part of a voyage. " The general property in the goods," he
says, " is in the freighter ; the shipowner has no right to withhold posses-
sion from him unless he has either earned his freight" — by which the
Chief Justice evidently means the entire freight — " or is going on to earn
it. If no freight be earned, and he decline proceeding to earn any, the
freighter has a right to the possession." ^ It is to be observed, however,
that Lord Ellenborough does not seem to have had present to his mind
the possibility of a case in which partial freight could be earned. In the
case before him the ship had been taken out of her course as the result of
her capture, and had been taken into St. Kitts by the recaptors. It is
difficult to see how any freight could have been earned. The case of Luke
V. Lyde ^ does not seem to have been dealt with by the court.
In the later case of Ylierboom v. Chapman,^ however, the question of
pro rata freight presented itself as the point for decision, and a similar
judgment was given under still more striking circumstances. A cargo of
rice having been- shipped at Batavia, to be delivered at Eotterdam, and the
ship having been compelled by a hurricane to put into the Mauritius, the
rice was found to have been damaged, and to be in a state of rapid putre-
faction, and it was, therefore, as a matter of necessity, sold by the master,
of course without the knowledge of the owner, whom at that distance it
was, under the circumstances, impossible to consult. An action having
been brought against the shipowner by the freighters to recover the pro-
ceeds of the sale, the defendant, though the action was in assumpsit, was
held not to be entitled to set off the freight pro rata. I confess myself
wholly unable to follow the reasoning of the court. It seems to have been
1 10 East, 394. 2 2 Burr. 882. » 13 M. & W. 230.
204
METCALFE V. THE BRITANNIA IRONWORKS CO. [CIIAr. II.
admitted that, as the goods must otherwise have perished, the master had
authority, as agent of the shippers, to sell. Nevertheless, it was held that
his thus dealing with the goods as agent for the freighters, although it
might amount to an acceptance of the cargo by the latter, did not operate
on their part as a dispensation of the conveyance of the goods to their des-
tination, because, as the shipowner was not in a condition to carry it, it
could not be supposed that the freighters would dispense with the per-
formance.
Here, again, no notice is taken of the case of Luke v. Lyde,^ in which, as
I have before said, Lord Mansfield and the Court of King's Bench put the
right to recover freight j)''''^ rata, not on any dispensation by the freighters,
or new contract in substitution for the charter-party or bill of lading, butou
the principle of maritime commercial law, that the merchant, if he takes
the goods short of their destination, when the shipowner, without any de-
fixult on his part, but through the operation of a vis major, is prevented
from carrying them on, is bound, having had the benetit of their carriage
so far, to pay freight pro rata.
The argimient of Lord Ellenborough that, where the shipowner is un-
\ able to forward the cargo, and so to earn the freight, the right of the
shipper to the possession of it at once arises without any corresponding
right in the shipowner to freight pro rata, may hold where the circum-
stances give the master no authority to dispose of the goods. But it ob-
Iviously becomes a very different thing where, the ship having become
jdisabled, and the goods damaged, the duty is cast upon the master to dis-
fpose of the cargo in the interest of the owner of it.
Thejegalposition of the master of a vessel, disabled from_carrying on
the cargo, at an intermediate port may be stated thus : If he desires to
earnThe"entire freight he must cause_the ship to bg_reEaired.»-Qr_Sfind-on,
But if he chooses to forego the freight, he is
the ex-
the cargo in another vessel.
not bound to do either^ The ship may be" not worth repairinc
pense of hiring another ship may be greater than the freight to be earned.
Having done his best to protect the goods, he may leave them to be dealt
with by the owners, the only consequence being that he forfeits the freight.
But it may be that the master has no option ; that the ship is incapable of
being repaired, and that no other can be procured, while the circumstances
are such as to render it certain that it will not be worth the while of the
owner of the goods, either owing to the locality or the distance at which
they are found, or owing to their damaged condition, to send out a ship to
bring them on ; or it may be that the^goods are perishable, and would bc-
come worthless by anydelay^ Under such circumstances, if the goods-
owner cannot be communicated with, and his instructions taken, withiu
such time as the master can reasonably be expected to wait, the latter, as
the servant and representative of the shipowner, has cast upon him tbe^
1 2 Burr. 882.
SECT. III.] METCALFE V. THE BRITANNIA IRONWORKS CO. 205
duty of actiug for tlie goods-owner and disposin^^ of the cargo to the best
advantage. This obligation is tacitly implied in the chartei-- party or bill of
ladiu"', and, like every obligation to do a thing, involves an authority from
the party to whose benefit the obligation enures to do the thing which is
the subject-matter of the obligation. Where, therefore, the master, in dis-
posing of the cargo, acts bona fide and with reasonable judgment and
discretion, the goods-owner will be bound.
The law, as thus laid down by Lord Stowell in the case of The Grati- ^
tudine,^ has since been universally acquiesced in. This being so, the posi- , »^
tion of Lord Ellenborough that, where the goods are not about to be j
carried on, possession may be demanded by the freighter, and if the demand m^
be not yielded to, will be wrongfully withheld, appears inajiplicable to the "•
case of a master so circumstanced; and that of Parke, B., that the ship^ T""
owner not being able to carry or send on the goods, it cannot be supposed ,i
that the shipper would waive the further conveyance of them, seems equally pv
so, where the master is acting as the agent of both parties, and doing that (^ ^
which is most conducive to their common advantage. If the master, under ^ [■
these circumstances, becomes, to use the words of Willes, J., in Notara v.
Henderson,^ the " agent of necessity " of the shipper, he becomes so as the
servant of the shipowner, and by virtue of the original contract, which '^ ^
therefore must be taken to be still subsisting, though the goods cannot be J I i
carried on. If the law thus casts on him the duty of acting as agent for the '^ K\
shipper, it does not take from him the character of agent for the shipowner, |^ v
or the duty of looking to the interest of the latter as well as to that of the vj v*
former. If he becomes clothed with the character of agent for the goods- ~
owner, he acquires authority to do what the latter, if on the spot, might
do, namely, dispense with the further transport of the goods.
It is, moreover, clear that cases may occur in which it would be for the
manifest advantage of the freighter that the goods should be sold, and the
freight deducted : as, for instance, where the goods, being at an interme-
diate poi-t, are found to have become so damaged that, if carried on to
their destination, they will be worthless when they reach it, as was the
case in Notara v. Henderson.^ That case is an express authority for saying,
that the master may not carry on a damaged cargo, for the purpose of earn-w
ing the freight, where the necessary effect will be the destruction or deteri-
oration of the goods. In such case, at all events where the damage cannot
be arrested at a reasonable expense of time or money, it becomes the duty
of the master to sell ; but it is obviously only equitable that if the master,
as the agent of the shipowner, is prevented, in the interest of the shipper,
from_earning the entire freight at the expense of the cargo, the shipper,
in consideration of the benefit he thus secures, shall at least pay the freight
for so much of the voyage as shall have been performed.
The cases on which I have been commenting, if in point, arc of course
1 3 Eob. Adm. 240. 2 l. R. 7 Q. B. 230. 3 L, R. 5 Q. B. 346 ; 7 Q. B. 225.
206 METCALFE V. THE BRITANNIA IRONWORKS CO. [CIIAP. II.
binding on us, and can only be reviewed, as I bope they will be if the occa-
sion should arise, in a Court of Appeal. But they do not go the length of
overruling Luke v. Lyde.^ All they do is to establish that where the
master takes upon himself to sell the cargo without express authority from
the shipper, though he may be perfectly justified in so doing, as the agent
of the latter, by the circumstances in which he is placed, the shipowner
cannot recover the pro rata freight. They do not touch the case in which
the goods come to the hands of the owner short of their destination, and
the owner has derived benefit from their conveyance so far, which is what
has occurred in the case before us.
In deciding a question of English law, foreign law is, of course, of no
authority. Xevertheless, as in a matter of commercial law it is of impor-
>' tance that the rules of commercial nations shall, as far as possible, be the
same, it may not be unimportant to see what is the state of the Continental
law on this subject. The law will be found in the French Code de Com-
• raerce. Article 296 ; in the Italian Codice di Commercio, at Article 403 ; in the
, Spanish Code, Articles 777 and 778 ; in the Code of the Netherlands, Article
; 478 ; in the Prussian Code, Articles 170I-G ; in the Russian Code, Article
^- 747 ; in the German Code, Articles G32, 633. The rule in all these is the
same, namely, that the master of a disabled ship is bound, if his ship can-
> not be repaired, to procure, if possible, another to carry on the goods. If
both are impossible, he may then abandon the goods to the owners, and
twill be entitled to his freight pro rata, or, as it is termed in the German
law, the distance freight. The German law has, however, this qualification.
) that the freight payable shall not exceed the value of the goods.
' ^ In the present instance, the charterers having had the cargo brought
' ■ from the Tees to within thirty miles of Taganrog, nothing could be more
^ unjust than that the shipowner should receive nothing for the conveyance
If of it so far. And the principle of the decision in Luke v. Lyde ' appears to
J me distinctly applicable.
'^v But besides this, when the facts are closely looked ji^_an_acceptarLCfi^f
^ the~cargo at Kertch by the consignees, and a dispensation^oL-the-ftirther
conveyance "of it, may properly be inferred.
Being prevented' by the state of the navigation from taking the cargo
on to its destination, the master was justified in landing and warehousing
it at Kertch, provided he thereby put the charterers to no extra expense,
He was not bound to wait with" his ship, with the iron on board, till the
navigation should be open, — a period of four months. All that could l)e
required of hun would be tliat he should bring on or forward the cargo as^
soon as the "navigation should be again open. In the mean time he was at
liberty to seek other new employment for his sHip in the interest of bis
owner. The charterers could have no right to exact from him a useless in-
activity of several mouths; nor, if this be so, can it make any difference
1 2 liurr. 882.
SECT. III.] METCALFE V. THE BRITANNIA IRONWORKS CO. 207
that the charterers in fact objected to the lauding of the cargo. Their ob-
jcctToiTlnrght liave"~madeall the difference if the cargo could liave been
brought on, but as that was impossible, no prejudice could result to them
if not called upon to defray the extra expense. And even if put to such
expense, they would always have had their cross claim against the ship-
owner_on the freight.
The next important fact which occurs is, that, the cargo having been
landed, the consignees come forward and claim it. But they were not en-
titled to have it delivered to them till it had been brought to Taganrog,
unless it was abandoned by the master, or on the navigation being again
opened, he refused to bring it on or to forward it ; they could not insist
upon delivery short of the port of destination without paying the entire
freight, except by arrangement with the shipowner, or the master as his
agent. Without paying the entire freight, or coming to such an arrange-
ment, the consignees must have waited four months for the iron rails,
which, being wanted for the construction of a railway, it was impoi'taut to
them to obtain without any delay.
When, under these circumstances, I find the consignees asking for the
cargo, and the master compelled to give them possession of it, I cannot sup-
pose that the master intended to forego^,on_the part of his owner^ his claijn_
to fi'eight ; or that the consignees, in accepting the iron at Kertch. intended
to claim it, or understood thaj^hey were receiving jt free from all claim of
freight. The master might be glad to be relieved from all further difficulty
as to forwarding the iron ; the consignees would be glad to have present
possession, so that they might send it by land carriage to Taganrog, instead
of waiting four months to receive it by sea. The question of amount of
freight payable -—whether the whole or part — they Jeft_to_ be settled be-
tween shipowner and charterers in England. The master evidently thought
he had earned the entire freight, for he believed that, having brought the
cargo " as near as the ship could get " to the port of destination, he had
done all he was bound by the charter-party to do. It is true that in land-
ing the cargo under this mistaken impression the master had no intention
of taking it on to Taganrog ; but it appears that while he was in the course
of landing the iron at Kertch the consignees applied for it, and it was de-
livered up to them, they giving a receipt for it, the master, on the other
hand, insisting on payment of his freight. It seems to me that, under
these circumstauces, the consignees, who had no right to have the iron car-
ried on to Taganrog till the navigation was again open, must be taken to
have accepted it subject To the claim for freight prorata^ It is clear that
the master had no intention of giving up the cargo without receiving his
freight, for he protested against its being given up to the consignees by the
authorities without the freight being paid. And, inasmuch as the con-
signees could not claim to have the cargo brought on to Taganrog till the
navigation should be open, it is by no means certain that, if the cargo had
208 METCALFE V. THE BRITANNIA IllONWORKS CO. [CHAP. IL
uot been delivered over to the consignees, the shipowner, on learning what
had occurred, would uot, iu order strictly to fulfil the terms of the charter
and prevent all question as to the payment of the entire freight, have pro-
vided a vessel to take the iron on when the navigation was re-opened. And
this would have been the more likely to happen, if the consignees, instead
of demanding present delivery of the iron, had protested against its being
left at Kertch, and had insisted on its being brought on to Taganrog when
the navigation should admit of it. It is highly probable that the plaintiff
would then have availed himself of the intervening period, and would have
made his arrangements for bringing on the cargo. Of this tempus jioenitentux
he was, as it seems to me, prematurely and unduly deprived by the act of
the consignees, in obtaining the possession of the iron from the custom-
house authorities.
It must be borne in mind as a material fact in this case, and one which
distinguishes it from the cases of Hunter v. Prinsep^ and Vlierboom v.
Chapman, 2 that the master did nothing in the way of disposing of the cargo,
or of abandoning it, so as to give up his lien on it for the freight. The
cargo was given up to the consignees by the custom-house authorities,
against the will of the master and notwithstanding his protest. The con-
signees could therefore, as it seems to me, only take possession subject to
the rights of the captain and his owner, one of these rights being, unless
clearly abandoned, that of forwarding the cargo when the time came, and so
earning the entire freight. Here, again, it is by no means certain that,
if the lien for freight claimed by the master had not been disregarded and
the cargo handed over to the consignees, the owner would not in due time
have sent it on to its destination.
Under these circumstances the case of Luke v. Lydc,^ which, as far as I
am aware, has never been overruled, and which is binding upon us, appears
to me to aj)ply. In my opinion, though the charterers' agents protested
against the landing of the cargo, yet the consignees, who as to the receipt
of the cargo must be treated as the agents of the charterers, must be taken
to have disj)ensed with the conveyance of the iron between Kertch aud
Taganrog, and to have accepted it subject to the right of the shipowner to
freight for so much of the voyage as had been performed. I think, there-
fore, that to that extent our judgment should be for the plaintiff. But my
learned Brothers think otherwise, and judgment must therefore be entered
for the defendants,
^he judgment of Mellor and Quaix, JJ., was delivered by
QuAiN, J. It is unnecessary to recapitulate the facts of the special case,
which have been fully stated by the Lord Chief Justice.
Under the circumstances the plaintiff contends, — first, that he is en-
titled to be paid full freight as on a performance of the whole voyage, or if
not fidl freight, that he is entitled to be paid pro rata itineris up to Kertch.
1 10 East, 378. 2 13 M. & W. 230. a 2 Burr. 882.
SECT. III.] METCALFE V, THE BKITANNIA IRONWORKS CO. 209
In the first place, we thiuk that the master was quite mistaken in sup-
posing that a delivery at Kertch was a delivery so near to Taganrog as ho
could safely get. According to the judgment of this court in Schilizzi v.
Derry ^ the meaning of those words is, that the ship must get within the
ambit of the port, although she may not be able to enter it. There is no
pretence for saying that Kertch is within the ambit of the port of
Taganrog.
It was next contended that the full freight was due, as the condition of
the charter-party, on the performance of which it was made payable, had
been complied with. By the terms of the charter-party the freight was to
be paid, one third on signing the bills of ladingT'an'^he balaiice iiTcasE^InT
London against certificate of right delivery of the cargo.
It was argued that the receipt given by the consignees' agents, and set
out in paragraph 17 of the case, was such a certificate. But we are of opin-
ion, assuming that the consignees or their agents were the proper persons
to give the certificate required by the charter-party, that the receipt is not
a certificate of right delivery of the cargo within the terms of the charter-
party^ especially as against the present defendants, the charterers, who ex-
I jressly protested against the discharge of the cargo at Kertch. It is merely
i an acknowledgment of having received the cargo, and is not the certificate
of right delivery required by the charter-party.
It was further contended for the plaintifi" that, as the consignees had
I taken possession of the cargo at Kertch, as described in paragraph 17, the
whole freight was payable.
The case of London k North Western Ry. Co. v. Bartlett ^ was cited in
I support of this proposition. In that case it was held that the carrier of
goods consigned to a particular place may deliver them at any other place
that the consignee and the carrier may agree upon, and that in such case
the carrier would be entitled to his full freight. So also in the case of Cork
Distilleries Co. v. Great Southern & Western Ry. Co.,^ it was held by the
House of Lords that where goods are delivered to a carrier to be carried to
a certain person at a certain place, the consignees may demand the goods
of the can-ier at another place, and the carrier will be justified in delivering
the goods on payment of the full freight.
But in these cases the carrier was ready and willing to carry the goods
to their destination and earn his full freight ; and refrained from doing so
at the express request of the consignees. In the present case, on the con-
trary, the master discharged the cargo at Kertch without any request from
j the consignees, and against the express protest of the charterers, and re-
I fused to carry it further to its port of destination ; and it was not till after ') f^'
this refusal, and when the goods may besa.id to have been abandoned by
I 1 4 E. & B. 873; 24 L. J. Q. B. 193. 2 7 h. & N. 400; 31 L. J. Ex. 92.
8 L. K. 7 H. L. 269.
VOL. II, — 14
,<
210 METCALFE V. THE BRITANNIA IRONWORKS CO. [CHAP. H.
the master^ that the consiffliees tnnk pnssps^sion of them as b olders of the
bills of lading.
We think, therefore, that the cases cited have no application to the
present case. It is said, in paragraph 19 of the case, that the cargo was
" in due course " received by the railway company. But we cannot con-
strue the language as intended to contradict or qualify the express state-
ment in paragraph 17, describing the manner in which the cargo was
received by the company.
It remains to consider the question whether the plaintiff is entitled to
freight /)?-o rata itmeris, having carried the goods to Kertch. Claims of
this kind usually arise in cases of disabled ships unable by the accidents of
the seas to complete their voyage ; and we are not aware of any case like
the present, where the claim has arisen from the default of the master in
refusing to proceed to his port of destination.
The rule on this subject was laid down by Dr. Lushington in the case of
The Soblomsten ^ as follows : " To justify a claim for pro rata freight, there
must be a voluntaiy acceptance of the goods by their owner at an inter-
mediate port, in such a mode as to raise a fair inference that the further
carriage was intentionally dispensed with." And the learned judge cites the
case of Vlierboom v. Chapman,^ from the judgment in which case the rule
is extracted in the words above quoted.
This case is founded on the earlier case of Hunter v. Prinsep.' In that
case Lord Ellenborough says that the shipowner has no right to any
freight unless the goods are forwarded to their destination, " unless the
forwarding them be dispensed with, or unless there be some new bargain
upon this subject. If the shipowner will not forward them, the freighter
is entitled to them without paying anything. . . ." He continues : " The
general property in the goods is in tlie freighter; the shipowner has no
right to withhold possession from him, unless he has either earned his
freight or is going on to earn it," Applying these principles to the facts of
the case before us, we feel bound to decide that in this case the claim for
freight pro rata cannot be supported. This action is against the charterers
on the charter-party, and so far from their having voluntarily accepted the
goods at Kertch and dispensed with the further carriage of the goods to
their port of destination, they gave the master express notice on the 19th
of December, and before he had commenced to discharge the cargo (para-
gTapli 1:2), that it he discharged the cargo at Kertch, that is to say, leftjt
at Kertch without any intention of carrying it further, he would be held
responsible for an infraction of the charter-party. It is impossible, ther»
fore, as against the present defendants, to infer that they dispensed with
the further carriage of the goods to Taganrog. The case, as far as the
present defendants are concerned, is like Liddard"?). Lopes,* where a similar
1 L. R. 1 A. & E. 297. « 13 M. & W. 238.
8 10 East, 378, 394. * 10 East, 526.
SECT. III.] METCALFE V. THE BRITANNIA IRONWORKS CO. 211
uotice was given by the owners of the cargo, and it was held that no new
contract to pay freight pro rata could be presumed against the merchant.
But assuming that defendants would be bound in this action by a volun-
tary acceptance of the goods by the consignees at an intermediate port,
and a dispensation by them of the further carriage (a point about which we
entertain considerable doubt, especially after the protest of the defendant's
ao'cnts), we are of opinion that there has been no such acceptance in tliis case.
In fact, the pi-esent case is one in which the master, by an luifortunate mis-
take, has left the goods at an intermediate port, and refused to carry them
on to their port of destination, and it was not till after such refusal that
the agent of the consignees took possession of them as holders of the bills of
lading. They had noother__course to pursueifthey wished to preserve
tlieir own property 7 It is said, however, that the master claimed a lien on
tile cargo tor freiglit, and protested against the agent of the consignees tak-
ing possession, and that by reason of the consignees so taking possession he
and his owners were prevented from sending a ship and carrying on the
cargo at the opening of the navigation. But the master had no lien for
freight : for he had neither earned any freight nor was he going on to earn it ;
and he having declared that he discharged the cargo at Kertch and did not
intend to carry it furtlieivtKe' parties had a right~Eb take him at his word
and act oiT'that declaration, and treat it as a breacTToI the charter-party^
land to take^ possession of the cargo which the master had so abandoned.
i(See^n this last pomTthe Danube Ky. CoTvTlCenos^'^lfTost v. Knight,"'^ and
jthe cases there cited.)
The case therefore seems to come within the third rule laid down by Dr.
Lushington in the case of The Soblomsten,^ namely, that no freight is pay-
able, if the owner of cargo against his will is compelled to take the cargo
at an intermediate port.
It seems to us that the duty of the master was plain, in the absence of
any fresh arrangement between the parties, either to wait at Kertch till
[the navigation was open and then proceed on his voyage, or to laud and
gatehouse the goods at Kertch, and return and take them on by his own
lor another ship when the navigation was open.
j For these reasons we are of opinion that the plaintiff is not entitled to
recover any freight in this case, and that our judgment must be for the
defendants.
I We may observe, in conclusion, that the special case before us gives no
information as to what ultimately became of the cargo of the Meredith.
We are not told if it was ever forwarded to Taganrog either by the char- /
terers or the consignees, nor how the transaction has been arranged, if it '
ever has been arranged, between the parties. We are therefore entirely ig-
Qorant whetlier in the result the present defendants, the freighters, ever
1 11 C. B. N.s. 152; 13 C. B. N. s. 825; 31 L. J. C. P. 84, 284.
2 L. R. 7 Ex. 111. 3 L. R. 1 A. & E. 297.
212 METCALFE V. THE BKITANNIA IRONWOKKS CO. [CIIAP. H.
derived any benefit or advantage whatever from the carriage of the cargo
to Kertch. We cannot infer necessarily that they must have done so, for
V many cases are conceivable in which the leaving the cargo at an intermediate
port might be of no benefit, but, on the contrary, cause a serious loss to
\l the freighters.
In the jurisprudence of France and Germany the claim for freight pro
rata itiiiei-is is not based on any such technical ground as a new contract
to be inferred from a voluntary acceptance of the goods in such a way as
to amount to a dispensation of their further carriage, but seems to be
founded merely on the equity and reasonableness of the thing, that the
shipowner who has carried the goods a part of the way, of which the
freighter has had the benefit, should be proportionately indemnified : see
Code de Commerce, Article 294-296, and Yalin's Commentaiy on the
Ordonnance de la Marine, Liv. iii. Tit. iii. Article 9. The German Code,
Article 633, expressly provides that in calculating the amount of that
indemnity the question is not one of distance merely, but that the circum-
stances of the case on both sides in relation to the performed and unper-
formed part of the journey, including the value of the goods at the
intermediate port, must be taken into consideration : German Commercial
Code, Articles 632, 633, and Makower's' Commentary on the German Code,
note 123.
Had it appeared from the case before us that the defendants in the pres-
ent case, notwithstanding the master's failure to complete his contract, had
in the result derived benefit and advantage from the carriage of the cargo
to Kertch, either in the price received for the goods or otherwise, a question
might have arisen whether we might not now be called upon to administer
in favor of a shipowner who had carried the cargo to within thirty miles of
its destination, and of which part performance the defendants had the benefit,
some of that " larger equity " alluded to by Lord Tenterden as exercised
by Courts of Admiralty in similar cases.^ Lord Tenterdex cites with ap-
probation the judgment of Sir William Scott in the case of The Friends,'
in which that learned judge says : " This court sits no more than courts of
common law do to make contracts between parties, but, as a court exercising
an equitable jurisdiction, it considers itself bound to provide as well as it
can for that relation of interests which has unexpectedly taken place under a
state of facts out of the contemplation of the contracting parties in the course
of the transaction." Sir R. Phillimore, in the case of The Teutonia,' after
citing this judgment, adds that this jurisdiction is not confined to prize cases,
but that it is a part of the general power which the court always possessed.
However, as the point to which we have last adverted is not expressly
raised by the case, we give no opinion on the subject.
Judgment for the defendants.
1 Abbott on Shipping, 11th ed. 1867, pp. 402, 403.
2 Edw. A. K. 247, 248. » l. R. 3 A. & E. 421.
SECT. III.]
BRUMBY V. SMITH.
213
BRUMBY V. SMITH.
In the Supreme Court op Alabama, June Term, 1841.
[Reported in 3 Alabama Reports, 123.]
Error to the Circuit Court of Montgomery County.
This was an action of assumpsit commenced in the court below, by the
defendant in error against the plaintiff in error.
The declaration contains a special count upon an agreement between the
parties, and the common counts. The defendant below dcmuiTed to the
special count of the declaration, which being overruled by the court,
the jury under the general issue found a verdict for the plaintiff below.
Pending the trial, a bill of exceptions was taken to the opinion of the court,
by which it appears that an agreement between the parties in writing was
offered in evidence, by which the defendant in error agreed to complete the
carpenter's work on a house of the plaintiff in error, for the sum of $437,
cnished_by
to be paid when the work was completed,
the plaintiff in eiToE
It was" proved, that a short time before the workmightJinYP been rnm-
pleted, the house was destroyed~by fire ; the'materials having been fur-
nished by the "defendant below! Evidence was also offered, conducing to
show that the defendant below, who was in possession of the house, caused
the burning of the house by his neglect.
Upon this testimony, the defendant below moved the court to charge the
jury, that if they believed from the evidence that the plaintiff had con-
tracted according to the terms of the agreement, and that all the work
specified in the agreement had not been done according to its terms, that
the plaintiff could not recover for the work actually done by him, unless
he had been prevented from the performance of it by the burning of the
house and materials ; they must also believe from the evidence, that the
burning was occasioned by the acts or neglect of the defendant, or that
the plaintiff could not recover for the work actually done ; which charge
the court refused to givcj and charged that if the jury believed that a por-
tion of the work had been executed by the plaintiff according to the terms
of the contract, by which the defendant was to furnish the materials, that
the plaintiff was entitled to recover the worth of the work actually done by
him, on the materials so furnished, although the whole of the work specified
in the contract had not been completed ; and under the state of fiicts above
supposed, the circumstance of the burning of the house or materials before
the completion of the work, whether the fire was occasioned by the act or
neglect of the defendants, or by any other means, without his agency, could
not affect the right of the plaintiff to recover. To the refusal to charge.
<f.
^
U.U
OA^ t > J /• lyv^ .
214 BRUMBY V. SMITH. [CIIAP. H.
aud to the charge giveu, the defendant excepted, and now presents the
questions of k\v which arise thereon, to this coui't for revision.
Goldthtoaite for the plaintiflF in eiror.
Dargan, contra.
Ormond, J. As no objection was made to the judgment of the court
overruling the demm-rer to the first count, we have not thought it necessary |
to examine it.
It is certainly true^hnt w^^*^" ^y t^p fpvn-is of n, contract a given juty
is to be performed, the performance is a condition precedcnt^^nd although
performance may"be~preventedl)y inevitable accident, a 2Jro rata compen-
sation cannot be recovered for the services actually performed. Of this
pfniciple, the case of Uutter v. PoweTT^ furnishes a full illustration.
The facts were, that Cutter shipped on board a vessel, as second mate,
and received from the master the following obligation : " I promise to pay
Mr. T. Cutter the sum of thirty guineas, provided he proceeds, continues,
and does his duty as second mate in the ship Governor Parry, from hence
to Liverpool." During the voyage, and before the ship arrived at Liver-
pool, Cutter died, and the action was brought by his administrator to re-
cover the value of the services actually rendered. The court held, he could
not recover on the ground, that performance was by the terms of the con-
tract a condition precedent to a recovery, and that it was no answer to
the objection that he was prevented by inevitable accident from performing
his contract.
So, if a workman undertakes to build a house, to be paid on its comple-
tion, he cannot demand payment until he has complied with his contract,
by building the house, and if it should be destroyed by inevitable accident,
it will be his loss.
In this case, it was contended by the counsel for the defendant in error,
that this was distinguishable from the class of cases we have been consider-
ing ; that it was the hire of labor and services, as the employer was to fur-
nish the materials, and that, " if while the work is doing, the thing perishes
by internal defect, by accident or superior force, without any default of the
workman, the latter is entitled to compensation to the extent of the labor
actually performed."
Judge Story, in his work on Bailment, at page 278, admits that the rule
is as above stated, by the civil law, where there is no contract postponing
the time of payment to the completion of the work, and such he intimates
would be the rule at common law ; that such is the rule of law, is sliown
by the case of Mcnetone v. Athawes,^ which was an action by a shipwright,
for work and labor done, and materials found, in repairing the defendant's
ship. The facts were, tlic ship was in the dock of the plaintiffs, to be re-
paired, and when only tliree hours' work were wanting to complete the
repairs, a fire happened in an adjacent brew house, was communicated to
• 1 6 T. R. 320. 2 3 Burr. 1592.
SECT. III.]
JONES V. JUDD.
215
the dock, and the ship was destroyed. The dock belonged to the ship-
wri'T-ht, and the owner of the ship had agreed to pay 5/. for the use of it.
The plaintiff obtained judgment. In that case, it is to be observed, there
was no contract to perform the work at a specific price, and the recovery
was had on the implied promise to pay the value of the work and labor,
and materials furnished. In this case, the defendant in^rror agreed to
complete the carpenter's work on a house_of_the plaintiff in error, the
matenaTs to be furnished by the plaintiff in^crror; in consideration of
^i^HIchrhc~agreed to pay the defendant in"error$437, "to be paid when
the work was complctcd/l. A few days before the completion of the
^^^ork7theTiouse'\vas consumed by fire^ whilst the plaintiff in error was in
possession.
Here there was an entire contract, and although it was labor to be per-
formed on materials furnished by the employer, yet" by its express termi;"
"tEelaboTwas notTo be paid for until the work was completed ; and if this" ^
iTrenHered imp'ossible, without the act of the employer, there can be no \
recovery for the work actually done.
Mr. Justice Story, after examining this question at some length, comes
to the same conclusion. " It would seem," he says, "that by the common
law, in such a case, independent of any usage of trade, the workman would
not be entitled to any compensation ; and that the rule would be, that the
thing should perish to the employer, and the work to the mechanic ; for
the contract by the job would be treated as an entirety, and should be
completed before the stipulated compensation would be due."^
From these considerations, it appears that the judge erred in his charge
to the jury, and the judgment is, therefore, reversed, and the cause
remanded.
f
^^..
a^
L, ^ / . / JONES 4^L .
i-c^-i-^-^ ,;SJ^l-c-<,« '*«-t/'»»<^>
s Md jAnes v.yjm)w . ^( _ . /_ • ' ^ ^■
J ./ Jn the Court op Appeals op New York, December, 1850. ^ , / ■ ^ y— . ^^
James Jones and Edward Jones sued Judd in the Common Pleas of Catta-
raugus county, for the price of work and labor. The defendant contracted
with the State to complete certain sections of the Genesee Valley Canal.
On the Uth of September, 1840, he entered into a sub-contract with the
plaintiffs for a part of the same work, by which he agreed to pay them
seven cents per yard for excavating and eight cents for embankment,
monthly, according to the measurement of the engineers, except ten per
cent which was not to be paid until the final estimate. The work on the
canal, including that on which the plaintiffs were engaged, was stopped by
1 Story on Bailment, 278, § 426, b., 2d Ed.
216 JONES V. JUDD. [chap. II.
the canal commissioners on the 21st day of June, 1841, before they had
completed their job, and they never finished it. On the 29th of March
1842, the legislature passed the act "to preserve the credit of the State,"
which put an end to the original contract between the defendant and the
State, and before the commencement of this suit that contract had expired
by its own limitation. The defendant paid the plaintiffs for all the work
performed by them except the ten per cent reserved, which amounted to
$85.30, which sum the plaintiffs claimed to recover.
The defendant moved for a nonsuit on the ground, among others, that
without a waiver of full performance of the contract, or without some act
of his to prevent the performance, the plaintiffs could not recover. The
motion was overruled. The defendant then proved that the work actu-
all}' done by the plaintiffs under the contract was worth only five cents for
embankment and seven cents for excavation. He offered also to prove what
the cost of the work not done would be, and that the excavation and em-
bankment not done would be more difficult and expensive than the portion
completed. This evidence was objected to and excluded. The referees
before whom the trial was had reported in the plaintiffs' favor for the sum
claimed. The Common Pleas confirmed their report, and rendered judg-
ment thereon, which was affirmed by the SuprHme Court, on error T)ro ugh t
The defendant appealed to this court.
M. B. Champlin for appellant.
W. P. Angel for respondents.
Gardiner, J. The plaintiffs were stopped in the prosecution of the work,
in fulfilment of their contract, by the authority of the State officers. Before
this injunction was removed, the law of ]\Iarch 29, 1842, for preserving the
credit of the State, was passed, which put an end to the original contract,
and the agreement between the plaintiffs and defendant which grew out of
it. 3 Mass. 331 ; Doughty v. Neal ; MO Johns. 28.
As the plaintiffs were prevented, by the authority of the State, from com-
pleting their contract, they are entitled to recover for the work performed,
at the contract price. The ten per cent was a part of the price stipulated.
It was reserved to secure the fulfilment of the contract, and to be paid upon
a final estimate. The performance of the required condition became impossi-
ble by the act of the law, and of course the plaintiffs were entitled to recover
without showing a com2)liance with the agi'eemcnt in this particular.'^
Upon the question of damages ; I think the offered evidence was properly
rejected. If the contract had been performed by the plaintiff, he might
have recovered u])ou the special agreement, or upon the common counrs,
and in either case he would be entitled to the price'fixed b}' Lhu agl'tieuieut;
Phil. EvidTToD, 2d Kd. ; Dubois v. Der&lTCanaTToT^Trnio pcrforra-
ancc had been arrested by the act or omission of the defendants, the
1 1 Sauiid. R. 216, note b, 5th Ed. 2 Comyn on Cont. 50; 10 Jolms^ 36.
^ 4 Wend, 280, and cases cited.
SECT. III.] JONES V. JUDD. 217
plaintiflF would have had his election, to treat the contract as rescinded, and
recover~on~ar quantum meruit the value of his labor, or he might sue upon
the aoreementT^and recover for the work completed according to the con-
tractTan^for the loss in profits or otherwise which he had sustained by the
intemiption. Linningdale v. Livingston ; ^ 9 B. & C. 145 ; Masterton v.
The Mayor of Brooklyn.'-^ In this case the performance was forbidden by
the State. Neither party was in default. All the work, for which a recov-
ery IS sought, was done under the contract, which fixed a precise sum to be
paid for each yard of earth removed, without regard to the difficulty or ex-
pense of the excavation. If the plaintiffs had commenced with the more
expensive part of the work, they could not, under the circumstances, have
claimed to have been allowed for the profits to arise from that portion
which they were prevented from completing. Such an allowance is predi-
cated upon a breach of the contract by the defendant.* The defendants, in
the language of Judge Beardsley, " are not by their wrongful act to de-
prive the plaintiff" of the advantage secured by the contract." Here, there
was no breach of the agreement by either party. The plaintiffs could not
recover profits, and the defendant cannot, consequently, recoup them in this
action. Blanchard v. Ely.*
Again : the plaintiff's assumed the risk of all accidents which might en-
hance the expense of the work, while the contract was subsisting : Boyle v.
Canal Co. ; ^ Sherman v. Mayor of New York,® and are entitled, consequently,
to the advantages, if any, resulting from them. The suspension of the work
by State authority was an accident unexpected by either party. It was one
which, under the ol!er^jw;ejig^ound^ to assume, was of benefit to the plain-
tiff's. But the defendant cannot Require an abatement from the agreed
price, for what has been done, unless he could demand it in case a flood
had partially excavaFedTor embanked the section of the canal to 15e com-
pleted by the plaintiffs. The judgment must be affirmed.
Jewett, Hurlbut, and Pratt, JJ., concurred.
Bronson, C. J., EuGGLES, HARRIS, and Taylor, JJ., were for reversal, on
the ground that the evidence off'ered upon the question of damages was
improperly excluded.
Jtidgment affirmed.
1 10 Johns. 36. 2 ^ Hill, 69, 75. s 7 Hill, 71, 73.
* 21 Wend. 346. ^ 22 Pick. 384. 6 1 Comst. 321.
<,
i
218 LOllD V. WHEELER. [cliAP. II.
DANIEL LORD t^. BENJAMIN WHEELER.
In the Supreme Judicial Court of Massachusetts, March Term, 1854.
\Rej,orted in 1 Gray, 282.]
Action of Contract. Writ dated October 20, 1851. Trial iu the Court
of Common Pleas, before Bishop, J., to whose instructions the defeudauts
alleged exceptions. The opinion exhibits the whole case.
E. Blake for the defendant.
B. Pond for the plaintiff".
Thomas, J. This is an action of contract ; the plaintiff" alleging that the
defendant owes him for work done and^jmterials furnished in repairing a
house and outbuildings, known as"1\ift's Hotel, at Point SbMey. The
defendant's answer sets up a special contract in writing to do the entire
work for a given sum, payable in two instalments ; alleges the payment
of that which had already become due, and denies his liability to pay the
second, because the work was never completed ; the buildings^forejhe
repairs were finished, having been destroyed by fire. The plaintiff's repli-
cation alleges that the repairs on the house were nearly done ; and that,
before the fire took place, the defendant, by his tenant, entered into the
use and occupation of the house. The report of the auditor finds such to
be the fact. The defendant contended that the destruction of the huild-
)iugs by fire did not constitute a sufficient excuse for the failure of the
plaintiflf to complete the remainder of the repairs ; and that, if it did, the
plaintiff" could not recover for a partial performance, under this declaration.
The presiding judge instructed the jury, that the fire was a sufficient excuse
for thelailure to complete the remainder of the repairs; and that for the
part performea the^plamtiff^was entitled to recover under the present
declaration.
""We think the instructions, applied, as all instructions should be, to the
facts in evidence, and the grounds assumed by the parties respectively,
were correct. The plaintiff" was excused by^the fire from the further per-
formance of his contract. The case may be clearly distinguished from the
ordinary contract of one" to erect a building upon the land of another, per-
forming the labor and supplying the materials therefor, where, if, before
the building is completed or accepted, it is destroyed by fire or other caa-
ualty, the loss must fall on the builder. He must rebuild. The thing
may be done and he has contracted to do it. It is otherwise, where one
person agrees to expend labor upon a specific subject, the property of
another, as to shoe his horse or slate his dwelling-house. If the horse dies,
or the dwelling-house is destroyed by fire, before the work is done, the
SECT. III.] WOLFE V. HOWES. 219
performance of the contract becomes impossible, and with the principal
perishes the incident.
It by no means follows that, if the work is partially done when the
casualty occurs, a party having contracted to do the entire work for a
' specific sum can recover for the partial performance. It may well be
that both must lose, the one his labor, and the other the thing on which
it has been expended. And the precise ground on which the plaintiff can
recover in this case is, that, when the repairs upon the house were sub-
stantially done, and before the fire, the defendant by his tenant entereH"
into and occupied it, and so used and enjoyed th^laljor and materials of
flie" plaintiff; and that such use and enjoyment were a severance of tte
contract, and an acceptance pro tanto by the defendant. And the instruc-
tion of the presiding judge, not as stating an abstract proposition of law
without reference to the evidence, but as giving a practical rule for the
guidance of the jury upon the facts before them, was correct. For the
partial performance, upon the facts of this case, the plaintiff might
recover.
The defendant contends that the plaintiff cannot recover under this
declaration, which is for work done and materials furnished ; that he should
have declared on the contract for the partial performance, and alleged his
excuse for failing to perform the remainder. Though, under the Rev. Sts.
c. 100, § 22, and the Sts. of 1851, c. 233, §§ 42, 43, and 1852, c. 312,
§§ 32, 33, the objection would seem to be of no great practical moment,
it is not free from technical difficulty. But we are of opinion that under
the practice act, St. 1851, c. 233, § 2, there was a substantial statement
of the facts necessary to constitute the cause of action.
Exceptions overruled.
WOLFE, Executor, etc. v. HOWES, Impleaded, etc.
In the Court of Appeals op New York, September Term, 1859.
[Reported in 20 New York Reports, 197.]
Appeal from the Supreme Court. The complaint contained the com-
mon coimts only for work, labor, and services done by Nicholas Vache, the
testator, for the "defendants. The defendants denied the facts averred in
the complaint, and set up as a separate defence that the work was done
underji^pecial contract not performed by Vache in hisj^ifetime, and claimed
damages for the breach of the contract on his part. The defendants had
for nine years previous to May, 1852, been engaged as partners in carrying
on the business of making glass at the Dunbarton glass-works, of which
they were the proprietors, at Verona in the county of Oneida. The testator^
was in the employment of the defendants at their glass-works as a pot-
%
220 WOLFE V. HOWES. [CIIAP. II.
maker. Ou tlic 1st of May, 1852, the defendants and testator entered into
a contract in writing as follows : —
Memorandum of an agreement made this day. Howes, Scofield & Co.
[defendants], of the first part, and Nicholas Vache of the second part,
Witnessetli, That for and in consideration of 81 to me in hand paid, the
receipt whereof I do acknowledge, do agree on my part to do all the pot-
room work for said parties of the first part, in a good and workmanlike
manner for one year from the date of this contract, at the price of $40 per
month, $10 of which is to be paid me monthly. Dunbarton, May 1, 1852.
If extra help is needed, we agi-ee to furnish it.
(Signed) Nicholas Vache.
The trial was before a referee, who found the following facts : The plain-
tiff's testator entered upon the performance of the contract, and continued
to fulfil it in all respects according to the terms thereof, in a good and
workmanlike manner, from the 1st day of May, 1852, to the 7th day of
December, following, when Vache became sick and unwell, and so con-
tinued for a long time, and at length died. Bv_reason of his said-sickBefla^
and without fault on his part, he became and was incapable of further
pfirfnrmntif-fi of liis snid contract.
He held as matter of law, that by reason of his sickness and death,
Vache was released and discharged from the further performance of his
contract, and his executor was entitled to recover a reasonable compensa-
tion for the services of his testator.
That such reasonable compensation was the sum of $40 per month, for
the time of the testator's service ; and after deducting certain payments
made to him from time to time, there was a balance due of $159.28, for
■which he oi^dered judgment with costs. The defendants took several ex-
ceptions to the finding of the facts and the decisions of the referee on the
questions of law, and particularly to the conclusion that Vache was released
and discharged from further performance of the contract, and that the
plaintiff was entitled to recover a reasonable compensation for the services
rendered by his testator for the defendants, and in not allowing a sufficient
amount of set-off. The Supreme Court, at general term in the fifth dis-
trict, having affirmed the judgment entered on the report of the referee, the
defendants appealed to this court.
Timothy Jenkins for the appellants.
Francis^ Kernan for the respondent.
Allen, J. Tliere can be little doulit, I think, that the contract with
Vache contemi)]ated liis personal services. This is evident both ffOiirthS'
nature of then)usiness and the amount of compensation agreed to be paid
him. It is also manifest from the evidence on both sides. The business
of pot-making required skill and experience. It was an art to be acquired
after much studv and labor, and which Vache seemed to have accomplished.
^Oe. i-^y .
SECT. III.] WOLFE V. HOWES. 221
The execution of the work required his constant and personal supervision
and hibor. No common laborer could have supplied liis place, and hence
the amount of his wages was largely increased beyond that of such a hand.
The extra help mentioned in the contract had reference to the breaking
away of the flattening, so called, and to its repair, and nothing else. The
whole testimony shows this, as well as that the personal services of Vache
were contracted for. The referee therefore well found and the court below
well decided that such were the terms of the contract.
2. The question is then presented whether the executor of a mechanic,
who has contracted to work for a definite period, and who enters upon his '
labor under the contract, and continues in its faithful performance for a , /o
portion of the time, until prevented by sickness and death, and without ,' '
any fault on his part, from its final completion, can recover for the work '
and services thus performed by his testator.
The broad ground is taken on the part of the defendants' counsel, that „
no recovery can be had under such circumstances; that full performance ^UyU t'-^r->CK:Ziz::
was a condition precedent to the right of recovery, the agreement being
general and absolute in its terms, and not providing for the contingency of
sickness or death.
It has undoubtedly been long settled as a general principle, both in Eng-
land and in this as well as in most the other States, that where the contract
is entire, nothing but the default of the defendants will excuse perform-
ance. It will be found, however, on an examination of the leading cases
in our own courts, that the failure to perform was owing to the fault or
negligence of the party seeking to recover. McMillan v. A^anderlip ; ^ Eeab
V. Moor; 2 Jennings v. Camp;' Sickels v. Pattison;^ 8 Cow. 63, and vari-
ous other cases. It is believed that not a single case can be found where
the rule is laid down with such strictness and severity as the defendants'
counsel asks for in the present case.
Some^oTlTie' English cases do indeed rather intimate such a doctrine.
Cutter V. Powell; 5 Appleby v. Dods;^ Hulle v. Heightman;^ and some
others. These cases are, however, capable of the same reasonable construc-
tion which the law confers upon all contracts. That of Cutter v. Powell is
distinguishable in this, that by the peculiar wording of the contract it was
converted into a wagering agreement, by which the party, in consideration
of an unusually high rate of wages, undertook to insure his own life and
to render at all hazards his personal services during the voyage, before the
completion of which he died.
The great principle upon which the adjudged cases in all the courts is
based, is the question, as stated in McMillan v. Vanderlip, already cited,
What was the real intention of the parties % The law gives a reasonable
^ 12 Johns. 16.5. 2 19 Johns. 337. 8 13 Johns. 94, 390.
* 14 Wend. 257. ^ g t. R. 320 ; 8 T. R. 267. « 8 East, 300.
"J 2 East, 145.
222
WOLFE V. HOWES.
[chap. II.
i
^x// 7I* oe
construction to all contracts. For instance, in the present case, did the
parties intend that the contract should be binding upon the plaiutiflfs
testator in case of unavoidable sickness or death ; or did they intend, and
is it to be implied, that each should perform, as to the other, according to
the~termi~of the c6nirdci:r^eo~vo!eniel It appears that a fair and legal
interpretation would answer this question in the affirmative, and that such
a provision must be understood as written in the contract. Nor is this
principle wanting sanction either by elementary writers or adjudged cases.
" Where the performance of a condition is prevented by the act of God,
it is excused." Cruise Digest, Condition, 41, 43; 3 Kent Com. 471;
2 Kent Com., 509 ; 8 Bing. 231. In Mounsey v. Drake,^ the court say,
" Performance must be shown, unless prevented by the act of God or of
the law." 1 Shep. Touchstone, 180; Gilbert on Covenants, 472; People
V. Manning; 2 People v. Bartlett ; « 12 Wend. 590; Chit, on Con., G31 ;
1 Parsons on Con., 524, and note ; 11 Vt. 5G2 ; 11 Met. 440.
There is good reason for the distinction which seems to obtain in all the
cases, between the case of a wilful or negligent violation of a contract and
that where one is prevented by the act of God. In the one case, the
application of the rule operates as a punishment to the person wantonly
guilty of the breach, and tends to preserve the contract inviolable ; while
in the other, its exception is calculated to protect the rights of the unfor-
tunate and honest man who is providentially and without fault on his part
prevented from a full performance.
There is another reason for relaxing the rule, which is applicable to the
case we are now considering. It is well set forth iu Story on Bailments,*
where that learned jurist, after considering the great number of cases on
this subject in the various courts of England and this country, and well
observing that they are not at all times in harmony, remarks that the true
rule may be considered to be, " that wherejhe^ontractjsjorjgersoi^^
vices which none but the promisor can perfornythere inevitable_accid£iit
or thgjctjjf Godlyill excuse"jthejionj^erformnTice, nnd pnable thp party
to recover upon a quantum meruit. But where the thing to be done or
work to~Ee~perIormed~maybe donelby another person, then all accidents,
are at tHeTiiFofjthe" promisor? In the present case the finding shows,
and I have already remarked, justly, that the contract was personal, and
that the executor could not have employed a third person to execute the
contract on the part of his testator Vache.
But without pressing this point further, it is sufficient to say that it was
virtually decided against the defendants by this court, in the case of Jones
V. Judd.^ It was there decided that when, by the terms of the contract for
work and labor, the full price is not to be paid until the completion of the
work, and that becomes impossible by the act of the law, the contractor is
8 3 Hill, 570.
» 10 Johns, 27, 29.
* § 36, and notes.
2 8 Cow. 297.
6 4 Conist. 411.
SECT. III.]
WOLFE V. HOWES.
223
entitled to recover for the amount of his labor. In that case the work was
stopped by the State officers in obedience to an act of the Legislature sus-
pending the work ; and the court held that as the contractor was without
fault, he was entitled to recover. The case in 10 Johns. 27, before cited,
was referred to and approved of as authority in favor of the position ; and
see Beebe v. Johnson.^
The conclusion, then, is, that where the performance of work and labor
is a coiKTItioii precedent to entitle the party to recover, a fulfilment must
be shown ; yet tha^^here performance is prevented or rendered impossible
by the sickness or death of the party, a recovery may be had for the labor
actually done. I'lus is not out of harmony with principle or adjudged
cases, and is certainly in harmony with the rules of common honesty and
strict justice.
These views dispose of the main questions in the case. It is necessary
to notice one or two of minor importance.
It is insisted that if sickness were an excuse for the non-performance
of the contract on the part of Vache, that such excuse should have been
alleged in the complaint, and this not having been done, that the plaintiff
is not entitled to recover. It is true that the plaintiff might have set up
the agreement and the excuse for its non-performance, and entitled him-
self to recover upon such a pleading. But the complaint proceeds upon a
quantum meruit ; and upon showing the work and labor of Vache the plain-
tiff entitled himself to recover. The defendants set up the special agree-
ment as matter of defence, and the plaintiff's excuse was properly enough
matter of reply. The contract was in fact discharged by the act of God,
and its chief consequence was to measure the amount of the plaintiff's
damages, or to regulate the compensation to which the plaintiff was enti-
tled, though his remedy was as upon a quantum, meruit. So say some of
the cases already cited.
Again, it is said that if the plaintiff was entitled to recover anything, it
could be only $10 a month, and that the defendants' set-off having been
found by the referee to amount to more than that, the defendants were
entitled to judgment. This objection is not tenable. The compensation
was to be at the rate of $40 per month ; $10 (a part) of which was to be
paid monthly. This was upon the supposition that the contract was to
be performed for the whole time._ This, however, having been rendered
impossible, thejlaintiff was entitled to recover, if anything, the full value
of the services of the testator, not exceeding the rate of compensation
secured by the terms of the contract.
It is further urged that the referee erred in not allowing defendants'
damages accruing to them after Vache was sick and before he quit. That
was a question of fact entirely for the referee. He found that the plaintiff
did his work well and skilfully, down to the time of his sickness ; he al-
1 19 Wend. 502.
/
JklX.
A
224: NIBLO V. BINSSE. [CHAP. IL
lowed aud deducted the whole amouut of set-off proved by defendants ;
and he does not find that the defendants sustained any damages by reason
of any defect in Vache's work down to the time of his quitting, in Decem-
ber, 1852. "With these questions of fact we cannot interfere. The court
below sanctioned the finding. I think they were fully warranted in so
doing. At all events, we are not at liberty to interfere.
The judgment must be affirmed.
Johnson, C. J., concurred, observing that it was material that the de-
fendants had received actual benefit from the services of the plaiutifi^s tes-
tator, and that quite a difi'erent question would be presented by a case
wiiere the services actually rendered should prove valueless ; as, e. g., if
one should be retained to compose an original literary work, and having
faithfully employed himself in preparation, should die without having
completed any work of value to the employer. Comstock, J., and other
judges concurred in this qualification.
Judgment affirmed.}
NIBLO V. BINSSE.
In the Court of Appeals op New York, December, 1864.
[Reported in 3 AbbotVs Appeal Decisions, 375.]
William Niblo, as assignee of Anthony E. Hitchings, sued John Binsse
and Louisa La Farge, executors of John La Farge, in the Supreme Court,
for services and materials under a contract with the defendants' testator.
The referee found the following facts.
Hitchings agreed with the testator, by contract dated April 14, 1853,
that Hitchings should, by October, 1853, furnish and set up in the La Fargo
House and Metropolitan Hall, then building by testator in the city of New
York, steam-engines, pumps, and heating apparatus, etc., pipes and coils,
imder superintendence of an architect named, for which the testator was
to pay him ten thousand dollars ; as follows : seven thousand five hundred
dollars in instalments, as certain parts of the work should be completed;
fifteen hundred dollars when all was finished, and the balance when the
work was " tested and found to be sufficient according to the provisions of
this contract ; " said payments to be on the certificate of the architect that
they were due according to the agreement.
Hitchings began the work, and continued in the execution of it until
Jan. 7, 1854, when the whole buildings were destroyed by fire without any
1 It was held in Lukeman v. Pollard, 43 Me. 463, that one who refused to perform •
contract of service because of the prevalence of cholera in the vicinity, could recover on
a quantum meruit for the value of services rendered. — Ed.
SECT. III.] NIBLO V. BINSSE. 225
fault upon the part of La Farge or of Hitchings. La Farge had in the
mean time paid Hitchings, on account of the work, seven thousand five
hundred dollars, without any certificate of the architect. Of this sum one
thousand dollars was paid Oct. 24, 1853, and fifteen hundred dollars on
Dec. 15, 1853, while the work was going on, but after the time when it
was to have been finished, by the terms of the contract. At the time of
the fire the work and materials necessary to complete the contract would
have cost about one thousand dollars. Previous to the fire the concert
room had been used for concerts several times, and when so used was
heated by the apparatus Hitchings had put in ; but the hotel had not been
opened for guests.
After the fire La Farge retained for his own use the remains of the iron
pipe which was put into the building by Hitchings, and sold same to the
latter for one thousand dollars.
Hitchings assigned to the plaintiff his claim to recover the balance of the
ten thousand dollars, to be paid by the terms of the contract for the whole
Iwork; whereupon the plaintiff brought this action. The referee decided
in favor of the defendants, because the work was never fully completed ;
'and judgment accordingly was entered, from which the plaintiff appealed.
The Supreme Court, at general term, affirmed the judgment, holding that
[Hitchings was in default by not having finished the work according to the
contract, and that his failure to perform was not due to the Jict of God,
of the law, or of the other party, and that the plaintiff's assignor should
have provided against such a contingency by a clause in the contract.
Reported in 44 Barb. 54. From this judgment plaintiff appealed to this
court.
E. P. Cowles and W. F. Allen for plaintiff, appellant.
T. J. Glover for defendants, respondents.
By the Court. — T. A. Johnson, J. It was held, both by the referee and
;he Supreme Court at general term, that the plaintiff was not entitled to
•ecover, merely because the work was not finished and the job completed at
he time the building, upon which the work was being done, was destroyed
by fire. To my mind, this is a very plain case in favor of the plaintiff,
[.'he decision, very properly, was not put upon the ground that the work
ps not completed within the time specified in the agreement, but upon
jhe naked ground that the contractor, having failed to do all the work he
iad contracted to do, could not maintain the action. It is plain, upon the
jacts found, that the time of performance had been extended by the mutual
Issent of the parties to the contract. When the time expired the agree-
nent was not rescinded or terminated by the owner of the building, but
be contractor was allowed to go on under it, and in performance of it, until
be building was destroyed by the fire. Payments were made in the mean
irae, and the contract treated as in all respects in force by both parties,
'he work was in progress, and nine-tenths of the labor and expense had
VOL. 11.— 15
226 ' NIBLO V. BINSSE. [CHAP. H.
been performed and incurred when the furtlier prosecution of the work was
arrested and its completion prevented by the destruction aforesaid. The
case is to be treated, therefore, precisely as though the destruction of the
building had occurred before Oct. 1, 1853, when by the terms of the con-
tract the work should have been finished. Ko principle of law is better
settled than this, that when one party has, by his own act or default, pre-
vented the other party from fully performing his contract, the party thus
preventing performance cannot take advantage of his own act or default,
and screen himself from payment for what has been done under the con-
tract. The law will imply a promise on his part to remunerate the other
party for what has been done, and support an action upon such implied
promise.^
This case falls exactly within this principle of law. Through whose de-
fault was it that the work was not completed according to the contract t
Certainly not that of Hitch ings, the contractor ; for he was ready and
willing, and was in act of performing, when prevented by the destruction
of the building. He was a mere laborer upon the building, having no
possession or control over it for any other pui*pose ; and the destruction of
it was through no act or agency of his. Manifestly the performance of the
contract was prevented by the default of the other party, who furnished
and provided the building upon which the \vork was to be done, as far aa
the work had progressed, but failed to furnish or provide it for the com-
pletion of the work. It was his building, in his possession, and under his
exclusive control ; and, as a material and substantive part of his contract,
he was to have it in existence ready for the work, and continue it in ex-
istence, and in a proper condition for the work to be performed upon it, as
long as it was necessary under the contract, or as long as the contract was
continued in force by the consent of the respective parties. If one party
agrees with another to do work upon house, or other building, the law!
implies that the employer is to have the building in existence upon which
the work contracted for may be done. It is necessarily a part of the conj
tract on the part of such employer, whether it is specified in it in termfj
or not. Here the defendant's testator failed to provide and keep th(j
building till the work could be completed, and thus — and thus only —
was performance prevented.
It is nothing whatever to the case to say that the building was noi|
destroyed through his agency or fault. That fact is no test of the liability
in an action like this. It would not excuse or shield the defendants fron^
liability, even were the action to recover aa damages the profits whicH
might have been made on that part of the work, the performance of whicl'
was prevented. The destruction was not caused by the act of God, a
appears by the facts found ; and a default from any other cause will no I
excuse non-performance.
1 2 Pars, on Cont. 35.
3ECT. Ill] NIBLO V. BINSSE. 227
This rule wiis applied and enforced by this court in Tompkins v. Dudley,^
very properly, undoubtedly, though the case was a very hard one for the
iefendants. The school-house which they had contracted to build, was
Substantially finished, according to the contract, but it had not been ac-
pepted by the plaintiffs, a small amount of painting and the hanging of
the window-bhnds remaining to be done, before the job was finished. In
pis situation the house took fire and was destroyed, and the plaintiffs were
jvllowed to recover back moneys they had advanced on the contract, and
llaraages for its non-performance. It was a casualty not provided against
u the contract, which the defendants had bound themselves fully to per-
brm. This rule, it will be seen, applies with full force against the defend-
luts in this action, but in no respect is it applicable to the plaintiffs. The
lefendant's testator was to provide the building in which the work was to
3e done. That was part of his obligation, and he had not provided for the
:ontingency of its accidental destruction during the continuance of the
vork, by his agreement. The plaintiffs' assignor had no occasion to pro-
ride, in the contract, for the default of the other party in the performance
)f his part of the obligation. The law provides for that. It was never
leard that the contract must provide against the default of a party, in
j)rder to give a remedy to the other party who is affected injuriously by it ;
jinless, indeed, some extraordinary remedy is sought, which the law, with-
|>ut an express stipulation, does not give. The obligation of the defendant's
'estator seems to have been entirely overlooked in the Supreme Court, or
^Ise it was assumed that the destruction of the building did not place him
■t all in default, imless he had some agency in such destruction, by
Hiich the performance was prevented. This I regard as a fallacy, and
t is this, obviously, which produced the erroneous judgment against the
tlaintiff.
The case of Menetone v. Athawes ^ is very much in point here. The
iilaintiff was employed to make certain specified repairs upon a vessel lying
|t his own ship-yard. Before the repairs were completed, a fire broke out
Q a neighboring store, and extended to the vessel and destroyed it. ¥he
lefendant in that case, as in this, contended that the plaintiff could not
ecover, because his agreement to repair was not fully performed. But it
?aa held, that the plaintiff was entitled to recover, pro tanto, for the work
nd materials, as far as he had gone in the performance of his undertaking.
j his seems to be the settled rule in all cases between bailor and bailee,
rhen the article is delivered to the latter, to be repaired or wrought into
i new form, and is accidentally destroyed before the work is finished and
pady for delivery, without the fault of the mechanic. The loss in such
|a.3e falls upon the owner of the article, and he must answer for the labor
^ready bestowed and the materials, if any furnished. 2 Kent Com. 590 ;
tory on Bailm. § 426, a ; Gillett v. Mawman.^ It may perhaps be different
1 25 N. Y. 272. '-' 3 Burr. 1592. 3 i Taunt. 137.
228 NIBLO V. BINSSE. [CIIAP. II.
in such a case, where the work is doue upon an express contract as a job,
because the owner by delivering the article to the mechanic has done all he
could do. He has performed so far all that was within the contemplation
of the parties, and all the law could require of him, and it would be im-
possible for the mechanic in possession to allege that he w^as prevented
from performing by any act or default of the owner. See Story on Bailm.
§ -490, b. His non-performance in that case not being occasioned by the
act or default of the other party, it is difficult to see how, according to our
rule, he could maintain the action. But it is manifestly entirely different
where the owner of the property retains possession and contracts for work
to be doue upon it while in his own custody. In such case there is an
implied obligation resting upon him to have it on hand and in readiness
for the labor to be performed upon it. That is the case put by Wilmot, J.,
in Menetone v. Athawes,^ " of a horse which a farrier is curing, and which
is burned in the meanwhile in the owner's own stable," as one in which the
owner would undoubtedly be liable for the skill and care bestowed. The
work is not completed, because the owner, whose duty it is to keep the
article on hand in order to receive the labor and skill upon it, fails to do
so, and is in default. That is this case, in effect. The difference in the
nature of the property upon which the work was to be performed does not
affect the principle.
When full performance is prevented by the authority of the State, the
party may recover for his labor and materials, up to the time the State
interferes and stops the work. Jones v. Judd.^ I lay no stress whatever
upon the fact that the owner used the building more or less while the work
was in progress, because in this State the rule is well settled that use and
occupancy constitute no ground of liability if the contract is not performed.
Smith V. Brady.' And if the non-performance was occasioned by the act
or defiiult of the other party, use and occupancy are of no moment. Nor
is it of any consequence, in my judgment, that the defendant's testator kept
the iron pipes which the other party had placed in the building, and sold
them after the fire. They w^ere clearly his property, made so by beinji
placed in his building under the contract. And his using them or dis-
posing of them after the destruction of the building does not, in any way
that I can perceive, affect the question of his liability.
I rest the right of the plaintiff to maintain his action distinctly upon the
ground that his assignor was prevented from perfonxiing his contract by
the default of the other party in failing to keep on hand and in readiness
the building in which the work was to be done, and that the other party
was clearly in default whether the building was destroyed with or without
fault on his part. If these views are correct, the action should have been
sustained, and the plaintiff allowed to recover for his labor and materials
according to the contract, as far as he had gone, deducting the araouut
1 3 Burr. 1592. 2 4 N. Y. 411. » 17 N. Y. 173.
SECT. III.] CLEAllY V. SOIIIER. 229
^'
paid, and perhaps any damages which the owner may have sustained in '/^ .
consequence of the non-performance by the time stipulated in the contract.
The judgment must, therefore, be reversed, and a new trial granted, with Lr ^ ^r-
costs to abide the event. "^ "^ ^^'
All the judges concurred.
Judgment reversed, and new trial ordered, costs to abide tlie enent.
CLEARY V. SOHIEE.
In the Supreme Judicial Court of Massachusetts, April 5, 1876.
[Reported in 120 Massachusetts Reports, 210.]
Contract on an account annexed to recover $474, with interest, for work
done and materials furnished. The case was submitted to the kSuperior
Court, and to this court on appeal, upon an agreed statement of facts in
Substance as follows : —
j The plaintiff made an oral contract with Henry Farnum, of whose estate
the defendants are trustees, to lath and plaster a certain building on Federal
ptreet for the sum of forty cents per square yard. No agreement was made,
and nothing was said, as to terms or times of payment, but only that the
work was to be done for forty cents per yard. The plaintiff lathed and put
)n the first coat of plaster a few days before the great fire of November,
1872, and was ready and willing and in good faith intended to put on the
Second or skim coat, so called, and would have begun November 11, so to
jlo, when the fire of November 9 and 10 wholly destroyed the building.
There was no negligence, default, or bad faith on the part of either of the
jarties, and the fire was an unavoidable casualty. The amount charged
py the plaintiff, to wit, $474, is a reasonable and proper charge for the part
pf the work done ; and, if the plaintiff is entitled to recover anything, as
jnatter of law, under these facts, he is entitled to recover that sum and
Interest from November 10, 1872. The plaintiff did not demand said sum
iintil after the fire, and not till some months thereafter, and did no more
^ork under the contract. Farnum died soon after the fire, and the defend-
mts represent him and his estate, and are liable if he was liable.
If the plaintiff was entitled to recover, either under his contract or under
I count for work done and materials furnished, judgment was to be entered
or the said sum of $474 and interest ; otherwise, for the defendants.
The Superior Court ordered judgment for the defendants ; and the plain-
iff appealed.
B. E. Perry for the plaintiff.
C. P. Gorely for the defendants.
230 N. Y. LIFE INSURANCE CO. V. STATIIAM ct (ll. [CIIAP. H
By the Court. The building having been destroyed by fire without fault
of the plaintitl', so that he could not complete his contract, he may recover
under a count for work done and materials furnished. Lord v. Wheeler^;
Wells V. Cain an. ^ Judgment for the 'plainUff.
NEW YORK LIFE INSURANCE COMPANY v. STATHAM ei d.
SAME V. SEYMS.
MANHATTAN LIFE INSURANCE COMPANY v. BUCK, Executor.
In the Supreme Court of the United States, October Term, 1876.
[Reported in 93 United States Reports, 24.]
The first of these cases is here on appeal from, and the second and third
on writs of errors to, the Circuit Court of the United States for the Southern
District of Mississippi.
The first case is a bill in equity, filed to recover the amount of a policy
of life assurance, granted by the defendant (now appellant) in 1851, on the
life of Dr. A. D. Statham, of Mississippi, from the proceeds of certain fuuds
belonging to the defendant attached in the hands of its agent at Jackson,
in that State. It appears from the statements of the bill that the annual
premiums accruing on the policy were all regularly paid, until the breaking
out of the late civil war, but that, in consequence of that event, the pre-
mium due on the 8th of December, 1861, was not paid ; the parties assured
being residents of Mississippi, and the defendant a corporation of New York.
Dr. Statham died in July, 18G2.
The second case is an action at law against the same defendant to recover
the amount of a policy issued in 1859 on the life of Henry S. Seyms, the
husband of the plaintiff". In this case, also, the premiums had been paid
until the breaking out of the war, when, by reason thereof, they ceased toj
be paid, the plaintiff" and her husband being residents of Mississippi. He
died in May, 18G2.
The third case is a similar action against the Manhattan Life Insurance
Company of New York, to recover the amount of a policy issued by it in
1858, on the life of C. L. Buck, of Vicksburg, Miss. ; the circumstances j
being substantially the same as in the other cases.
Each policy is in the usual form of such an instrument, declaring thai!
the company in consideration of a certain specified sum to it in hand pftic|
by the assured, and of an aimual premium of the same amount to be paic
on the same day and month in every year during the continuance of th(|
policy, did assure the life of tlie party named, in a specified amount, foi^
1 1 Gray, 282. ^ 107 Mass. 514, 517.
SECT. III.] N. Y. LIFE INSURANCE CO. V. STATIIAM ct Cll. 231
the term of his natural life. Each contained various conditions, upon the
breach of which it was to be null and void ; and amongst others the follow-
ing : " That in case the said [assured] shall not pay the said premium on
or before the several days hereinbefore mentioned for the payment thereof,
then and in every such case tlie said company shall not be liable to the
payment of the sum insured, or in any part thereof, and this policy shall
cease and determine." The Manhattan policy contained the additional
provision, that, in every case where the policy should cease or become null
and void, all previous payments made thereon should be forfeited to the
company.
The non-payment of the premiums in arrear was set up in bar of the
actions ; and the plaintiffs respectively relied on the existence of the war
as an excuse, offering to deduct the premiums in arrear from the amounts
of the policies.
The decree and judgments below were against the defendants.
Mr. Matt. H. Carpenter and Mr. James A. Garfield, for the appellant in
the first case, and for the plaintiff in error in the second. The third case
was submitted by Mr. Alfred Pitman for the plaintiff in error.
Mr. Clinton L. Rice, for the appellees in the first case, and Mr. Joseph
Casey, for the defendant in error in the second. The third case was sub-
mitted by Mr. W. P. Harris, for the defendant in error.
Mr. Justice Bradley, after stating the case, delivered the opinion of the
court.
We agree with the court below, that the contract is not an assurance for
a single year, with a privilege of renewal from year to year by paying the
annual premium, but that it is an entire contract of assurance for life, sub-
ject to discontinuance and forfeiture for non-payment of any of the stipu-
lated premiums. Such is the form of the contract, and such is its character.
It has been contended that the payment of each premium is the consider-
ation for insurance during the next following year, — as in fire policies.
But the position is untenable. It often happens that the assured pays the
entire premium in advance, or in five, ten, or twenty annual instalments.
Such instalments are clearly not intended as the consideration for the
respective years in which they are paid ; for, after they are all paid, the
policy stands good for the balance of the life insured, without any further
payment. Each instalment is, in fact, part consideration of the entire
insurance for life. It is the same thing, where the annual premiums are
spread over the whole life. The value of assurance for one year of a man's
life when he is young, strong, and healthy, is manifestly not the same as
■when he is old and decrepit. There is no proper relation between the
annual premium and the risk of assurance for the year in which it is paid.
This idea of assurance from year to year is the suggestion of ingenious
counsel. The annual premiums are an annuity, the present value of which
is calculated to correspond with the present value of the amount assured,
232 N. Y. LIFE INSURANCE CO. V. STATHAM et Cil. [CHAP. XL
a reasonable percentage being added to the premiums to cover expenses
and contingencies. The whole premiums are balanced against the whole
insurance.
But whilst this is true, it must be conceded that promptness of payment
is essential in the business of life insurance. All the calculations of the
insurance company are based on the hypothesis of prompt payments. They
not only calculate on the receipt of the premiums when due, but on com-
pounding interest upon them. It is on this basis that they are enabled to
offer assurance at the favorable rates they do. Forfeiture for non-payment
is a necessary means of protecting themselves from embarrassment. Unless
it were enforceable, the business would be thrown into utter confusion.
It is like the forfeiture of shares in mining enterprises, and all other
hazardous undertakings. There must be power to cut oflf unprofitable
members, or the success of the whole scheme is endangered. The insured
parties are associates in a great scheme. This associated relation exists
whether the company be a mutual one or not. Each is interested in the
engagements of all; for out of the coexistence of many risks arises the
law of average, which underlies the whole business. An essential feature
of this scheme is the mathematical calculations referred to/ on which the
premiums and amounts assured are based. And these calculations, again,
are based on the assumption of average mortality, and of prompt payments
and compound interest thereon. Delinquency cannot be tolerated nor
redeemed, except at the option of the company. This has always been the
understanding and the practice in this department of business. Some
companies, it is true, accord a grace of thirty days, or other fixed period,
within which the premium in arrear may be paid, on certain conditions of
continued good health, etc. But this is a matter of stipulation, or of dis-
cretion, on the part of the particular company. When no stipulation
exists, it is the general understanding that time is material, and that the
forfeiture is absolute if the premium be not paid. The extraordinary and
even desperate efforts sometimes made, when an insured person is in extrevm,
to meet a premium coming due, demonstrates the common view of this
matter.
The case, therefore, is one in which time is material and of the essence
of the contract. Non-payment at the day involves absolute forfeiture, if
such be the terms of the contract, as is the case here. Courts cannot with
safety vary the stipulation of the parties by introducing equities for the
relief of the insured against their own negligence.
But the court below bases its decision on the assumption that, when
performance of the condition becomes illegal in consequence of the prev-
alence of public war, it is excused, and forfeiture does not ensue. It sup-
poses the contract to have been suspended during tlie war, and to have
revived with all its force wlien the war ended. Such a suspension and
revival do take place in tho case of ordinary debts. But have they ever
SECT. III.] N. Y. LIFE INSUKANCE CO. V. STATIIAM d ul. 233
been known to take place in the case of executory contracts in wliicli time
is material 1 If a Texas mei-chant had contracted to furnish some Northern
explorer a thousand cans of preserved meat by a certain day, so as to be
ready for his departure for the North Pole, and was prevented from fur-
nishin" it by the civil war, would the contract still be good at the close of
the war five years afterwards, and after the return of the expedition 1 If the
proprietor of a Tennessee quarry had agreed, in 1860, to furnish, during
the two following years, ten thousand cubic feet of marble, for the con-
struction of a building in Cincinnati, could he have claimed to perform
the contract in 18G5, on the ground that the war prevented an earlier
performance 1
The truth is, that the doctrine of the revival of contracts suspended
during the war is one based on considerations of equity and justice, and
cannot be invoked to revive a contract which it would bo unjust or
inequitable to revive.
In the case of life insurance, besides the materiality of time in the per-
formance of the contract, another strong reason exists why the policy should
not be revived. The parties do not stand on equal ground in reference
to such a revival. It would operate most unjustly against the company.
The business of insunance is founded on the law of averages ; that of life
insurance eminently so. The average rate of mortality is the basis on
which it rests. By spreading their risks over a large number of cases, the
companies calculate on this average with reasonable certainty and safety.
Anything that interferes with it deranges the security of the business. If
every policy lapsed by reason of the war should be revived, and all the back
premiums should be paid, the companies would have the benefit of this aver-
age amount of risk. But the' good risks are never heard from ; only the
bad are sought to be revived, where the person insured is either dead or
dying. Those in health can get new policies cheaper than to pay arrearages
on the old. To enforce a revival of the bad cases, whilst the company
necessarily lose the cases which are desirable, would be manifestly luijust.
An insured person, as before stated, does not stand isolated and alone.
His" case is connected with and corelated to the cases of all others insured
by the same company. The nature of the business, as a whole, must be
looked at to understand the general equities of the parties.
We are of opinion, therefore, that an action cannot be maintained for the
amount assured on a policy of life insurance forfeited, like those in ques-
tion, by non-payment of the premium, even though the payment was
prevented by the existence of the war.
The question then arises, Must the insured lose all the money which has
been paid for premiums on their respective policies'? If they must, they
will sustain an equal injustice to that which the companies would sustain
by reviving the policies. At the very first blush, it seems manifest that
justice requires that they should have some compensation or return for the
234 N. Y. LIFE INSUKANCE CO. V. STATHAM ct al. [CHAP. IL
mouey already paid, otherwise the companies would be the gaiuers from
their loss; and that from a cause for which neither party is to blame.
The case may be illustrated thus : Suppose an inhabitant of Georgia had
bargained for a house, situated in a Northern city, to be paid for by instal-
ments, and no title to be made until all the instalments were paid, with a
condition that, on the failure to pay any of the instalments when due, the
contract should be at an end, and the previous payments forfeited ; and
suppose that this condition was declared by the parties to be absolute and
the time of payment material. Now, if some of the instalments were paid
before the war, and others accruing during the war were not paid, the con-
tract, as an executory one, was at an end. If the necessities of the vendor
obliged him to avail himself of the condition, and to resell the property
to another party, would it be just for him to retain the money he had
received? Perhaps it might be just if the failure to pay had been volun-
tary, or could, by possibility, have been avoided. But it was caused by
an event beyond the control of either party, — an event which made it
unlawful to pay. In such case, whilst it would be unjust, after the war,
to enforce the contract as an executory one against the vendor contrary to
his will, it would be equally unjust in him, treating it as ended, to insist
upon the forfeiture of the money already paid on it. An equitable right
to some compensation or return for previous payments would clearly result
from the circumstances of the case. The money paid by the purchaser,
subject to the value of any possession which he may have enjoyed, should,
ex cequo et bono, be returned to him. This would clearly be demanded by
justice and right.
And 60, in the present case, whilst the insurance company has a right to
insist on the materiality of time in the condition of payment of premiums,
and to hold the contract ended by reason of non-payment, they cannot with
any fairness insist upon the condition, as it regards the forfeiture of the
premiums already paid ; that would be clearly unjust and inequitable.
The insured has an equitable right to have this amount restored to him,
subject to a deduction for the value of the assurance enjoyed by him whilst
the policy was in existence ; in other words, he is fairly entitled to have
the equitable value of his policy.
As before suggested, the annual premiums are not the consideration of
assurance for the year in which they are severally paid, for they are equal
in amount; whereas, the risk in the early years of life is much less than in
the later. It is common knowledge, that the annual premiums are in-
creased with the age of the person applying for insurance. According to
approved tables, a person becoming insured at twenty-five is charged about
twenty dollars annual premium on a policy of one thousand dollars, whilst
a person at forty-five is charged about thirty-eight dollars. It is evi-
dent, therefore, that, when the younger person arrives at forty-five, his
policy has become, by reason of his previous payments, of considerable
J
SECT. III.] N. Y. LIFE INSURANCE CO. V. STATHAM ct Cll 235
value. Instead of having to pay, for the balance of his life, thirty-eight
dollars per annum, as he would if he took out a new policy on which noth-
ing had been paid, he has only to pay twenty dollars. The diiference
(eighteen dollars per annum during his life) is called the equitable value of
his policy. The present value of the assurance on his life exceeds by this
amount what he has yet to pay. Indeed, the company, if well managed,
has laid aside and invested a reserve fund equal to this equitable value,
to be appropriated to the payment of his policy when it falls due. This
reserve fund has grown out of the premiums already paid. It belongs, in
one sense, to the insured who has paid them, somewhat as a deposit in a
savings-bank is said to belong to the person who made the deposit. Indeed,
some life-insurance companies have a standing regulation by which tliey
agree to pay to any person insured the equitable value of his policy when-
ever he wishes it ; in other words, it is due on demand. But whether thus
demandable or not, the policy has a real value corresponding to it, — a value
on which the holder often realizes money by borrowing. The careful capi-
talist does not fail to see that the present value of the amount assured
exceeds the present value of the annuity or annual premium yet to be paid
by the assured party. The present value of the amount assured is exactly
represented by the annuity which would have to be paid on a new policy ;
or, thirty-eight dollars per annum in the case supposed, where the party is
forty-five years old ; whilst the present value of the premiums yet to be
paid on a policy taken by the same person at twenty-five is but little more
than half that amount. To forfeit this excess, which fairly belongs to the
assured, and is fairly due from the company, and which the latter actually
has in its coffei's, and to do this for a cause beyond individual control, would
be rank injustice. It would be taking away from the assured that which
had already become substantially his property. It would be contrary to
the maxim that no one should be made rich by making another poor.
We are of opinion, therefore, first, that as the companies elected to insist
upon the condition in these cases, the policies in question must be regarded
as extinguished by the non-payment of the premiums, though caused by
the existence of the war, and that an action will not lie for the amount
insured thereon.
Secondly, that such failure being caused by a public war, without the
fault of the assured, they are entitled ex aequo et bono to recover the equita-
ble value of the policies with interest from the close of the war.
It results from these conclusions that the several judgments and the
decree in the cases before us, being in favor of the plaintiffs for the whole
sum assured, must be reversed, and the records remanded for further pro-
ceedings. We perceive that the declarations in the actions at law contain
no common or other counts applicable to the kind of relief which, according
to our decision, the plaintiffs are entitled to demand ; but as the question
is one of first impression, in which the parties were necessarily somewhat in
236 N. Y. LIFE INSURANCE CO. V. STATIIAM ct al. [cHAP. II.
the dark with regard to their precise rights aad remedies, we think it fair
and just that they should be allowed to amend their pleadings, lu the
equitable suit, perhaps, the prayer for alternative relief might be sufficient
to sustain a proper decree ; but, nevertheless, the complainants should be
allowed to amend their bill, if they shall be so advised.
In estimating the equitable value of a policy, no deduction should be
made from the precise amount which the calculations give, as is sometimes
done where policies are voluntarily surrendered, for the purpose of discour-
aging such surrenders ; and the value should be taken as of the day when
the first default occurred in the payment of the premium by which the
policy became forfeited. In each case the rates of mortality and interest
used in the tables of the company will form the basis of the calculation.
The decree in the equity suit and the judgments in the actions at law are
reversed, and the causes respectively 7'emanded to he proceeded with
according to law and the directions of this opinion.
Waite, C. J. I agree with the majority of the court in the opinion that
the decree and judgments in these cases should be reversed, and that the
failure to pay the annual premiums as they matured put an end to the poli-
cies, notwithstanding the default was occasioned by the war ; but I do not
think that a default, even under such circumstances, raises an implied
promise by the company to pay the assured what his policy was equitably
worth at the time. I therefore dissent from that part of the judgment just
announced which remands the causes for trial upon such a promise.
Strong, J. While I concur in a reversal of these judgments and the
decree, I dissent entirely from the opinion filed by a majority of the court.
I cannot construe the policies as the majority have construed them. A
policy of life insurance is a peculiar contract. Its obligations are unilateral.
It contains no undertaking of the assured to pay premiums : it merely
gives him an option to pay or not, and thus to continue the obligation of
the insurers, or terminate it at his pleasure. It follows that the considera-
tion for the assumption of the insurers can in no sense be considered an
annuity consisting of the annual premiums. In my opinion, the true mean-
ing of the contract is, that the applicant for insurance, by paying the first
premium, obtains an insurance for one year, together with a right to have
tlie insurance continued from year to year during his life, upon payment of
the same annual premium, if paid in advance. Whether he will avail him-
self of the refusal of the insurers, or not, is optional with him. The pay-
ment ad diem of the second or any subsequent premium is, therefore, a
condition precedent to continued liability of the insurers. The assured
may perform it or not, at his option. In such a case, the doctrine that
accident, inevitable necessity, or the act of God, may excuse performance,
has no existeuce. It is for this reason that I think the policies upon which
these suits were brought were not in force after the assured ceased to pay
SECT. III.] THOMAS V. BROWN. 237
premiums. And so, though for other reasons, the majority of the coni-t
holds ; but they hold, at the same time, that the assured in each case is
entitled to recover the surrender, or what they call the equitable, value of
the policy. This is incomprehensible to me. I think it has never before
been decided that the surrender value of a policy can be recovered by an
assured, unless there has been an agreement between the parties for a sur-
render; and certainly it has not before been decided that a supervening
state of war makes a contract between private parties, or raises an impli-
cation of one.
Clifford, J., with whom concurred Hunt, J., dissenting.
Where the parties to an executory money-contract live in different coun-
tries, and the governments of those countries become involved in public
war with each other, the contract between such parties is suspended during
the existence of the war, and revives when peace ensues ; and that rule, in
my judgment, is as applicable to the contract of life insurance as to any
other executory contract. Consequently, I am obliged to dissent from the
opinion and judgment of the court in these cases.
(c.) Plaintiff relying on the Statute of Frauds.
THOMAS V. BROWN.
In the Queen's Bench Division, May 26, 1876.
/ {Reported in Law Reports, 1 Queen's Bench Division, 714.]
Interpleader issue obtained in an action brought by the plaintiff against
Croucher, an auctioneer, to recover a deposit.
The following case was stated for the opinion of the court : —
1. The defendant, previously to the 10th of May, 1875, had advertised a
leasehold shop and premises at Hornsey Rise, Middlesex, to be sold by auction
by E. E. Croucher, an auctioneer, at the Mart in the city of London, on the
10th of May, 1875, under printed particulars and conditions of sale. Pre-
vious to the day of sale the plaintiff was in communication with the auc-
tioneer as to the purchase of the premises, and received from him the
particulars and conditions. In the particulars the property was described
as "held under a lease dated the 5th of December, 1856, for an unexpired
term of 80^ years, and as leased to Mr. Miles, a draper, for the term of 21
years from the 26th of March, 1871."
The following conditions of sale are material : —
" Sixth. The said lease and the counterpart of the under-lease will be
produced at the sale, and may be inspected at the office aforesaid during
three days previous to the day of sale, and no objection shall be taken to
H
238 THOMAS V. BEOWN. [CHAP. II.
any matter contained in or omitted from the same lease or under-lease.
The production of the receipt for the rent last due shall be taken as con-
clusive evidence of the performance of insurance, and all other leases and
covenants, in respect of the lot, up to the day of completing the purchase,
whether the purchaser shall or shall not have had notice of any breach
of any particular covenant, and the purchaser shall not object that anv in-
strument is unstamped, or not sufficiently stamped, or to the non-registra-
tion of any deed or document in Middlesex, and no evidence of identity
/ shall be required."
" Niuth. If any mistake be made in the description of the property, or
\ any other error shall appear in the particulars of sale, such mistake or
error (if capable of compensation) shall not annul the sale, but a compensa-
tion shall be allowed or given by the vendor or purchaser as the case may
require ; such compensation in case of dispute to be settled by arbitration
in the usual way."
" Lastly. If the purchaser shall fail to comply with any of the above
,1j conditions, his deposit money shall be forfeited to the vendor, who shall be
rjl at liberty (with or without notice) to resell the premises by public auction
/ or private contract, without the necessity of previously tendering an as-
signment to the defaulter, and such new sale or sales may be made at
such time or times, and subject to such conditions and in such manner in
all respects, as the vendor shall think proper. And if on or after such
resale there shall be any loss to the vendor, either by reason of a deficiency
ti of price, or by reason of costs, charges, or expenses incurred by him, or
A both, the purchaser shall make good such loss to the vendor, as and for
liquidated damages, and on any such resale by auction the premises offered
for sale may be bought in, and all expenses of and attending an unsuccess-
ful attempt to sell may immediately thereupon be recovered from the
defaulter."
2. On the 10th of May, 1875, the plaintiff did not attend the sale at the
mart, but she afterwards signed the following contract, which was partly
printed and partly in writing, on the back of one of the printed particulars
and conditions of sale : —
3femorandum.
I, the undersigned Hannah Thomas, of 3 Peter's Lane, West Smithfield,
. do hereby acknowledge that I have this day purchased the property de-
•^''-^^v. ♦-'^ scribed in the within particulars, subject to the foregoing conditions of sale,
at the price of seven hundred pounds, and that I have paid- into the hands
of the auctioneer the sum of seventy pounds as a deposit and in part pay-
ment of the said purchase-money : and I hereby agree with the vendor to
pay thu remainder of the said purchase-money to complete the purchase
according to the within conditions of sale.
As witness my hand the 10th day of May, 1875.
(Signed) II. Thomas.
V
SECT. III.] THOMAS V. BROWN. 239
£ s. d.
Purchase-money 700 0 0
Deposit-money p,aid 70 0 0
Kemaining to be paid ...... 630 0 0
As agent for the vendoi* I ratify this sale, and as auctioneer acknowledge
the receipt of thgjieposit.
Witness, A. N. Stuttard. Edwd, E. Croucher.
3. On or about the 15th of May, 1875, the following letter, and the
abstract therein referred to, were received by Messrs. Keen & Rogers, the
plaintiffs solicitors : —
Herewith I send abstract of title. The deeds may be examined at my
office at any time you may appoint.
■Jno. Eraser.
4. In reply Messrs. Keen & Rogers wrote : —
15tli May, 1875.
Without prejudice to any question which may arise as to the contract of
purchase herein, we beg to name Tuesday next at 2 o'clock to examine
abstract of title, with deeds, on behalf of Mrs. Thomas.
5. From the abstract of title, it for the first time appeared that the de-
fendant was the owner of the property the subject-matter of the contract of
the 10th of May, 1875.
6. Messrs. Keen & Rogers, having examined the abstract with the title-
deeds, on the 21st of May, 1875, wrote to the defendant's solicitor: —
" We forward you herewith a few requisitions on the title, and shall be
glad to receive your replies at your early convenience."
Accompanying, and at the foot of the requisitions above-mentioned, was
a note as follows : —
" The above requisitions are made without prejudice to any question
which may arise as to the contract for the purchase of the premises."
7. On the 22d of May, 1875, the defendant's solicitor wrote to the
plaintiff's solicitors, " Herewith I return requisitions with answers."
8. On the 2d of July the defendant's solicitor wrote to the plaintiff's
solicitors : —
" Please let me have draft assignment at your early convenience."
And on the 9th of July the defendant's solicitor wrote to the plaintiff's
solicitors as follows : —
"Brown & Thomas, — I have just been informed by Mr. Croucher that
your client does not intend to complete her purchase, please let me know
whether my information is correct; if it is I shall immediately instruct
counsel to draw bill for specific performance."
240
THOMAS V. BROWN.
[CIIAP. IL
^L
rl-
>-l>
t!
9. The plaintiff's solicitors repudiated the contract of the 10th of May,
1875, and on the 23d of July commenced an action against Croucher for
the recovery of the 701. which had been paid to him by the plaintiff on the
signing of the contract.
. 10. The defendant has always been ready and willing to assign the pur-
chased property to the plaintiff in pursuance of the above contract, and no
question has been raised on the answers to the requisitions, but one of the
grounds of the repudiation was that the contract of the 10th of May, 1875,
did not disclose the name of the vendor.
The questions for the opinion of the court are, 1. Whether the contract
of the 10th of May, 1875, is a valid contract. If the court shall be of
opinion in the affirmative, the judgment is to be entered for the defendant.
2. If the court shall be of opinion in the negative, the second question is
whether the plaintiff is entitled to recover back the deposit paid under the
above circumstances.
Fullarton, IIoll with him, for the plaintiff.
J. Thompson, Salter, Q. C, with him, for the defendant.
Cur. adv. vult.
The following judgments were delivered : —
Mellor, J. This is an interpleader issue to try the plaintiff's right to
recover 70Z. paid by her as a deposit on the purchase of some leasehold
property. The facts are stated in a case for the opinion of the court. (The
learned judge stated the principal facts, and proceeded.) Tlie two ques-
tions for our consideration ai'e, first, whether the contract was a valid ^on-
fract, aiiHT^condh-, if it was not, whether the plaintiff is, under the
cTrCTImstances, entitled to recover back th^ deposit. I am of opinion that
"mTFJudgment ought to be for the defendant. Several cases have been de-
cided on the point now raised, particularly two cases which came before
the Master of the Rolls : Sale*'. Lambert^ and Potter v. Duffield.* In the
first of these cases a memorandum of agreement was held to be sufficient
within the statute of frauds, though the vendor was not described other-
wise than as " the proprietor " of the premises, the IMaster of the Rolls
saying that the term " proprietor " was an excellent description, and appar-
ently holding that this word, with nothing else in the document to enlarge
it, was quite suificient. Now, comparing this decision with the later one,
Potter V. Dufficld,'^ where the same learned judge held that the description
" vendor " was insufficient, I h.ave some difficulty in assenting to it. I think,
however, that we ought to hold ourselves bound by the last of these two
■ cases, holding that the word " vendor " is insufficient, though, as far as my
judgment goes, I can see no distinction between the nature of the memo-
randum in either case. I think that the description which should enable
us to dispense with tlie actual names of the parties oiight to be very pre-
cise and exact, and that in neither of the cases was this requirement com-
1 L. i;. IS Kq. 1. 2 I,. R. 18 Eq. 4.
SECT. III.] THOMAS V. BROWN. 241
plied with. To allow so general a descriptiou to satisfy the statute seems
to me to lead to all the mischief which it was intended to prevent, and I
I think that no description ought to be held sufficient except where it identi-
j fies the party without the necessity of resorting to pai'ol evidence. How-
jever, it is unnecessary to consider whether these cases were or were not
rightly decided, for I think that the defendant is entitled to our judgment
on two grounds. The main object of the interpleader issue is to ascertain
whether the 70i'. belongs to one or other of the two parties, and the case in
Beavan's Keports, C^asson v. Eoberts,-' where it was held that a contract
under similar circumstances could not be enforced, is, I think distinguisha-
ble, in spite of some strong expressions of Lord Romilly. Here, there are
two answers to the claim to have the money paid back to the vendee.
First, on the face of these conditions of sale it is obvious that the plaintiff
paid~tbe"^eposrndiowing aFtlTe time that the name of the defendant did
not appear on the memoranduinof agreement otherwise than as " the
h"e"~v^tuiYtMu!y "pard~~rhe^ TO^^^with full knowledge that the
vendor's name was not disclosed on the contract, and so far accepted
tbe^ description as sufficient Under these circumstances, I thixiE^He
cannot recover back the money.
Secondly, under the fourth condition of sale ^ " the vendor shall, within
seven days from the day of sale, deliver to the purchaser or his solicitor an
abstract of title to the property purchased by him, subject to the stipula-
itions contained in the conditions. And the purchaser shall, within seven
(lays from the delivery of the abstract, deliver to the vendor's solicitor a
Statement in writing of his objections and requisitions (if any) to or on the
{title as shown by such abstract, and upon the expiration of such last-men-
tioned time the title shall be considered as approved of and accepted by the
jpurchaser, subject only to such objections and requisitions (if any), and
jtime shall be deemed to be as of the essence of this condition, as well in
equity as at law." Now, what did the plaintiff do 1 If she had intended
to insist on her right to rescind the contract on the ground that the memo-
randum was insufficient, it was her duty to send back the abstract, saying,
I ' Why do you send this to me ] " She, however, does not send it back, but
jceeps it, and her solicitors write this letter : " Dear Sirs, — Without preju-
[lice to any question which may arise as to the contract of purchase herein,
kve beg to name Tuesday next, at two o'clock, to examine abstract of title
^vith deeds, on behalf of Mrs. Thomas."
{ Now I cannot conceive anything more unlikely than that a solicitor
prould allow his client's title-deeds to be examined while there was a doubt
ka to the validity of the contract of sale. But the plaintijlTs^soIicitorsjiro-
peedto examine the abstract, and learn from it the name of the vendor.
1 31 Beav. 613; 32 L. J. Ch. 105.
^ This coiulition was not set out in this case, but a copy of the conditions was by
ionsent referred to during the argument.
VOL. II. — 16
242
THOMAS V. BROWN.
[CIIAP. II.
\
Then tlicj_kecp the abstract in their possession, as if the only question
which could arise was as to the title, and write a letter inclosing requisi-
tK)ns as to the title, puttnig at the toot of the requisitions the words, " The
above requisitions are made without prejudice to auy question that may
arise as to the contract for the purchase of the premises." I take the word
" objection " to mean any unforeseen objection to the title which the plain-
tiff's solicitors did not wish to be taken to have waived. The requisitions
are returned with answers, the correspondence goes on, and finally, on the
9th of July, the defendant's solicitor writes that he has been informed that
the plaintiff does not intend to complete her purchase, and that if this be
true he shall take proceedings. To this the plaintiff's solicitors reply
repudiating the contract.
Now I feel no doubt that the case comes within the rule laid down in
Cornish v. Abiugton,^ that, " if nny pprsnn_by nptnni pvprpssinns^ nr_hy^
course of conduct, so conducts himself that another may reasonably infer
the existence of an agreement or licence, and acts upon such^ inference,
whether the former mten"ds^hat he should"^o so or not, the party using
that language or who has so conducted himself, cannot afterwards gainsay
the reasonable inTerence t^ be drawn from his words or conduct.^ I think
this is an express authority which quite justifies us in holding that it does
not lie in the mouth of the vendee, who has accepted a contract like this,
afterwards to object to it. For this reason I think we cannot say that the
contract is invalid.
Then there is a second answer. In an action like the present, for money
had and received, the plaintiff can only recover money paid without TcnowT-
edge of the real facts, — in ignorance of facts which, if they had been known,
would have lefTthe plaintiff an option whether she would pay or not. The
ruleTsTaid^ down by Patteson, J., in Duke of Cadaval v. Colhns,'* that
money paid under compulsion of law cannot be recovered back as mouey
had and received ; and, further, " where there is bona fides and money is
paid with full knowledge of the facts, though there be no. debt, still it can-
not be recovered back." It is unnecessary to allude to the difference be-
^"^^'^tween ignorance of the law and ignorance of the facts. Now, is there
anything unconscientious in the defendant keeping this money] I can see
J nothing. The breaking ofiF of the agreement was not in any sense the
fault of the vendor. He was always ready and willing to complete the
purchase and execute a conveyance, but the vendee chooses to set up this
question about the statute of frauds, and to say, " Although I can have
the contract performed if I please, I repudiate it." Under these circum-
stances, I think it would be quite monstrous if the plaintiff could recover,
and I am glad to think that the authorities are all opposed to her claim.
Qdain, J. I am of the same opinion. I do not propose to discuss the
cases which have been cited ; I will merely say that I have great difficulty
1 4 H. & N. 549; 28 L. J. Ex. 262. » 4 A. & E. 858.
^
SECT. III.] PIIILBROOK V. BELKNAP. 243
ill reconciling the two decisions of the Master of the Rolls. ^ut^I decide_
this cause on the ground that it is an action l)y an unwilling vendee against
a willing vendor, and that it cannot be said that the consideration has
failed so as to entitle the plaintiff to recover. By the 10th paragraph of
the case it appears that the defendant has always been ready and willing to
assign the purchased property to the plaintifl' in pursuance of the contract ;
in short, to give the plaintiff all that was bargained for. Now where, i
upon a verbal contract for the sale of land, the purchaser pays the deposit
and the vendor is always ready and willing to complete, I know of no|| Xs
authority to support the purchaser in bringing an action to recover backj
the nnoney. Secondly, we must consider the peculiar position of the parties
as disclosed by the correspondence. It appears that after the purchasers ^
received the abstract the solicitors examined it with the deeds and made 1 ""^ ""^
requisitions. These were acts which assumed that a contract existed, and p-'^ ^^^^Z,ur^/>-^u,^
yet the plaintiff now proposes to take proceedings upon the footing that "P^- ^ <='— ^^ 4^- /CL,
there was no contract at all. It will, no doubt, be said that everything was
Idone "without prejudice to any question which might arise as to the con- -
itract of purchase," and that this reservation having been assented to, the
'defendant is bound by it. But, in my opinion, the words " without preju-
[dice to any question which may arise " mean any question in the execu-
tion of the contract, and not any question as to the existence of the
contract. I think that no solicitor would understand the plaintiff as re-
Iserving any question as to the existence of the contract. Under such cir-
jcumstances the plaintiff is not entitled to recover the deposit. With
regard to the case of Casson v. Roberts,^ I do not think that it has much
bearing upon the present question, but I must say that I do not think the
ireasons upon which it proceeded are satisfactory.
Judgment for the defendant.
ALFRED PHILBROOK v. WILLIAM BELKNAP.
In the Supreme Court op Vermont, March, 1834.
\Reported in 6 Vermont Reports, 383.]
This was an action on book account, referred to auditors in the County
[/Ourt, who found for the defendant, and made the following special report
f the facts in the case : —
" The plaintiff produced the following account, to wit : —
William Belknap to Alfred Pliilbrook Dr.
831, Oct. 1. To labor 5J months, commencing 11th April, 1831, and ending
about the last day of September following, at $8.00 per month . . . $44.00
1 31 Beav. 613; 32 L. J. Ch. 105.
244 PHILBROOK V. BELKXAP. [CIIAP, II.
" The defendant produced no account. The plaintiff offered himself to
testify to his account, to which the defendant objected ; he, the defendant,
oflFering to prove that the labor charged was done under a contract by the
parties that plaintiff should labor for defendant three years, which was not
performed on the part of the plaintiff. The objection was overruled, and the
plaintiff sworn and testified in the case. The defendant was also sworn with-
out objection and testified in the case. The plaintiff having testified that
he performed the labor, that it was worth the sum charged, and that he liad
received no pay therefor, rested his case. The defendant then offered to
prove that the labor charged was performed under a contract, that plaintiff
was to labor for defendant three years, at eight dollars per month, which con-
tract plaintiff had violated, by refusing to labor other than the five and a
half months as charged. To this evidence the plaintiff objected that such
testimony was irrelevant, and would constitute no defence in law. The ob-
jection was overruled and the testimony admitted, the parties having both
testified relating to the amount. The defendant and sundry other wit-
nesses having also been examined, the auditor finds the following facts in
the case: That in April, 1831, the plaintiff", having had some practice in
edge-tools, applied to defendant, who was a master millwright, to hire out
to defendant to work with him at the defendant's trade, when it was agreed
by the parties that plaintiff should work for defendant at said trade three
years, at eight dollars a month, the defendant to instruct the plaintiff in the
art or trade of a millwright ; but if plaintiff' left the defendant before the
end of the three years, unless in case of sickness, plaintiff to have nothing
for his labor. The plaintiff then, in April, 1831, commenced laboring with
defendant, and continued for five months and a half, during which time he
was a faithful laborer at the trade, and well earned the defendant the sum
charged in plaintiff's account, the defendant having the whole of said time
received in goods out of different stores one dollar per day and board for
the plaintiff's services, for which the plaintiff had received no pay ; that
defendant, during said time, boarded and properly instructed the plaintifif
in said trade ; that at the end of said five and a half months, plaintiff gave
notice to defendant, that unless his wages were raised to one hundred and
twenty dollars per year, he should quit, which being refused by defendaut,
plaintiff did quit, against the will of the defendant, said employment and
town, without any reasonable cause, and has never since returned or
offered to return to defendant's employment ; that said contract between
the parties was verbal and never reduced to writing. Whereupon, the
auditor, after offering the parties to refer the law arising upon the
facts to the court (which they declined), reports that there is nothing
due from cither party to balance book accounts, (the auditor having
disallowed the only item in the case), whereupon finds for the defendant
his cost."
The County Court revers(?d this decision of the auditor, and gave judg-
SECT. III.] PHILBKOOK V. BELKNAP. 245
ment for the plaintiff. To this the defendant excepted, whereupon the
cause passed to tiiis court for further adjudication.
Smith and Peck for the phiiatilf.
The opinion of the court was pronounced by
PuELPS, J. Tliis case comes before us upon a special report of the audi-
tor. It seems that the auditor, upon the facts stated in his report, found
for the defendant ; the County Court reversed that decision, and gave judg-
ment for the plaintiff. To this the defendant excepted, and the question
now is, which of the parties, upon the facts found, is entitled to judgment.
An exception is taken to the form of the action which we do not think well
founded. If the plaintiff be entitled to recover at all, the claim becomes a
mere claim for services at a fixed monthly compensation, and an ordinary
subject of book charge, and of recovery in this form of action. The objec-
tion that the special contract precludes a recovery, depends upon the terms
and effect of that contract, and goes to the merits, rather than the form of
the action. The effect of the contract upon this question depends upon
the inquiry whether the performance of the labor is a condition precedent
to the right of recovery, or, on the other hand, whether the promises are
independent.
The subject of dependent and independent covenants, or promises, is
much perplexed, and so much ingenuity and learning have been expended
upon it, that, like some other branches of the law, it seems to be involved
in a sort of artificial embarrassment. If, in this case, the plaintiff had
stipulated for a gross sum, to be paid at the expiration of his service, the
performance of the labor would doubtless be regarded as a condition prece-
dent. But ai the compensation was at a certain rate per month, if it should
appear that payment was to be made as fast as it was earned, the case would
be different. The auditor does not report when the wages were to be paid ;
but fortunately there is a fact stated in the report, which relieves us from
all difficulty on the subject. It is clearly competent for the parties to make
their undertakings dependent, or independent, as they deem expedient ; and
where their intent is ascertained, it is decisive of the question. In this
case, the stipulation that the plaintiff should have nothing for his services,
if he left the service of the defendant before the expiration of the three
years, makes the performance of the whole service a condition precedent ;
and if that part of the contract be binding upon him, he cannot recover.
It is argued, however, that the contract is void, by force of the statute
of frauds. Admitting that this contract is within the terms of the statute,
yet it may be well to inquire, what is the effect of the statute upon it.
Although it is common to speak of a contract as void by the statute of
frauds, yet, strictly speaking, the statute does not make the contract void,
except for the purpose of sustaining an action upon it, to enforce it. The
statute provides that no action shall be sustained upon certain contracts,
unless they are evidenced by writing. It operates, therefore, upon the con-
246 riiiLBRooK V. belknap. [chap. II.
tract only while it is executory. It does not make the performance of such
a contract unlawful, but, if the parties choose to perform it, the contract
remains in full force, notwithstanding the statute, so far as relates to the
legal effect and consequences of what has been done under it. Hence a
party may always defend under such a contract, when sued for any act
done under it. Thus, suppose a crop of grass is sold by parole, and the
vendee enters upon the land and cuts it. If an action of trespass should
be brought against him, by the vendor, upon the ground that the contract
was void, still, although the contract is within the statute, it would furnish
a sufficient defence, because it is executed. This very case all'ords an illus-
tration of the effect of the statute. If the defendant had sued the plaintiff
for not performing the contract, in not serving the full period, the case
would be open to a defence under that statute ; the contract being, to the
purposes of such a suit, executory, and the attempt being to sustain an ac-
tion on it as such. But in this case, the contract, so far as the service has
been performed, is executed, and is relied on as regulating and determining
the right of the plaintiff to compensation for what has been done under it.
We are here concerned only with what has been done. The question is,
what the plaintiff is entitled to for his labor ; and this depends upon the
terms of the contract under which he performed the service. Had the
whole service been performed, the rate of compensation would, without
doubt, be regulated by the terms of the contract. No court would discard
that contract, and resort to a qnanUim meruit. The principle is the same
as to a performance in part. The defendant may be without remedy for
the desertion of the plaintiff, but he may certainly protect himself as to
what has been done.
Any other rule would be productive of monstrous injustice, and make
the statute an instrument of fraud. It is on this ground that courts of
equity will enforce a contract of such a nature, which is partly performed,
where the party cannot be made good without a full performance. The
statute was merely intended to prevent frauds by setting up and enforcing,
by parol proof, simulated contracts, and hence is called the statute of frauds
and perjuries. It was not intended to vary or control contracts which the
parties have voluntarily carried into effect ; nor to deprive parties of the
protection of such stipulations as they may have made for their security,
and in reliance upon which they have acted.
This Construction is the only safe one that can be given to the statute,
and it is the only one which has ever been given to it. Suppose a party
enters into possession, under a parol lease for years ; was it over imagined
that he could be made liable as a trespasser 1 Suppose a promise to pay
the debt of another, and the debt actually paid. AVas it ever attempted
to recover back the money by force of the statute 1
We are the more satisfied with this view of the subject, as we are per-
suaded that full justice will be done by it. The plaintiff is doubtless
SECT. III.] COLLIER V. COAXES. 247
amply compensated for the loss of the stipulated wages by the instruction
received and the enhanced wages which he may obtain elsewhere in conse-
quence ; and the defendant gains nothing, as he loses the services of the
plaintiff when they become more valuable.
It only remains to add that this case falls most clearly within the deci-
sion of Hair v. Bell.^
Judgment reversed, and judgment for the defendant.
COLLIER V. COATES.
In the Supreme Court of New York, March 6, 1854.
[Reported in 17 Barbour, 471.]
This was an appeal from a judgment of the Steuben County Court.
The action was commenced before a justice of the peace, to recover back
the sum of $65 which had been paid by the plaintiff upon a parol contract
for the sale of a farm by the defendant to the plaintiff. The complaint was
for money lent, and money paid. The defendant denied the allegations in
the complaint, and stated that if he had received any money from the
plaintiff it was upon the condition that the defendant would enter into
a written agreement with the plaintiff, at a future day, which the defendant
alleged he was, and at all times had been, ready to do, and he further
averred that he had suflered great damage and expense by reason of the
plaintiff not performing his agreement. A parol agreement between the
parties, for the sale of the defendant's farm to the plaintiff, was proved,
and the price was agreed upon. The plaintiff paid to the defendant $65
upon the contract, and was to pay, within a week or ten days, enough more
to make $200 ; and then a written contract was to be executed by the
parties. Subsequently the plaintiff came back and told the defendant
he could not make out the $200, and therefore could not take the farm,
and he sent word to the defendant, by his sou, that he, the defendant,
might have the $65 the plaintiff had paid him for his damages, or he
might pay back some part of it if he could afford to. The jury found a
verdict in favor of the plaintiff for $65, and the justice rendered judg-
ment for that sum, with costs. On appeal the County Court affirmed the
judgment.
R. B, Van ValJcenhurgh fur the appellant.
Campbell and Rogers for the respondent.
By the Court. — Johnson, J. I regard the rule as well settled, in this
country, at least, that where a person has paid money upon a parol con-
tract for the purchase of lands, which is void by the statute of frauds, he
1 6 Vt. 35.
248 COLLIER V. COATES. [CILVP. IL
canuot maintain an action to recover back the money so paid, so long as
the other party to whom the money has been paid is willing to perform on
his part.
The doctrine has been twice distinctly declared in our own court, where
the question was directly before it. Abbott v. Draper ; ^ Dowdle v. Camp.'
The same question has been decided in the same way repeatedly in several
of the courts of our sister States, where the point was directly involved.
Coughhn V. Knowles ; * Thompson v. Gould ; * Duncan v. Baird ; ^ Lane v.
Shackford;® Shaw v. Shaw;'' Richards v. Allen;® Sims v. Hutchius;'
Beaman v. Buck ; '^'^ McGowen v. West ; " Rhodes' Adm'r v. Stow ; ^'- Dough-
erty V. Goggin.^' In several of the cases above cited, the facts are almost
identical with those of the case at bar. All the cases agree that if the
party receiving the money refuses to perform the agreement, such as it is,
on his part, the action lies.
I doubt whether any well considered case can be foimd in the courts of
this country, where the rule above laid down has been denied or even
doubted. Rice v. Feet " is cited as holding a contrarj' doctrine, but it does
not. That case turned upon the insanity of the plaintiff at the time of
making the trade and turning out the note, which fact the court considered
as established by the verdict of the jury. The court do indeed say that the
plaintiff might have recovered upon the ground that the contract for the
exchange of farms, on which the money was received, being by parol, was
void. But the decision was evidently not placed upon that ground. And
besides, although the defendant in that case alleged in his plea that the
plaintiff had failed in performing his agreement, no evidence seems to have
been given upon the subject, and there is nothing in the case to show who
was, in fact, in fault in not carrying out the agreement to exchange farms.
The decision upon the point presented by the finding of the jury does not
impugn the principle contended for, and at most can only be regarded as
a dictum the other way. But it is contended by the learned and ingenious
counsel for the plaintiff that neither Dowdle v. Camp nor Abbott v. Draper
are authorities against the plaintiff's right to recover, because in each of
those cases the plaintiff was in possession of the premises purchased, and
might have enforced a specific performance of the agreement in a court, of
equity. In that respect, it is true, the two cases above cited differ from
the case here, although several of the other cases cited do not. But I am
unable to perceive how that circumstance affects the principle upon which
the plaintiff claims the right to recover. The foundation of his claim is
that the money was paid without consideration. That is, that having been
1 4 Denio, ^,\. 2 12 Jobns. 451. » 7 Met. 57.
* 20 Pick. 132, 142. 5 g Dana, 101. 6 5 jj. h. 133.
7 6 Vt. 75. « 5 Shop. 296. » 8 S. & M. 328.
w 9 S. & M. 'J.')7. " 7 Miss. 569. 12 7 a1. 346.
13 IJ. J. Marsh. 374 ; 2 J. J. Marsh. 5G3. " 15 Johns. 503.
SECT. III.] COLLIER V. COATES. 249
paid upon a promise tnade by the defendant which the hiw would not
compel him to perform, nor mulct him in damages for refusing to perform,
and which was, in short, void by statute, it was paid without any considera-
tion whatever which the law notices or i-egards. But this condition of the
parties is not in the least altered by the purchaser's going into possession,
so far as the validity and force of the agreement is concerned. It is still
void by the statute of frauds, notwithstanding the possession. Nothing is
better settled than this, that part performance of a parol contract void by
statute does not take it out of the statute, or give it any validity in law
as a contract.
To whatever extent either or both of the parties may have gone in the
performance of such a contract, it still remains of no legal or binding force
in law, in every stage up to its full and final performance and execution by
both. If it is conceded that possession by the plaintiff, in addition to the
payment, would have operated to defeat the recovery of the money paid,
the whole ground of controversy is surrendered. It could make no dif-
ference as regards the right of action, so far as the question of considera-
tion is concerned, whether the defendant had in fact performed in part or
whether he was willing and offered to perform. Besides, when the other
party is willing and offers to perform, the question as to whether the
plaintiff could compel him to do so in case of his refusal, does not arise.
It is clear enough that in case of a refusal the action lies, and the refusal
is the ground upon which the action for the recovery is based. Certainly
a willingness or an offer to perform must be regarded as placing the de-
fendant in as favorable a situation as part performance, as regards the
action at law.
Courts of equity, in decreeing the specific performance of such contracts,
do not proceed upon the ground that the contract has any force or validity
hi law, but only that it is binding in conscience, and its performance spe-
cifically is decreed, expressly to prevent fraud, and for the very reason that
in law it is of no force. What courts of equity might do, or refuse to do,
can have no bearing upon the legal efiect of such a contract. The last act
or payment by either party, or both, short of full performance, is as much
without consideration in law as the first. If the rules of equity are to be
permitted to affect the legal right of recovery, the defendant may safely
invoke them in his behalf in the present case. But they are not ; and in
determining the question here, in the action at law, they may as well be
laid entirely out of view. It is by no means a universal rule that money
paid, without a consideration good in law, may be recovered back. There
are several exceptions to it. And I take this to be one which is well
established by numerous adjudications.
The contract here upon which the money was paid, although it was so
far void that the law would lend no aid in enforcing it, was not contrary to
law. It was neither immoral nor illegal. It was one wliich the {parties had
250 COLLIER V. COATES. [CIIAP. II.
a right to make and carry out. There was no fraud or mistake of facts.
The money was voluntarily paid by the plaintiff, upon a promise made by
the defendant, which the former knew at the time he could not oblige the
latter to perform, but which promise, nevertheless, he agreed to accept as
a sufficient consideration for the money parted with. The money was not
received by the defendant as a loan, but as a payment. It was not received
to the plaintiff's use. And as long as the defendant is willing to do what
he agreed to do, in consideration of the payment, the law will not presume
any promise to repay it, but will leave the parties to stand where they
voluntarily placed themselves by their arrangement, until the defendant
refuses to carry it out. Cases of great hardship are suggested as a reason
for the adoption of the rule contended for by the plaintiff's counsel. One
of which is, that otherwise the purchaser under such a contract might go
on making payments until the last ; and although satisfied his bargain is
not an advantageous one, yet bound to make his payments or lose what he
has paid, while the other party all this time is at perfect liberty to repudiate
the arrangement, and may do so at the last moment, to the serious injury
of the purchaser. And it is asked if it is right to give one party such au
advantage over the other 1 It would be easy to suggest cases of hardship
on the other side, if the right to recover in any case were to be controlled
by any such considerations. Take the case at bar, for an example. The
evidence shows that when the plaintiff entered into the arrangement with
the defendant and made the payment, the latter was engaged in putting in
a crop of wheat ; that the plaintiff requested the defendant to suspend
operations, as he would want to put the land to some other use, and that
the defendant did suspend, and waited, expecting the plaintiff to fulfil his
engagement, until it was too late to put in his crop; in consequence of
which he was injured to the amount of over $100.
Jiut suppose the whole purchase price had been paid, and the defendant,
in the confident expectation of the plaintiff's acceptance of the title, had
gone and purchased another farm with the money, and involved himself in
liabilities which would be utterly ruinous should the other party be allowed
to repudiate and recover back the money. It may be asked, would it be
right to allow him to do sol It is sufficiently obvious, however, that
neither the plaintiff's right to recover back the money, nor the defendant's
right to retain it, can rest in, or derive any aid from, such considerations
as these. The principle which governs is more fixed and stable. It is clear
that, by the rules of equity, the plaintiff could not recover until he had
first made the defendant whole for the damage he had occasioned by the
breach of his engagement, or offered to do so. And the law will not, I
think, aid the party thus in the wrong, by presuming a promise of repay-
ment, in his favor, until the other party shall refuse to go on and carry out
the agreement upon which the money was paid. The rule which I suppose
to be established seems to me to be one founded in reason and good sense,
SECT. III.] KING V. WELCOME. 251
which ought to be upheld. Aud I regard it as being too well settled upon
authority to be departed from, except upon the most cogent reasons, and
from the clearest convictions of its unsoundness. I am of opinion, there-
fore that the judgment of the County Court and that of the justice should
be reversed.
CHARLES P. KING v. ABNER P. WELCOME.
In the Supreme Judicial Court of Massachusetts, October Term, 1855.
[Reported in 5 Gray, 41.]
Action of contract on a giianturn meruit, for work and Iabor.done by the
plaintiff for the defendant. Trial in the Court of Common Pleas, The
defence relied on was that the work and labor were done under an entire
contract for one yeai", and that the plaintiff wrongfully left the defendant's
service before the year expired. It appeared that the contract was not in
writing, and bound the plaintiff to labor for one year, to commence at a
future day, two or three days after the making of the contract. The plain-
tiff contended that it was invalid, as being within the statute of fraiicls^
and could not be set up in defence of this action. Byingtox, J., so ruled,
aud directed a verdict for the plaintiff, aud the defendant alleged excep-
tions.
B. Sanford for the defendant.
E. H. Bennett for the plaintiff.
The decision was made in June, 1857.
Thomas, J. This was an action of contract on a quantum meruit, for
labor done by the plaintiff for the defendant. The amount and value of
the plaintiff's services were not disputed, but the defendant relied upon an
express contract by which the plaintiff was to work for an entire year, and
a breach of such contract by wrongfully leaving the plaintiff's service be-
fore the year expired. That contract was not in writing. Byjtstei-ms, the
plaintiff was to labor for one year from a day future. The plaintiff said
that contract was within the statute of frauds, and could not be set up in
defence to the action. So the court ruled.
Rightly, we think ; though, in the light of the authorities, the question
is a nice and difficult one.
Upon the reason of the thing, and looking at the object and purpose
of the statute, the result is clear. So far as it concerns the prevention of
fraud and perjury, the same objection lies to the parol contract, whether
used for the support of, or in defence to an action. The gist of the matter
is, that, in a coui-t of law, and upon important interests, the party shall
not avail himself of a contract resting in words only, as to which the
<M^^I
252 KING V. WELCOME. [ClIAP. II.
memories of men are so imperfect, and the temptations to fraud and per-
jury so great.
The lanfruage of our statute is, that " no action shall be brought upon
any agreement that is not to be performed within one year from the mak-
ing thereof, . . . unless the promise, contract, or agreement upon which such
action shall be brought, or some memorandum or note thereof, shall be
in writing, and signed by the party to be charged therewith, or by some
person thereunto by him lawfully authorized." ^
Looking at the mere letter of the statute, the suggestion is obvious,
that no action is brought upon this contract. But the defendant seeks to
" charge the plaintiff therewith," to establish it by proof, to enforce it in a
court of law, and to avail himself of its provisions. And if the defence
» succeeds, the plaintiff is in effect charged with and made to suffer for the
X breach of a contract which he could not enforce, and which could nut be
I enforced against him.
The difference, it is clear, is not one of principle. To illustrate this, let
us suppose that in the contract, which the defendant seeks to set up in
defence, there had been a provision for the payment of the wages stipu-
lated, by semi-annual instalments. If, upon the expiration of the six
months, the plaintiff had brought an action upon the contract to recover
the instalment, the action could not be maintained ; the statute of frauds
would be a perfect defence. This is settled in the recent case of Hill v.
Hooper.^ But if in an action brought for money lent or goods furnished
to himself or family, he may avail himself of the instalment, by way of
set-off or payment ; the difference is merely one of form, and not of sub-
stance.
Still further, upon the construction of the statute contended for by the
defendant, the laborer in the contract stated would be without remedy.
For if he brought liis action upon the contract for the instalment, the
statute of frauds would be a bar ; if upon a quantum meruit, the express
contract to labor for a year would be a bar.
The sounder construction of the statute, we thmk, is that a contract
\( within its provisions is one which neither party can enforce \i\ a court of
I law. Carrington v. Roots ; ® Reade v. Lamb ; * Comes v. Lamson.^ The
cases in the exchequer go farther than is necessary to sustaui the rule
stated. They hold the contract, as a contract, is void, because it is a con-
tract of which a party cannot avail himself in a court of law. Upon this
point the recent case of Leroux v. Brown ^ is in conflict with them.
This court has not treated the contracts as absolutely void. When fully
[ executed, tliey define and measure the rights of the parties thereto. And
' if this contract had been fully executed, and the plaintiff had earned the
i" price stipulated, and had then brought quantum meruit on the ground that
1 Rev. Sts. c. 74, § 1, cl. 5. 2 i Gray, 131. « 2 M. & W. 248.
< 6 Ex. 130. 6 1(5 Conn. 246. « 12 C. B. 801.
SECT. III.] KING V. WELCOME. 253
his services were reasonably worth more, the contract so executed would
have been a full answer. Stone v. Dennison.^ But this contract was not
performed ; it was, to a great extent, executory. For breach of it by the_^
defendant, no action could be mauitained by the plaintiff. Nor, by parity
JfTeaionT^caiTthe plamtilTs breach ot TFbeset up to defeat his reasona]ole~~
claim for_sf rvices rendered.
But though a contract within the statute of frauds, as a contract, cannot
be enforced in a court of law, it may be available for some purposes.
A parol contract for the sale of land, though not enforceable as a con-
tract, may operate as a license to enter upon the laud, and, until revoked,
be a good answer to an action of trespass by the owner.
So where money has been paid upon a parol contract for the sale of land,:,
it cannot be recovered back, if the vendor is willing to fulfil the contract'!^
on his part. This is settled in the recent case of Coughliu v. Knowles,^ a
case which certainly resembles the one at bar, but which may be clearly
distinguished from it.^ That action rests upon an implied assumpsit. The
implied promise arises only upon the failure of the consideration upon
which the money was paid. The plaintiff fails to show any failure of con-
sideration. He shows the money was paid upon a contract not void, and
which the defendant is ready to perform. The consideration upon which
it was paid exists unimpaired. If the defendant had refused to convey, or
if, as in the case of Thompson v. Gould,* the property had been destroyed
by fire, so that the contract could not be performed by the vendor, there
would be a failure of consideration, from which an implied promise would
arise, and the action could be maintained.
In the case at bar, the plaintiff sliows sf-rvices rendprpd for the defendant.
and their reasonable value. The defendant, admitting the performance of
the labor and its value, says the plaintiff ought not to recover, because he
made an entire contract for a year, which he has not fulfilled. The plain-
tiff replies, that contract was for work for a year from a day future ; it
was within the statute of frauds ; it was not in writing ; it was not exe-
cuted, and cannot be used in a court of law, either as the basis of an
action, or to defeat a claim otherwise just and reasonable"
V
In the case of the money paid upon a contract for the sale of land, the
action fails because no failure is shown of the consideration from which the
implied promise springs.
In the case at bar, the defence fails because the contract upon which
the defendant relieiS is not evidenced as the statute requires for its verifi-
1 13 Pick. 1. 2 7 Met. 57.
8 In Riley v. "Williams, 12.3 Mass. 506, it was held that a plaintiff who had per-
formed a contract not enforceable because of the Statute of Frauds, could not recover
on a quantum meruit, the defendant being ready and willing to pay in land and labor
according to the terms of the contract. — Ed.
* 20 Pick. 134.
254 HOSKINS V. MITCHESON. [CIIAP. II.
cation and enforcement. For it is the whole contract of which the defend-
ant seeks to avail himself. His defence is not that as to so much as is
executed, as to so much time as the plaintifl' has labored, he labored under
the contract, and the price stipulated is to govern. But he relies upon
the contract, not only so far as it is executed, but so far as it is still execu-
tory. He seeks first to establish the parol agreement as a valid subsisting
contract, and then to charge the plaintiff with a breach of it.
A construction of the statute which would sanction this use of the
contract, would lose sight of the obvious purposes of the statute. It
would adhere to the letter at the expense of the spirit. It would operate
unequally upon the parties. The weight of aiilhority is against it.
Exceptions overruled}
HOSKIXS V. MITCHESON.
In the Queen's Bench op Upper Canada, Michaelmas Term, 1857.
[Reported in 14 Upper Canada Queen's Bench Reports, 551. ]
Assumpsit on the common counts.
Pleas : non-assumpsit, and payment.
At the trial, at Perth, before Hagarty, J., the plaintiff failed as to part
of his demand at the trial, on the ground that the goods for which he
claimed were sold not on his sole account, but were goods of himself and
his partner Lackie, and were sold on account of the firm. There was an-
other item of charge, £19 5s. I J., for which it appeared the plaintiff
might have sued alone, being goods of his own got by the defendant ; but
as to that, the defence was this : The defendant had verbally agreed to sell
to the plaintiff three village lots for £100, payable in annual instalments
of £20 each, with interest, and the goods in question were taken by the
defendant as so much cash paid on account of the lots, and the plaintiff had
upon that footing been given a receipt for that part of the amount as paid
by defendant. The defendant afterwards desired to get back one of the
lots, and wished the plaintiff to give up the purchase as to that, but the
plaintiff declined ; and the defendant, who was called by the plaintiff as a
•witness upon the trial, swore that he was willing to stand to his bargain,
and that the three lots were still ready for the plaintiff.
The plaintiff's counsel objected, that the bargain for the sale of the
lots being void for want of a memorandum in waiting, the plaintiff was
at liberty to sue for the price of his goods as if sold to be paid for in
money.
The learned judge held otherwise, but reserved leave to move to enter a
1 Freeman v. Foss, 145 Mass. 361, accord. — Ed.
SECT. III.] GALVIN V. PRENTICE. 255
verdict for plaintiff for the £19 5s. Id. if this court should be of opiuiou
with the plaiutiff.
Freeland obtained a rule nisi accordingly.
Richards showed cause. .
EoBiNSON, C. J., delivered the judgment of the court.
The ruling of the learned judge was con-ect, we think. The goods were
to be paid for by crediting them on account of the plaintiff's purchase of
the lots, and therefore no implied assumpsit arose to pay for them in
money. It is quite true that the plaintiff seems to hold no valid contract
from the defendant to convey him these lots, — nothing that he can enforce;
but that is his own neglect. He has chosen to trust to the defendant's
word, and we have no reason to apprehend that the defendant has violated
it or that he will do so ; on the contrary, he fully admitted on the trial
his engagement to sell the lots at the price agreed upon, and avowed his
readiness to do so. His having expressed a wish to keep one of them,
making of course, a suitable abatement in the sum to be received for the
whole, was no proof that he repudiated the bargain. When he found the
plaiutiff unwilling to give up the lot, he pressed it no further.
If the plaintiff had called upon the defendant to execute an agreement,
and he had declined, or had tendered the balance of purchase-money and
applied in vain for a deed, he might no doubt have sued for the value of
his goods in money, but he has no right to assume that the defendant will
disregard the verbal agreement, because it is not binding in law, and with-
out putting him to the proof treat him as if he had done so.
Rule discharged.
WILLIAM H. GALVIN, Respondent, v. JAMES H. PRENTICE,
Appellant.
In the Court of Appeals of New York, March 21, 1871.
[Reported in 45 New York Reports, 162.]
Appeal from the judgment of the General Term of the Supreme Court
of the second district, affirming a judgment of the City Court of Brooklyn
for the plaintiff.
The action was by an amendment of the complaint, permitted by the
court, changed from one ou special contract to one on quantum meruit for
the balance due for plaintiff's service for two years.
It appeared that the plaintiff was verbally -liired by the defendant, in
May, 1866, to work in the latter's hat factory for the term of three years,
upon the following terms : He was to have five dollars a week until he had
learned to finish hats properly, and then was to have journeyman's wages.
256 GALVIN V. PRENTICE. [CIIAP.-II.
Two dollars a week were to be deducted from his wages for instruction,
damage to material, and use of bench, called " task " money, and fifty cents
a week deducted, called " security " money, to be returned to him at the
end of the three years, but to be retained, if he left before the end of the
three years or was discharged for good cause.
The plaintiff worked from May, 18G6, to April, 18G8, and then stopped.
The evidence was conflicting as to whether or not he was discharged. The
deduction of two dollars and fifty cents a week from his wages had been
made pretty regularly ; and it was for the aggregate of these deductions
the action was brought.
The judge charged the jury that, in his view, the discharge had nothing
to do with the case ; that " it was a void contract, a contract which could
not be enfox'ced, which either party had a right to rescind at any time, and
therefore it is a mere matter of how much the services are worth. I would
state, that w-hatever amount the jury find they are worth the plaintiff is
entitled to. The contract, although void, may be considered prima fade
evidence of the value of the services."
The defendant excepted to that portion of the charge that the contract
might be considered prima facie evidence of the value of the services.
William P. Prentice for the appellant.
John F. Baker for the respondent.
Rapallo, J. That part of the charge of the judge, in which he in-
structed the jury, that the contract, although void, might be considered
prima facie evidence of the value of the services, was, under the cir-
cumstances of this case, en'oneous ; and the exception thereto was well
taken.
The contract price of the services was fixed with reference to a continu-
ous service of three years. It appeared, upon the plaintiff's own showing,
that the contract was that he should work for three years, and be paid the
portion of his wages now in question, only in case he served three years,
or was discharged for want of work.
The plaintiff claimed that he had been discharged, but the evidence on
that point was conflicting, and the judge charged the jury that the dis-
charge had nothing to do with the case. It cannot be assumed, therefore,
that the fact of discharge was established.
It appeared that the plaintiff was to learn the business in wliich he was
employed. It cannot be supposed that his work was of the same value
during the prior part of the term of his employment, as it would be during
the latter part, when his proficiency must naturally have increased. The
price agreed upon for the three years was not, therefore, competent evi-
dence of the value of the services dixring the first and second years, and
the contract, being void by the statute, could not be so far enforced as to
determine the rate of compensation.
The exception to the ruling on that point is fatal to the judgment. But
SECT. III.] GALVIN V. PRENTICE. 257
it must not be inferred that we agree to the proposition, that if there had
been a coi-rect ruhng on the question of damages, the plaintiff would have
been entitled to recover without proving that he was discharged, or that
the defendant was in default.
Where payments are made, or services rendei*ed upon a contract void by
the statute of frauds, and the party receiving the services or payments re-
fuses to go on and complete the performance of the contract, the other
party may recover back the amount of such payments or the value of the
services, in an action upon an implied assumpsit.
But to entitle him to maintain such action he must show that the de-
fendant is in default. King v. Brown. ^ The rule is very clearly stated in
Lockwood V. Barnes,^ as follows : " A party who refuses to go on with an
agreement void by the statute of frauds, after having derived a benefit
from a part performance, must pay for what he has received."
So in Dowdle v. Camp,^ Abbott v. Di-aper,* and Collier v. Coates,^ it was
held that money paid on a parol contract for the pui'chase of lands, which
[is void by the statute of frauds, cannot be recovered back unless the vendor
refuses to perform ; and to the same effect are numerous decisions of the
courts of our sister States, referred to in Collier v. Coates.
I The default of the defendant or his refusal to go on with the contract is
recognized as an essential condition of the right to recover for services ren-
dered or money paid, under any description of contract void by the statute
pf frauds. Erben v. Lorillard;^ Burlingame v. Burlingame ;'' Kidder v.
Hunt ; * Thompson v. Gould. ^
When the contract is entire, and one party is willing to complete the
performance, and is not in default, no promise can be implied on his part
to compensate the other party for a part performance.
The express promise appearing upon the plaintiff's own showing, although
[t cannot be enforced by reason of the statute, excludes any implied prom-
ise. Whitney v. Sullivan ; -^^ Jennings v. Camp." Expressum facit cessare
lacitum. Merrill v. Frame ; ^^ Allen v. Ford.-'^
The effect of the statute is to prevent either party from enforcing
[)erformance of the verbal conti'act against the other, but not to make a
lifferent contract between them.
An implied promise to pay for part performance can arise only when the
i)arty sought to be charged has had the benefit of the part performance, and
pas himself refused to proceed, or otherwise prevented or waived full per-
brmance : Munro v. Butt ; " Smith v. Brady ;i5 13 Johns. 94 ; 8 Cow. G3 ;
>r where, after the making of the contract,, full performance has been
1 2 Hill, 487. 2 3 Hill, 128. s 12 Johns. 451.
« 4 Denio, 51, 53. 5 17 Barb. 471. ^ 19 n. Y. 302 and 304.
'' 7 Cow. 92. 8 1 Pick. 328. » 20 Pick. 134, 142.
^0 7 Mass. 109. n 13 Johns. 96. 12 4 Taunt. 329.
" 19 Pick. 217. " 8 Ell. & Bl. 738. 15 17 N. Y. 173.
VOL. II. — 17
258 GALVIN V. PRENTICE. [CHAP. II.
rendered impossible, by death or otherwise, without fault of the contract
ing party. Wolfe v. Howes. ^
The judgment should be reversed, and a new trial ordered, with costs to
abide the event.
Peckham and Folger, JJ., concurred; Grover, J., concurred in the
result on the ground of error in the charge ; C. J. did not vote ; Allen, J.,
dissented.
1 20 N. Y. 197.
CHAPTER III.
BENEFITS CONFERRED WITHOUT REQUEST.
S E C T I O X I.
IXTEXTIOXALLY.
jSTOKES AND Another, Overseers op St. Vedast's, otherwise FOSTER,
V. LEWIS AND Another, Overseers of St. Michael Le Quern.
In the King's Bench, Michaelmas Term, 1785.
[Reported in 1 Term Reports, 20.]
I This was an action for money paid, laid out, and expended, by the plain-
tiffs to the use of the defendants.
The question arose upon the payment of a sexton's salary. At the trial,
which came on before Lord Mansfield at the last sittings in London, it
appeared that by the act 22 and 23 Car, 2. c. 11, which was an additional
act for rebuilding the city of London after the great fire, and uniting par-
ishes, etc., amongst others the parishes of St. Vedast's and St. Michael le
Quern were united ; and that since that time one set of officers had served
fur the two parishes, the election of whom had always been made at a joint
vestry. That only nine vacancies in the office of sexton had happened
Bince, all of which had been filled up agreeably to this custom. That in
the year 1759, the sexton's salary was fixed at 201. per annum, which was
agreed to be paid equally by both parishes. That the overseers of St. Ve-
dast's had paid the sexton who was last chosen the whole sum ; to recover
a moiety of which this action was brought.
The defence set up was, that the last election of a sexton was not a joint
one; and that the parish of St. Michael claimed a right of choosing a sep-
arate sexton for themselves, of which they had given notice to the other
tparish.
I Lord Mansfield, at the trial, being of opinion that this action did not
lie, nonsuited the plaintiffs.
Ershine, Mingay, and Law, showed cause against a motion which Sir
Thomas Davenport had made for a new trial.
I One of the first principles of law is, that an assumpsit cannot be raised
■by paying the debt of another against his will. The present plaintiffs have
here paid this money in their own wrong, after notice from the other parish
260 JENKINS V. TUCKER. [CHAP. III.
tliat they meant to dispute the right, and to elect a sexton of their own.
If any party was aggrieved here it was the sexton, and he might have
brought his action against the parish who refused to pay their quota.
Sir Thomas Davenjwrt, Bearcroft, and Chamhre, in support of the rule,
said that they had offered to give evidence that a joint vestry did meet on
the 17th February, 1784, when the sexton was chosen, after the notice ou
the 11th that the other parish would not meet. Therefore, although there
was notice that they would not meet, yet if they did actually meet, the
court would not consider now whether the meeting was perfectly formal
and regular; that was a proper circumstance for the jury to decide. If
there is a joint obligation to pay a debt, one party may pay the whole, and
bring an action for the moiety, even with the dissent of the other party.
Whether this was a joint obligation should also have been left to the jury.
Lord Mansfield, C. J. All the argument is beside the question. The
merits of this election are not material here, and the validity of the meet-
ing on the 17th is not to the purpose. The facts that gave rise to the
question are not disputed : the dispute arises concerning the election of a
sexton, and the way of trying it is by refusing to pay the sexton elected ;
the whole is notoriously in litigation. Under these circumstances, there-
fore, one parish paid the quota of the other in spite of their teeth ; then
can it be said, that this action for money paid, laid out, and expended, will
lie 1 Certainly not. This action must be grounded either on an express
or implied consent : here is neither. Another strong objection to this
action is, that it is trying the right of the sexton without his being a
party to it.
WiLLES, and Ashhurst, Justices, concurred.
BuLLER, J. If this were held to be a joint obligation, it would be saying
that the sexton might bring his action against one of the parishes for the
whole sum : which is not the case.
Rule discharged.
JENKINS V. TUCKER.
In the Common Pleas, November 28, 1788.
{Reported in 1 Henry Blackstone, 90.]
The defendant married the plaintiff's daughter ; and some time after the
marriage went to Jamaica, leaving her and an infant child in England.
During his absence she died ; and this action was brought by her father
against the husband, to recover the money which he had expended after
her death in discharging debts which she had contracted while her husband
was in Jamaica (by living with her child in a manner suitable to her hus-
band's fortune), and in defraying the expenses of her funeral, which were
SECT. I.] JENKINS V. TUCKER. 261
also proportioned to the liusband's fortune and station. The declaration
was in tlic usual form, for necessaries and funeral expenses, with the com-
mon money counts. The defendant paid lOOZ. into court, and pleaded noii
assumpsit as to the residue.
At the trial, the evidence on the part of the plaintiff proved that the de-
fendant was possessed of a large estate in Jamaica ; that he lived with his
wife till he went thither ; that he left her in bad health, and much in want
of money ; that after her death the plaintiff paid the debts which she had
incurred in the absence of the defendant, and her funeral expenses.
To this evidence the counsel for the defendant demurred.
In support of the demurrer, Eimnington, Serjt., now contended, that a
sufficient consideration was not disclosed by the evidence to raise an as-
sumpsit. A consideration, on which the law will imply an undertaking,
must be either beneficial to ttie defendant, or detrimental to the plaintiff ; ^
.but in the present case there was neither one nor the other : the plaintiff
paid the money in question without either the knowledge or consent of the
defendant, and therefore without his special instance and request. Request
is a matter of proof on record.^ It is necessary to be alleged. Hunt v.
Bate.' Payment of money for another without his consent and against his
will is no ground for an assumpsit.* If such an action were allowed, it
■would occasion a manifest injury to the defendant, as he would be pre-
cluded from contesting the legality of the original demand, and from the
advantage of a set-off.
Generally speaking, assumpsit will not lie, except where debt will. Here
debt could not be brought, there being neither privity nor a contract between
the parties; Hardr. 485, where the Chief Baron said, that if there be a mere
collateral engagement, debt would not lie. This was a collateral obligation,
that could not be supported without a special request being proved. If it
were otherwise, the greatest inconveniencies would arise. In the present
instance the husband would be liable for the debts of the wife beyond what
were for necessaries. Though in some particular cases the law will raise
an assumpsit where a man is under an obligation of conscience or equity to
pay the sum demanded, yet in this case the defendant was neither bound
in conscience nor equity to repay money laid out on his account without
either his consent, knowledge, or request.
Rooke, Serjt., contra. The court will not presume that the money in
question was paid without the consent of the defendant because it does not
appear to have been paid expressly at his request. It is possible that a
previous consent might have been given. This was a matter for the discre-
tion of the jury, who would have determined by a verdict whether there
was a sufficient consideration. The rule, that such a consideration as will
raise an assumpsit must be either beneficial to the defendant or detrimental
1 1 Roll. Abr. 24. 2 3 Lev. 366. 3 Dyer, 272.
* 1 Roll. Abr. 11; Hob. 105; Term Rep. B. R. 20.
262 JKNKINS V. TUCKER. [CHAP. III.
to the plaintiflf, has been often holden to be too narrow. Hawkes v. Saun-
ders.^ But allowing this rule to be in full force, this case comes within the
meaning of it, for it was a benefit to the defendant to have his father-in-law
his sole creditor, in the room of many others ; and it was also a detriment
to the plaintiff to have advanced so much money.
This was not the interference of a stranger, but of a father, whom com-
mon decency required to relieve the distresses of his daughter, and give
direction for her funeral, in the absence of her husband. There appears,
then, a sufhcient consideration on the record to maintain this action. But
besides this, the defendant, by paying money into court, acknowledges that
the action was well brought; he pays it in full discharge, and therefore
confesses a ground of action on every count of the declaration. Cox v.
Tarry. ^
The cause of action therefore being admitted, a demurrer to evidence
could not be supported, and the jury ought not to have been prevented
from ascertaining the quantum of damages.
liunnington in reply. This is an abstract question of law, whether or not
there appears a sufficient consideration on the record 1 As to presuming
that the defendant gave a previous consent to the plaintiff, there is no rea-
son to -warrant such a presumption. Admitting that decency required the
plaintiff to direct the funeral, yet the charges made were greater than were
necessary. But if the plaintiff has a right in law to recover, the sum can-
not be apportioned, and he must recover the whole. Though the case of
Hawkes v. Saunders be good law, it does not affect the present, as in that
there was both consent and an equitable consideration, which are wanting in
this. As to payment of money into court, it does not admit a right of ac-
tion to the extent contended for, but only for so much as is really paid in.
The practice of paying money into court arose from the court's permit-
ting, on eqtiitable grounds, the defendant, after the action was commenced,
to have the advantage of a plea of tender when he was too late in fact to
plead it. If the plaintiff takes the money out of court, he is entitled so
far to costs ; but if he proceeds, it is at his peril, and beyond this he is
subject to strict legal proof. The case of Cox v. Parry is in favor of the
defendant : the words of Mr. Justice Ashhurst in delivering the opinion of
the court in that case are, " As the defendant has paid money into court, he
has thereby admitted that the plaintiffs are entitled to maintain their action
to the amount of that sum, but he lias admitted nothing more."
Lord LoL'GHiJOROUGii. This demui-rer to evidence strikes me as being
extremely absurd, since by payment of money into court, the defendant
admits a cause of action (so that wlicrc money is paid into court, there can
1)0 no such thing as a nonsuit) ; and also, because it was for the jury to de-
termine the fpiavtmn of damages. The court cannot anticipate the prov-
ince of a jury, and ascertain damages on a writ of in(inirv. It was not my
1 (■"(.«•!). 290. - 1 Term Wvy- B. K. 40-1.
SECT. I.] JENKINS V. TUCKER. 263
intention that any of the debts contracted by the defendant's wife, which
the plaintiff discharged after her death, should have gone to the jury : but
as the counsel for the defendant thought proper to demur to the evidence,
the judgment on the demurrer must be general. They onght at the trial
to have contended for a verdict ; they seem to me to have taken the wrong
method for their client.
I think there was a sufficient consideration to support this action for tlio
funeral expenses, thougli there was neither request nor assent on the part
of the defendant, for the plaintiff acted in discharge of a duty which the
defendant was under a strict legal necessity of himself performing, and
which common decency required at his hands ; the money, therefore, which
the plaintiff paid on this account was paid to the use of the defendant. A
father also seems to be the proper person to interfere in giving directions
for his daughter's funeral, in the absence of her husband. There are many
cases of this sort, where a pei;pon having paid money which another was un-
der a legal obligation to pay, though without his knowledge or request, may
maintain an action to recover back the money so paid ; such as in the in-
stance of goods being distrained by the commissioners of the land-tax, if a
neighbor should redeem the goods, and pay the tax for the owner, he might
maintain an action for the money against the owner.
Gould, J. It appears from this demurrer that the defendant was pos-
sessed of a plantation in Jamaica, from the time he left his wife till her
death, which annually produced above 120 hogsheads of sugar; the value
of which, at a moderate estimation, amounted to near 3000/. a year. He
was therefore bound to support her in a manner suitable to his degree ; and
the expenses were such as were suitable to his degree and situation in life.
The law takes notice of things suitable to the degree of the husband, in the
paraphernalia of the wife, and in other respects. In the present case, the
demurrer admits that the money was expended on account of the wife,
and being for things suitable to the degree of the husband, the law raises a
consideration, and implies a promise to pay it.
Heath, J. The defendant was clearly liable to pay the expenses of his
wife's funeral.
Wilson, J. If the plaintiff in this case had declared as having himself
buried the deceased, the husband clearly would have been liable ; and as
the case stands at present, the plaintiff having defrayed the expenses of the
funeral, the husband is in justice equally liable to repay those expenses,
and in him the law will imply an assumpsit for that purpose.^
Judgment for the plaintiff.
1 Ambrose v. KerrisoD, 10 C. B. 776; Bradshaw v. Beard, 12 C. B. N. s. 344,
accord. — Ed.
264 ATKINS V. BANWELL. [CHAP. III.
^r^-*<-*»-^
ATKINS AND Others v. BANWELL and Another.
In the KingV Bench, July 2, 18D2
An action of indebitatus assumpsit was brought by the plaintiffs, as the
parish officers of Toddingtou in the county of Bedford, against the defend-
ants as the parish officers of Milton Bryant in the said county, to recover
14/. 12s. for money paid, laid out, and expended by the plaintiffs for meat,
drink, board, lodging, medicines, medical assistance, and other necessaries
found and provided by them for one John Mitchell, his wife and family ; to
which the general issue was pleaded. And at the trial before Grose, J.,
at the last Bedford assizes, a verdict was found for the plaintiffs, subject to
the opinion of the court on the following case.
The plaintiffs are the parish officers of Toddington, and the defendants
are the parish officers of Milton Bryant. John Mitchell was a pauper
legally settled at the time of his illness and death, hereafter mentioned, in
Milton Bryant, but he resided with his wife and family at Toddington, and
was there suddenly attacked with dangerous illness, which prevented his
being removed from the place of his residence to that of his settlement
without endangering his life. The plaintiffs gave notice to the defendants
of the illness of their paujier within two or three days after the pauper was
so taken ill. The pauper's illness continuing, he afterwards, and about
three weeks from such notice, died of such illness in the parish of Todding-
ton ; and the plaintiffs, as parish officers of that parish, from the time of
such notice up to the pauper's death, laid out 14/. 12s. as well for neces-
saries for the pauper and his family, as for medicines and medical assistance
for the pauper, and also on the funeral of the pauper after his death. The
present action was brought to recover that sum. The jury found that there
was no express promise of the defendants to pay it to the plaintiffs. The
question for the opinion of the court was, AYhether such action be main-
tainable in law ] If the court should be of that opinion, then the verdict
for the plaintiffs was to stand ; if not, a nonsuit to be entered.
Best fur the plaintiffs, said that there was a moral obligation at least in
the defendants to repay the money expended for one of their own parish-
ioners, whom by law they were compellable to maintain within their own
parish ; and therefore this case fell within the princi]ile of Watson v.
Turner,' where an apothecary recovered against the parish officers for the
cure of a pauper of the parish who was taken ill in another parish ; there,
however, there was a special promise to pay the plaintiffs bill after it was
contracted.
» Scacc. Triri. 7 Geo. 3 ; Bull. N. V. 120, 117, 281.
SECT. I.] ROGERS V. PRICE. 265
Lord Ellenborough, C. J. That last circumstance makes all the differ-
ence. A moral obligation is a good consideration for a^' nypmsa prnnnisg^;
but it Tiaa uevcrn5cen_carried further, so as to raise an implied promise
in law. There is no precedent, principle, or color for maintaining thls^^
action.
Le Blanc, J. There was a moral as well as legal obligation to maintain
the pauper in his illness in the parish where he Mvas at the time.
^'J^ Ctcriam. Let a nonsuit he entered.
ROGERS V. PRICE, Executor.
In the Exchequer, Hilary Term, 1829.
[Reported in 3 Yuunge Sf Jervis, 28.]
Assumpsit by the plaintiff against the defendant, executor of Davies, for
work and labor as an undertaker and^aterials furuislied for the funeral of
Davies. Plea, non assumpsit.
At the trial, which took place before Gaselee, J., at the Hereford sum-
mer assizes, 1828, it appeared that the testator died in Wales, at the house
of his brother, who, thereupon, sent for the plaintiff, an undertaker residing
atad|staiice. The plaintiff afterwards furnished tlie fuheralj^^jid^tTie
brother of the deceased attended it as chief mourner. It was admitted
that the funeral was suitable to the degree of the deceased. Upon the^
facts, there bein^no evidence of any contract made by the defendant, or
that he knew of the^funeral until after it had^ taken place, the learned
judge was of opinion that the plaintiff was not entitled to recover, and
directed a nonsuit^ with leave to enter a verdict for the plaintiff for 30/., if
this court should think him entitled to recover.
In Michaelmas term last, Russell, Serjeant, in pursuance of this leave,
obtained a rule calling upon the defendant to show cause why the nonsuit
should not be set aside, and a verdict entered for the plaintiff for SOL ; and
in support of the application cited the case of Tugwell v. Heyman.-^
Maule showed cause.
Bussell, Serjeant, and Evans, John, in support of the rule.
Garrow, B. It would, in my opinion, have been more satisfactory, if
this case had been submitted to the consideration of a jury, to inquire upon
whose credit the funeral was provided ; but, that course not having been
pursued, we must dispose of this rule in its present form. I am of opinion
that the plaintiff is entitled to recover, and that therefore this rule must
be made absolute. The simple question is, notwithstanding many in-
1 3 Campb. 298.
266 ROGERS V. PRICE. [CIIAP. III.
genious views of the case have been presented, who is answerable for the
expenses of the funeral of this gentleman. In my o])inion, the executor is
liable. Suppose a person to be killed by accident at a distance from his
Home ; what, in such a case, ought to be done % The common principles
of decency and humanity, the common impulses of our nature, would direct
every one, as a preliminary step, to provide a decent funeral, at the expense
of the estate ; and to do that which is immediately necessary upon the
subject, in order to avoid what, if not provided against, may become an
inconvenience to the public. Is it necessary in that or any other case to
wait imtil it can be ascertained whether the deceased has left a will, or
appointed an executor ; or, even if the executor be known, can it, where
the distance is great, be necessary to have communication with that ex-
ecutor before any step is taken in the performance of those last offices
which require immediate attention 1 It is admitted here that the funeral
was suitable to the degree of the deceased, and upon this record it must be
taken that the defendant is executor with assets sufficient to defray this
demand ; I therefore think that, if the case had gone to the jury, they
would have found for the plaintiff, and that therefore this rule should be
made absolute.
HuLLOCK, B. I concur in thinking that, under the circumstances de-
tailed in this case, the defendant is liable, and that therefore this rule
should be made absolute. The argument on the part of the defendant has
taken a very wide and extended range, and embraced a variety of topics,
many of which are of considerable difficulty, but upon which it is un-
necessary in this case to express any opinion. The question is. whether
_ . an executor (which, upon this record, I assume the defendant to be), with
W vLC S \ \ o r\ assets, is answerable in point of law for the funeral expenses of his testator,
// , in the absence of evidence to charge any other individual. "We are not
required in this case to decide, whether an undertaker has a right to bury
anybody that is kept uninterred for any length of time ; or whether one
who voluntarily performs these offices is entitled to recover ; or whether,
where express orders are given, the party giving those orders is answerable
for them ; because in my opinion those questions do not here arise. I do
not think that in this case there is any evidence to show that the plaintiff
acted upon the credit of the brother of the deceased. He might have said, I
will have somebody to whom I may look for payment before I will proceed ;
but of that there is no evidence, and we therefore must infer that no such
luiderstanding took place. In every case the undertaker must be sent for,
but that is not giving an order so as to create a liabilit\' ; hemust in every
case be apprised of the death, but that will not render the party who makes
the commiuiication answerable, any more than in the case of casual poor,
"v^ M (9
to wliWi ulbiaioii has buLTrTnadc. It is then said, that, if a contract be
ifnplied, it must in this case be to defray the expenses of a funeral suitable
to the degree of the testator. I do not think that it is necessary to enter
SECT. I.] ROGEKS V. PKICE. 267
upon that point. An undertaker is not to indulge in speculations on the
amount of the estate of the deceased ; but we must, upon the admission at
the trial, assume this to be a funeral such as in ordinary cases would bo
required. There is another objection made, viz., that this defendant is sued
as executor, and that therefore it was incumbent upon the plaintiff to prove
him to be an executor. I agree that there would be a difficulty in pleading
plene adviinistravit, but still, inasmuch as the liability of the defendant
arises in this case out of two circumstances, his character, and his ability
to pay, I am not sure that he might not have shown the want of assets
under the general issue ; but at all events, it would be more prudent to
plead that fact. This is a difficulty which does not very often occur. This
obligation does not arise in respect of an act during the lifetime of the
testator, but of an implied ol)ligation arising out of the situation of the
executor with reference to his character and the estate of his testator. It
is also said, that the executor is not bound to bury the dead within a cer-
tain time. That question does not arise in this case. If the executor had
kept the body uuburied, and the undertaker had come and said, I insist
on burying it, he could not have recovered. But there is no evidence here
that the person by whom this body was interred knew whether there was
or was not an executor. It is the duty of the executor to dispose of the
testator in the usual manner, viz. : by burying him. It is not that sort of
duty which can be enforced by mandarmts or other proceedings at law ; but
it is a duty which decency and the interest of society render incumbent
upon the executor^ The case of Tugwell v. Heyman -^ is precisely similar
to the present, and I for one should have great difficulty in departing from
an authority with which the feelings of all mankind must so fully concur.
The instance alluded to, of the liability of parish officers in respect of casual
poor, appears to me to be a strong authority in support of the doctrine
in the former case ; because in like manner an implied contract may in
this case be inferred, on the part of the executor, from the ol)ligation
imposed upon him with reference to his character and the estate of his
testator.
Vaughan, B. I agree in the judgment which has been delivered by my
learned brothers, and shall make but few observations upon the case.
Looking to the record, I must assume that the defendant is executor, and
has assets sufficient to pay this debt.^ I should certainly have been better
satisfied, if, at the trial, it had been left to the jury to say whether the
plaintiff performed the contract upon the credit of any other person ;
because, if that was the case, I am of opinion that the executor would not
be liable. That course was not, however, pursued, and upon this report we
are at liberty to infer that it was not done upon the credit of any third
person. The discussion then resolves itself into a luere question, whether
an executor is liable to pay the funeral expenses of the testator, where he
1 3 Campb. 298.
i-
268 BOULTOX V. JONES. [cHAP. III.
has assets and uo unuecessary expense is incurred. I do not consider this
as a dutv_of imperfect, but one of imperative oblityation. It is not pre-
tended that there was in this case any opportunity to consult the executor,
who lived at a distance ; and what under such circumstances could be done,
if the defendant is not liable ? The dictum of Lord Chief Justice Holt is
expressly at variance with the opinion of Lord Ellenborough, and, were
it necessaiy, I should feel no difficulty in assenting to the latter authority ;
but it is not necessary to draw any comparison between the two cases,
because, from the note of the former, it does' not appear under what cir-
cumstances that opinion was delivered. The latter is a case precisely
applicable to the present, acquiesced in by the counsel, and confirmed, if
confirmation were required, by the opinion of the Chief Justice of the Court
of Common Pleas. I consider the burial of the dead to be a clear obliga-
tion upon the executor, and think that he is liable for the expenses incurred,
if in his absence that duty be performed for him by another.
Eule absolute.
BOULTON V. JONES.
In the Exchequer, November 25, 1857.
[Reported in 27 Law Journal Reports, 117.1]
Action in the Passage Court of Liverpool, for goods sold.
Plea, never indebted.
The evidence was, that on the 13th of January the defendant sent to the
shop of one Brocklehurst, who had that day, unknown to the defendant,
sold his stock-in-trade and assigned his business to the plaintifi", an order
in writing, addressed to Brocklehurst, for certain goods. The goods were
sent by the plaintiff, and at the trial the written order appeared with
Brocklehurst's name struck out, but there was no evidence wlien that was
done. There was contradictory evidence on a collateral point, but none as
tojvhether the defendant had notice nf the chnngfi of hnRin'e^~before the
plaintiff sent in an invoice, which was not until after the goods were con-
sumed. The defendant had a set-off against Brocklehurst. The objection
was taken that the contract was with him and not the plaintiff, and the
learned Assessor reserved the ])oint.
The jury found for the plaintiff, and Mellish had obtained a rule to enter
it for the defendant, or to enter a nonsuit.
AVOuhrey showed cause. The verdict concludes tlie question. The
point was not reserved that on the whole evidence the contract was with
Brocklehurst.
1 This case is also reported, but not so fully, in 2 H. & N. 564. — En.
SECT. I.] BOULTON V. JONES. 269
[Pollock, C. B. If that were so, nothing could have been reserved.]
The goods were clearly the plaintiffs, and the writing was not conclusive
to show that the contract was not with him. Humble v. Hunter ^ and
Rayner v. Grote.^ The defendant might have pleaded his set-off, goods
having been sold by one in the name of another. If the plaintifi" cannot
sue the defendant, Brocklehurst cannot, and the price cannot be recovered.
The defendant would be liable if he had notice, and the jury must be taken
to have found that he had.
Mellish, for the defendant, in support of the rule. The contract was
with Brocklehurst, and that was the question reserved.
[The court referred to the learned Assessor, who was in court, and he
certified that this was so.]
The case is not one of principal and agent, and that disposes of the case
cited. Moreover, as to Humble v. Hunter, it has not been approved of, and
in Rayner v. Grote the- defendant had notice.
[Channell, B. Here he might have been liable. Could he have re-
turned the goods when he received the invoice in the plaintifi"'s name ?]
Supposing the goods were then in esse, but they were not so. There was,
therefore, no evidence of an implied contract with the plaintiff, and the
express contract was with Brocklehurst. Then, there could not have been
a set-oflF. Isberg v. Bowden.^ And, on the other hand, the plaintiff could
sue in the name of Brocklehurst, the contract having been made in his
name, though of course subject to the set-off. It cannot be permitted to
the plaintiff to sue the defendant on a contract he never made, so as to de-
prive him of a set-off. The question is, not whose are the goods, but with
whom was the contract 1
Pollock, C. B. The point raised was this, whether the order in writing
did not import, on the part of the buyer, the defendant, an intention to C^l
"HeaTexclusively with Brocklehurst ; the person whoJiad_gucceede^ httgr^ X ^/^
The plaintiff, having executed the order witbout'any notice to the defenrX ^^ ''^
dant of the change^ until he received the invoice, subsequently to his con- ^o /
sumption of the goods. The decision of the jury did not dispose of that ej
pomt, and it was" the point reserved. Now the rule of law is clear, that if
you propose to make a contract with A., then B. cannot substitute himself
for A. without your consent and to your disadvantage, securing to himself
all the benefit of the contract. The case being, that if B, sued, the defen-
dant would have the benefit of a set-off, of which he is deprivedby A.'s
suing. If B. sued, the defendant could plead his set-off; as B. does not
sue, but another party with whom the defendant did not contract, all that
he can do is to deny that he ever was indebted to the plaintiff.
Martin, B. That being the point, there can be no doubt upon the
1 12 Q. B. 310; s. c. 17 L. J. R. n. s. Q. B. 350.
2 15 Mee. & W. 359; s. c. 16 L. J. R. n. s. Ex. 79.
3 8 Ex. 852; s. c. 22 L. J. R. n. s. Ex. 322.
270 BODLTON V. JONES. [CIIAP. III.
matter. This was not a case of principal and agent at all, because the
plaiutitf was not Brocklehurst's agent, but his successor in the business,
and made the contract on his own account, not for the plaintiff. Where
the facts prove that the defendant never meant to contract with A. alone,
B. can never force a contract upon him ; he has dealt with A., and a con-
tract with no one else can be set up against him.
Bramwell, B. It is an admitted fact, that the defendant supposed he
was dealing with Brocklehurst ; and the plaintiff misled him by executing
the order unknown to him. It is clear also, that if the plaintiff were at
liberty to sue, it would be a prejudice to the defendant, because it would
deprive him of a set-off, which he would have had if the action had been
brought by the party with whom he supposed he was dealing. And upon
that my judgment proceeds. I do not lay it down that because a contract
was made in one person's name another person cannot sue upon it, except
in cases of agency. But when_auy nnp mnkps n. p.nntrnfi, in which the per-^
sonality, so to speak, of the particular jjarty contracted with is important,
for any reason, whpthftrjinj^misR it is t.n writp. a book or paint a picture
or do anywork_of personal skill, or whether because there is a set-off d_u_e
from that party_no one else is at liberty to step in and maintain that he is
the partyjxmtmcted with, — thnt, he, hns written the_book or painted the
picture, or supplied the goodi^ ; ^^^d that he is entitled to sue, althoutrh. had
the partyreally contracted with sued, the defendant would have had the
benefit of his personal skill, or of a set-off due from him. As to the diffi-
culty suggesTedTuiat if the plaintiff cannot sue for the price of the goods,
no one else can, I do not feel pressed by it any more than I did in such a
case as I may suppose, of work being done to my house, for instance, by a
party difierent fi-om the one with whom I had contracted to do it. The
defendant has, it is true, had the goods ; but it is also true that he has con-
sumed them and cannot return them. And that is no reason why he should
1 1 pay money to the_plaintjff_jvhich he never contracted to pay, but upon
some contract which he never made, and the substitution of which tor that
which he did make would be to his prcjudice,_ai2d involve a pecuniary loss
by depriving himof a set:gff.
Channell, B. The plaintiff is clearly not in a situation to sustain this
action, for there was no contract between himself and the defendant. The
case is not one of principal and agent ; it was a contract made with B., who
had transactions with the defendant and owed him money, and upon which
A. seeks to sue. Without saying that the plaintiff might not have had a
right of action on an implied contract, if the goods had been in existence,'
here the defendant had no notice of the plaintiff's claim, until the invoice
was sent to him, which was not until after he had consumed the goods,
and when he could not, of course, have returned them. Without saying
1 It was hold in Mudgu v. Oliver, 1 Allen, 74, that these facts would support a count
for goods sold and delivered. — Ed.
SECT. I.] LEIGH V. DICKESON. 271
what might have been the effect of the receipt of the invoice before the con-
sumption of tlie goods, it is sutlicient to say tliat in this case the plaintiff
clearly is not entitled to sue and deprive the defendant of his set-off.
Rule absolute for a nonsuit.
LEIGH AND Another v. DICKESON.
In the Court of Appeal, November 22, 1884.
[Reported in Law Reports, 15 Queen's Bench Division, GO.]
Appeal by the defendant against the judgment of Pollock, B., in favor
of the plaintiffs.
The facts of the case are fully set forth in the report of the proceedings
before Pollock, B.,^ and here it is necessary only to make the following
short statement of them.
The plaintiffs were trustees of a lady named Eyles, and sought to recover
from the defendant the sum of 24/. 9s. 6d., which they alleged to be due to
them from the defendant for the use and occupation by him of three-fourths
of premises in Market Lane, Dover, for 264 days at the rate of i5L per
annum. In 1860 Mrs. Eyles was entitled to an undivided three-fourths
of the house as tenant in common with another ; and on the fourth of
January in that year she, by lease, let to one Prebble for twenty-one years
her interest at the rate of 33/. 15s. per annum. In 1865 the lease was
assigned by Prebble to the defendant, who entered and paid rent. In 1871
the defendant purchased the one-fourth interest of the other tenant in com-
mon. On the 6tli of January, 1881, the lease expired, but the defendant
continued in possession. A correspondence then took place between the
plaintiffs and the defendant and their solicitors with a view to continue the
tenancy ; but the plaintiffs asking for an advanced rent which the defendant
"was unwilling to pay, no further agreement was arrived at. Upon the facts
Pollock, B., came to the conclusion that the occupation by the defendant^
which occurred after the expiratianof the lease in question on the 6th of
"January, 1881, must be referred, not to his right as tenant in common, but '
lo his continuing in occupation^ tenant at sutterance. He tTTerefore gave \ ^
Judgment for the plaintiffs for 24/. 9s. 6d., the amount claimed for use and j t"
occupation?^
The defendant by way of set-off and counter-claim ^ sought to recover p / -// J. '
from the plaintiffs 80/., which, he alleged, he had laid out and expended in "^ 7/ / '^/^
substantial and other proper repairs and improvements upon the premises '■^ i— ^ [^ a~. ^
since the expiration of the lease. Pollock, B., was of opinion that the
1 12 Q. B. D. 194. 2 12 Q. B. D. 194, at p. 196.
^ Only so much'of the case is given as relates to this question. — Ed.
272 LEIGH V. DICKESON. [CHAP. IIL
set-oflF and couuter-claim could not be sustained in law, and gave judgment
upon it for the plaintiifs.^
Finlay, Q. C. and C. A. Russell, for the defendant.
Edward Pollock for the plaintiffs.
Cur. adv. vult.
The following judgments were delivered : —
Bkett, M. R. The cestui que trust of the plaintiffs and the defendant
were tenants in common of a house ; the defendant has done certain repairs
which may be taken to have been reasonable and proper ; he has paid for,
or at least has become liable to pay for those repairs. An action having
been brought against him, he seeks by a couuter-claim to recover that
money which he has paid or is liable to pay. The cestui que trust of the
plaintiffs has derived benefit from the expenditure incurred by the defen-
dant, and the defendant seeks to reimburse himself for the cost of the re-
pairs in proportion to the benefit which the tenant in common with him
has received. Does this counter-claim fall within any legal and recognized
principle 1 There was no express_rec[uest by the tenant in common with^^
him that he should expeod^the money. What are the legal conditions
which enable a man who has expended money to recover it from another]
If money has been expended at the express request of anotheiVJin_action
will lie at the suit of the person~expending it against the person pursuant
to whose request it has been'expende^7JTf~aperson is employed as agent
in a business which requires an expenditure in order that it may be carried
on, it is equally clear that the principal must indemnify his agent for the
expenditure which he incurs. But the law has gone further ; it has been
laid down that if one person has requested another to do an act which will
cost him money, that is, which will expose him to a legal liability to pay
money, the law will imply a promise on the part of the person making the
request to indemnify the other for the expenditure to which he has been
subjected. But the law has gone even further, and it has been held that
if a principal employs an agent in a business, in which by the usage thereof
known to both parties at the time of employment, the agent, although he
is under no liability by law, is bound, on pain of suffering an injury or loss
in his business, to pay money, the principal is bound to indemnify the
agent for the money which the latter may expend in the transaction of the
business on his principal's behalf^ That, no doubt, is an extreme case, but
it has been so decided. But it has been always clear that a purely vol-
untary payment cannot be recovered back. Voluntary payments may bo
divided into two classes. Sometimes money has been expended for the
benefit of another person under such circumstances that an option is allowed
to him to adopt or decline the benefit : in this case, if he exercises his
1 12 Q. B. D. 194, at p. 200.
2 It is i)if.suiiieJ tliat the Master of the Rolls was alluding to Read v. Anderson, 13
Q. v.. D. 779.
SECT. I.] LEIGH V. DICKESON. 273
option to adopt the benefit, he will be liable to repay the money expended ;
but if he declines the benefit he will not be liable. But sometimes the
money is expended for the benefit of another person under such circum-
stances, that he cannot help accepting the benefit, in fact that he is bound
to accept it : in this case he has no opportunity of exercising any option,
and he will be under no liability. Under which class does this case come 1
Tenants in common are not partners, jjid_it-has-been so held : one of them
is not an agent for another. The cost of the repairs to the house was a
voluntary payment by the defendant, partly for the benefit of himself and
partly for the benefit of his co-owner ; but the co-owner cannot reject the
benefit of the repairs, and if she is held to be liable for a proportionate
share of the cost, the defendant will get the advantage of the repairs with-
out allowing his co-owner any liberty to decide whether she will refuse or
adopt them. The defendant cannot recover at common law ; he cannot
recover for money paid in equity, for that is a legal remedy : there is no
remedy in this case for money paid. But it is said that there is a remedy
in equity : a suit for a partition may be maintained in equity : ^ that is a
remedy which is known and recognized in a court of equity ; in a suit in
the Chancery Division expenditure between tenants in common would be
taken into account. Reference has been made during the argument to an
old form of writ ; it looks to be a writ of a mandatory nature : but it has
proved to be wholly unworkable in a court of common law. Therefore the
rights of tenants in common* went into chancery, where a suit for a pai-ti-
tion might be maintained. That is the only remedy which exists either at
law or in equity. No such claim as that put forward in the present counter-
claim can be found to have been upheld either at law or in equity. If the law
were otherwise, a part-owner might be compelled to incur expense against
his will: a house might be situate in a decaying borough, and it might be
thought by one co-owner that it would be better not to repair it. The re-
fusal of a tenant in common to bear any part of the cost of proper repair
may be unreasonable ; nevertheless, the law allows him to refuse, and no
' action will lie against him. The judgment of Pollock, B., was right, and
I this appeal must be dismissed.
j Cotton, L. J. I am of the same opinion. The plaintiffs have brought
• an action to recover rent, and the defendant by his counter-claim raises the // /^ (fj c < I—
question whether one tenant in common is liable to another for the cost of
repairs.
Then a question is raised as to repairs, and the objection is taken upon
demurrer to the counter-claim. I think that it must be assumed that the
house was in a bad state of repair, and that the repairs executed by the
defendant were necessary. As to the claim for improvements, it has been
^ A suit for a partition might formerly have been maintained in a court of common
law: Co. Litt. 163 a ; 31 Hen. 8, c. 1; 32 Hen. 8, c. 32 ; 8 & 9 Wm. 3, c. 31; but the
writ was abolished by 3 & 4 Wm. 4, c. 27, s. 36.
VOL. II. — 18
274
LEIGH V. DICKESON.
[chap. III.
urged that no tenant in common is entitled to execute improvements upon
the property }ieldm_common. and then to chartre liis co-tenant in cotnmon_
with the'cost. This seems to me the true view, and I need not further
discusTthelpiestion as to improvements. As to the question of repairs, it
is to be observed that when two persons are under a common obligation,
one of them can recover from the other the amount expended in discharge
or fulfilment of the conmion obligatiou ; but that is not the position of
affairs here : one tenant in common cannot charge another with the cost of
repairs without a request, and in the present case it is impossible even to
imply a request. No action for money paid will lie at common law ; and
in equity there is no remedy against a co-tenant in common, except in the
case which I will presently mention. It was suggested, however, that at
common law a right of contribution existed between tenants in common ;
and reference was made to Fitz. Nat. Brev. 127 : a form of the writ Je
reparatione facienda is there set out : but the language of the writ assumes
that the tenants in common or joint tenants are bound to repair the mill
or house ; it assumes an obligation or duty towards third persons. The
existence of this obligation or duty explains the writ. A similar explana-
tion may be given of the writ of contribution mentioned in Fitz. Nat. Brev.
162. Reference was also made to Co. Litt. 200, where it is said that one
tenant in common or joint tenant may have a writ de reparatione facienda
against another ; but Lord Coke is there referring to the form of writ given
in Fitz. Nat. Brev. 127. I cannot assent to the suggestion that the pas-
sage in Co. Litt. 200, shows that one tenant in common may compel at his
pleasure another tenant in common to contribute to the repairs of a house.
I think that the passages in Fitz. Nat. Brev. 127, 1G2, do not present any
dilHculty, and are not inconsistent with the conclusion at which I have
arrived. Therefore, no remedy exists for money expended in rcpairsjby
, one tenant in common, so long as the property Is enjoyed ni common ; but
{ ! in a"suit for a partition it is usual to have an'inquiry as to those expenses
^ "oTwhich nothing could be recovercd_so long as the parties enjoyed thciF
I property in common ; when it is desired to put an end to that state of
THTngs, it is then necessary to consider what has been expended in improve-
ments or repairs : the property held in common has been increased in value
by the improvements and repairs ; and whether tlie prope^i'ty is divided nr
soTcf l)y the decree of the court, one party cannot take the increase in value,
"in order to
^
; without making an allowance fo7~what hati beuii uxpeiideC
! obtain that increased value ; in fact, the execution of tlie repairs and im-,
provemeuts is adopted and sanctioned by accepting the increased value.
There is, therefore, a mode by which money expended b}' one tenant in
common fur repairs can be recovered, but the procedure is coniined to suits
for partition. Tenancy in common is an inconvenient kind of tenure ; but
if tenants in common disagree, there is always a remedy by a suit for a
partition, and in this case it is the only remedy.
SECT. I.] LEIGH V. DICKESON. 275
LiNDLEY, J. I am of the same opinion. This is a case as to the mutual
rights of tenants in common, and two questions have arisen in the action,
the one as to the right of the phiintiffs to recover rent, the other as to the
right of the defendant to recover for repairs which he has caused to be
executed.
The second question is, whether the plaintiffs are hable to pay a share
in proportion to their interest of the cost of the repairs executed by the
defendant. I will assume that the repairs in question were necessary and
proper. I have looked at all the authorities cited during the argument,
and I have not omitted anything likely to throw light upon the matter.
Is there any obligation upon one tenant in common to contribute to ex-
penses properly incurred by another tenant in common in respect of the
property held in common 1 Does the law cast upon tenants in common the
duty to contribute for the cost of maintaining the property in good con-
dition 1 I have referred to the passages cited from Co. Litt. and Fitz. Nat.
Brev. ; but on looking into the matter more closely than I was able to do
during the argument, I think that they do not support the contention for
the defendant. Upon turning to Fitz. Nat. Brev., p. 1G2, where the
nature of a writ of contribution is treated of, it is said : " The writ of con-
tribution lieth where there are tenants in common, or who jointly hold a
mill pro indiviso, and take the profits equally, and the mill falleth into
decay, and one of them will not repair the mill ; now the other shall have
a writ to compel him to be contributory to the reparations." The form of
the writ is then set out, from which it appears that the joint tenants " are
bound to the reparation and support of the same mill." Two things strike
me upon reading the form of the writ : first, it is a case of tenancy in com-
mon of a mill ; secondly, all the tenants in common are bound to repair it.
What obligation can there be on the owners of a mill to repair it, except
upon two grounds 1 the one ground is where they are entitled to compel
persons dwelling in the neighborhood to grind their corn at the mill ; the
other is where it would be a public nuisance to suffer the mill to go to
decay. Neither of those grounds exists in the present case. Suppose a
case where one tenant in common wishes to repair a house, and the other
does not ; no action at law and no suit in equity will lie to recover a con-
tribution for the cost of the repairs, although all the tenants are necessarily
thereby benefited. 1 have looked into the titles, " Account," " Contribu-
tion," and " Action upon the Case " in the Digests ; and it is not a little
singular that no remedy for any of the inconveniences attending a tenancy
in common can be found except that of partition. Tenancy in common is
a tenure of an inconvenient nature, and it is unfit for persons who cannot
agree among themselves ; but the evils attaching to it can be dealt with
only in a suit for partition or sale, in which the rights of the various own-
ers can be properlj^ adjusted. It seems to me that this appeal must be
dismissed. Appeal dismissed.
276 CHASE V. CORCORAN. [CHAP. III.
BARTHOLOMEW v. JACKSON.
In the Supreme Coukt of Judicature of New York, May Term, 1822.
[Reported in 20 Johnson, 28.]
In error, on certiorari to a justice's court. Jackson sued Bartholomew
before a justice, fur work and labor, etc. B. pleaded no7i assnmjjsit. It
appeared in evidence, that Jackson owned a wheat stubble-field, injNhich
B. had a stack of wheat, which he had promised to remove_in,due_sea§on
for preparing^the ground for a fall crop. The time for its removal having
arrived, J. sent a message to B., which, in his absence, was delivered to
his family, requesting the immediate removal of the stack of wheat, as he
wished, on the next day, to burn the stubble on the field. The sons_DX_B.
answered, that they would remove the stack by ten o'clock the next mom-
\}^, J. waite"d^til that hour^and then set fire to the stubble in a remote
part of the field. The fire spreading rapidly, and threatening to burn the
stack of wheai^and J., finding thaTB. and his sons neglected to remove"
the stack, set to work and removed i^ himself, so as to secure it for B. ;
and he claimedlo recover ^maggs^rjhejwork and labp_r jn it^ remoyah
The jury gave a verdict for the plaintiffjor fifty cents, on which the justice
gave judgment, with costs.
Platt, J., delivefed^'the opinion of the court. I should be very glad to
afl&rm this judgment ; for though the plaintiff was not legally entitled to
sue for damages, yet to bring a certiorari on such a judgment was most un-
worthy. The plaintiff performed the service without the privity or request
of the defendant ; and there was, in fact, no promise, express or implied.
If a man humanely bestows hisjabor, and even risks his life, in voluntarily
aiding to preserve his neighbor's house from destruction by fire, the law^
considers the service rendered as gratuitous, and it, therefore, forms no
ground of action. The judgment must be reversed.
"" Judgment reversed.
GEORGE H. CHASE v. JAMES CORCORAN.
In the Supreme Judicial Court of Massachusetts, January Term, 1871.
[Reported in 106 Massachusetts Reports, 286.]
Gray, J. The evidence introduced at the trial tended to prove the fol-
lowing facts : The plaintiff, while engaged with his own boats in the Mystic
River, within the ebb and flow of the tide, found the defendant's boat adrift,
SECT. I.] CUASE V. CORCOKAN. 277
with holes in the bottom and the keel nearly demolished, and in danger of
sinking or being crushed between the plaintiff's boats and the piles of a
bridge unless the plaintiff had saved it. The plaintiff secured the boat,
attached a rope to it, towed it ashore, fastened it to a post, and, after put-
tin" up notices in public places in the nearest town, and making other in-
quiries, and no owner appearing, took it to his own barn, stowed it there
for two winters, and during the intervening summer made repairs (which
were necessary to preserve the boat) and for its better preservation put it
in the water, fastened to a wharf, and directed the wharfinger to deliver it
to anyone who should prove ownership and pay the plaintiff's expenses
about it. The defendant afterwards claimed the boat ; the plaintiff refused
to deliver it unless the defendant paid him the expenses of taking_care_of_
it ; and the defendant then_t^k_die JhoaJb_by a, wriL_Qf replRYinj_without
"^ying the plaintiff anything^ This action is brought to recover money
paid by the plaintiff for moving and repairing the boat, and compensation
for his own care and trouble in keeping and repairing the same, amounting
to twenty-six dollars in all.
The plaintifftestified, without objection, that the boat, when found by
him, was worth five dollars. He was then asked by his counsel, what, when
he found it, he considered it worth. This evidence was properly rejected
as immaterial.
The plaintiff requested the chief justice of the Superior Court to rule that
the boat was not lost goods, within the sense of the Gen. Sts. c. 79.
But the learned judge refused so to rule, and ruled that upon all the evi-
dence the plaintiff could not maintain his action, and directed a verdict for
the defendant. We are of opinion that this was erroneous.
~~There is no statute of the Commonwealth applicable to this case.
Chapter 78 of the Gen. Sts., concerning " timber afloat or cast on shore,"
is expressly limited in all its provisions to " logs, masts, spars, or other
timber," and does not include boats or vessels. Chapter 79, relating to
"lost money or goods," and "stray beasts," found in any town or city,
clearly applies to lost property found on~land only, and not to property
afloat on tidewaters, without the limits of any city or town,, and within
the admiralty jurisdiction of the United States.^ Chapter 81 is " of wrecks
and shipwrecked goods." These words, in their ordinary legal meaning,
are confined to ships and goods cast on shore by the sea, and cannot be ex-
tended to a boat or other property aHoat, not appearing to have been_eyer
cast ashore, or thrown overboard or lost from a vessel in distress. Hale De
Jure "Bans, c. V ; 1 Hargr. Law Tracts, 37 ; 3 Dane Ab. 133 ; Sheppard
V. Gosnold ; ^ Palmer v. Eouse ; ^ Baker v. Hoag.*
The claim of the plaintiff is therefore to be regulated by the commoii
law^^ It is not a claim for salvage for saving the boat when adrift and in
1 3 Dane Ab. 135. ~^ Vaiigh. 159, iti8. 8 3 h. & N. 505.
* 3 Selden, 555, 558.
278
BOSTON ICE COMPANY V. TOTTER.
[chap. III.
A!
\
danger on tide water; and_docs not present, thn guRstinn whether the p1air|-
tiff had any lieu upon the boat^or could recover for salva<j;e services in nn
I action at common law. "His clainT is for the reasonable expenses of keeping
and repairing the boat after he had brought it to the shore ; and the single
questioiTis, ^-hether a promise is to be implied by law from the owner of
a boat, upon taking it from a person who has found it adrift on tide water
andljroughtjl^shore, to_pay:him for the necessary expenses of preserving
tHe boat while in his possession. We are of opinion that such a promise is
tn^be^ implied. The plaintiff, as the finder of the boat, had the lawful
possessitiu of it, and the ngnt to do what was necessary for its preservation.
Whatever might have been the liability of the owner if he had chosen to let
the finder retain the boat, by taking it from him he made himself liable to
pay tlie reasonable expenses incurred in keeping and repairing it. Nicliol-
son V. Chapman ; '■ Amory v. t'lyn ; '"■ rome v. Four Cribs of "Lumber ; ^ 3 Dane
Ab. 143; Story on Bailments, §§ 121 a, 621 a; 2 Kent Com. (Gth Ed.)
35G ; 1 Domat, pt. 1, lib. 2, tit. 9, art. 2.
Exceptions sitstained.
A. V. Lynch and C. Abbott, E. W. Sanborn with them, for the plaintiff.
No counsel appeared for the defendant.
BOSTON ICE COMPANY v. EDWARD POTTER.
In the Supreme Judicial Court of Massachusetts, June 28, 1877.
[Reported in 123 Massachusetts Reports, 28.]
CoNTRxVCT on an account annexed, for ice sold and delivered between
April 1, 1874, and April 1, 1875. Answer, a general denial.
At the trial in the Superior Court, before Wilkinson, J., without a jury,
the plaintiff offered evidence tending to show the delivery of the ice, and its
acceptance and use by the defendant from April 1, 1874, to April 1, 1875,
and that the price claimed in the declaration was the market price. It
appeared that the ice was delivered and used at the defendant's residence
in Boston, and the amount left daily was regulated by the orders received
there from the defendant's servants ; that the defendant, in 1873, was
supplied with ice by the plaintiff, but, on account of some dissatisfaction
with the manner of supply, terminated his contract with it; that the
defendant then made a contract with the Citizens' Ice Company to furnish
him with ice ; that some time before April, 1874, the Citizens' Ice Company
sold its business to the plaintiff, with the i)rivilege of s>ipplying ice to its
customers. There was some evidence tending to show that the plaintiff
gave notice of this change of business to the defendant, and informed him
1 2 H. Bl. 254, 258 and note. 2 m Joluis. 102. " Taney, 533, 547.
SECT. I.] BOSTON ICE COMPANY V. POTTER. 279
of its intended supply of ice to him ; but tliis was contradicted on the part
of the defendant.
The judge found that the* defendant received no notice from the plaintiff
until after all the ice had been delivered by it, and that there was no contract
of sale between the parties to this action except what was to be implied
from the delivery of the ice by the plaintiff to the defendant and its use by
him ; and ruled that the defendant had a right to assume that the ice in
question was delivered by the Citizens' Ice Company, and that the plaintiff
could not maintain this action. The plaintiff alleged exceptions.
J. P. Farley, Jr., for the plaintiff.
E. C. Bumjms and E. M. Johnson for the defendant.
Endicott, J. To entitle the plaintiff to recover, it must show some
contract with the defendant. There was no express contract, and upon the
facts stated no contract is to be implied. The defendant had taken ice
from the plaintiff in 1873, but, on account of some dissatisfaction with the
manner of supply, he terminated his contract, and made a contract for his
supply with the Citizens' Ice Company. The plaintiff afterward delivered
ice to the defendant for one year without notifying the defendant, as the
presiding judge has found, that it had bought out the business of the
Citizens' Ice Company, until after the delivery and consumption of the ice.
The presiding judge has decided that the defendant had a right to assume
that the ice in question was delivered by the Citizens' Ice Company, and has
thereby necessarily found that the defendant's contract with that company
covered the time of the delivery of the ice.
There was no privity of contract established between the plaintiff and
defendant, and without such privity the possession and use of the property
will not support an implied assumpsit. Hills v. Snell.^ And no presump-
tion of assent can be implied from the reception and use of the ice, because
the defendant had no knowledge that it was furnished by the plaintiff, but
supposed that he received it under the contract made with the Citizens'
Ice Company. Of this change he was entitled to be informed.
A party has a right to select and determine with whom he will contract,
and cannot have another person thrust upon him without his consent. It
may be of importance to him who performs the contract, as when he con-
tracts with another to paint a picture, or write a book, or furnish articles
of a particular kind, or when he relies upon the character or qualities of an
individual, or has, as in this case, reasons why he does not wish to deal
with a particular party. In all these cases, as he may contract with whom
he pleases, the sufficiency of his reasons for so doing cannot be inquired
into. If the defendant, before receiving the ice, or during its delivery, had
received notice of the change, and that the Citizens' Ice Company could
no longer perform its contract with him, it would then have been his un-
doubted right to have rescinded the contract and to decline to have it
1 104 Mass. 173, 177.
280 BOSTON ICE COMPANY V. POTTER. [CIIAP. IIL
executed by the plaintiff". Bat this he was unable to do, because the
plaintiff failed to inform him of that which he had a right to know.
Orcutt V. Nelson ; ^ Winchester v. Howard ; "^ Hardman v. Booth ;^ Humble v.
Hunter;* Ilobson v. Drummond.^ If he had received notice and continued
to take the ice as delivered, a contract would be implied. Mudge v. Oliver j*
Orcutt V. Nelson ; ^ Mitchell v. Lapage.''
There are two English cases very similar to the case at bar. In Schmal-
mg V. Thomlinson,^ a firm was employed by the defendants to transport
goods to a foreign market, and transferred the entire employment to the
plaintiff, who performed it without the privity of the defendants, and it was
held that he could not recover compensation for his services from tlio
defendants.
The case of Boulton v. Jones ^ was cited by both parties at the argu-
ment. There the defendant, who had been in the habit of dealing with one
Brocklehurst, sent a written order to him for goods. The plaintiff, who had
on the same day bought out the business of Brocklehurst, executed the
order without giving the defendant notice that the goods were supplied by
him and not by Brocklehurst. And it was held that the plaintiff could
not maintain an action for the price of the goods against the defendant. It
is said in that case that the defendant had a right of set-off against Brock-
lehurst, with whom he had a running account, and that is alluded to in the
opinion of Baron Bramwell, though the other judges do not mention it.
The fact that a defendant in a particular case has a claim in set-off against
the original contracting party shows clearly the injustice of forcing another
person upon him to execute the contract without his consent, against whom
his set-off would not be available. But the actual existence of the claim in
set-off cannot be a test to determine that there is no implied assumpsit or
privity between the parties. Nor can the non-existence of a set-off raise
an implied assumpsit. If there is such a set-off, it is sufficient to state that,
as a reason why the defendant should prevail ; but it by no means follows
that because it does not exist the plaintiff can maintain his action. The
right to maintain an action can never depend upon whether the defendant
has or has not a defence to it.
The implied assumpsit arises upon the dealings between the parties to
the action, and cannot arise upon the dealings between the defendant and
the original contractor, to which the plaintiff was not a party. At the
same time, the fact that the right of set-off against the original contractor
could not, under any circumstances, be availed of in an action brought
upon the contract by the person to whom it was transferred and who
executed it, shows that there is ni> privity between the parties in regard to
the subject-matter of this action.
' 1 Gray, 536, TA2. « 97 Mass. 303. » 1 H. & C. 803.
* 12 Q. R. 310. 6 2 B. & Ad. 303. 6 i Allen, 74.
7 Holt N. P. 253. » 6 Taunt. 147. » 2 H. & N. 564.
SECT. I.] EARLE V. COBURN. 281
It is, therefore, immaterial that the defendant had no claim in set-ofF
against the Citizens' Ice Company.
We are not called upon to determine what other remedy the plaintiff
has, or what would be the rights of the parties if the ice were now in
existence. Exceptions overruled.
AMOS R. EARLE v. JESSE J. COBURN.
In the Supreme Judicial Court of Massachusetts, April 9, 1881.
[Reported in 130 Massachusetts Reports, 596.]
Contract upon an account annexed for the board and stabling of the
defendant's horse, fi-om April 14, 1877, to January 17, 1878. Answer, a
general denial. Trial in the Superior Court, before Dewey, J., who re-
ported the case for the determination of this court, in substance as
follows : —
It was in evidence that, prior to April 14, 1877, the plaintifi" had ex-
changed the horse in question with the defendant for a wagon ; that a
controversy arose between them as to the character of the transaction, and
its effect upon the title of each in the property exchanged ; that the defend-
ant returned the horse to the stable of the plaintiff, and demanded of him
the wagon ; that the plaintiff refused to deliver the wagon, and the defend-
ant thereupon left the horse on the plaintiff's premises and brought an
action against the plaintiff for a conversion of the wagon ; that at the trial
of that action the then plaintiff introduced evidence to show that the trans-
action was of such a character that the then defendant acquired no title in
the wagon, and that he acquired no title in the horse; and evidence was
introduced by the then defendant to show that the exchange was complete,
and that he acquired title to the wagon and parted with his title to the
horse; and that in that action the jury returned a verdict for the defend-
ant, upon which judgment was duly entered by the court.
It was also in evidence at the trial of the present action that, at the time
the defendant left the horse at the plaintiff's stable, both parties disclaimed
ownership ; that the plaintiff told the defendant that if he left it on his
premises he must do so on his own responsibility and expejise ; that the
defendant told the plaintiff he would have nothing more to do with the
horse, and would not be responsible for it; that, on August 1, 1877,
the plaintiff told the defendant that he had got a horse of his at his stable
and should charge hira for its board and keeping, and that the defendant
replied that he had no horse at the plaintiff's stable.
The horse was fed and stabled by the plaintiff during the whole time
embraced in the declaration, and the defendant made no other provision
for his care and keeping, and did not demand him of the plaintiff, and gave
282 EAKLE V. COBURN. [CHAP. III.
him no orders respecting the same ; and the plaintiff testified that he never
sent the defendant any bill for board and stabling of the horse, and never
made any demand except as stated in the interview of August 1, 1877.
Upon this evidence, the judge ruled that the action could not be main-
tained, directed a verdict for the defendant, and reserved the question of
the correctness of the ruling for the determination of this court.
J. Hoplins for the plaintiff.
A. G. Bullock for the defendant.
Lord, J. This case cannot be distinguished in principle from Whiting
V. Sullivan.^ In that case it was said, "As the law will not imply a prom-
ise, where there was an express promise, so the law will not imj)ly a promise
of any person against his own express declaration ; because such declaration
is repugnant to any implication of a promise." As applicable to that case
and to the case at bar, this language is entirely accurate. There may he
cases where the law will imply a promise to pay by a party who protests
he will not pay ; but those are cases in which the law creates a duty to
perform that for which it implies a promise to pa}-, notwithstanding the
party owing the duty absolutely refuses to enter into an obligation to per-
form it. The law promises in his stead and in his behalf If a man abso-
lutely refuses to funiish food and clothing to his wife or minor children,
there may be circumstances under which the law will compel him to per-
form his obligations, and will of its own force imply a promise against his
protestation. But such promise will never be implied against his protest,
except in cases where the law itself imposes a duty ; and this duty must
be a legal duty. The argument of the plaintiff rests iipon the ground that
a moral duty is sufficient to raise an implied promise, as well as a legal
duty. He cites no authority for this proposition, and probably no authority
can be found for it. The common law deals with and defines legal duties,
not moral. Moral duties are defined and enforced in a different forum.
Under the particular circumstances of this case, it would be futile to in-
quire what moral duties were involved, or \ipon whom they devolved. It
is sufficient to say that no such legal duty devolved upon the defendant as
to require him to pay for that for which he refused to become indebted.
In Boston Ice Co. v. Potter,^ the court refused to hold the defendant to an
implied promise to pay for ice which he had received and consumed during
a year or more ; and this upon the ground that a promise will not neces-
sarily be implied from the mere fact of having derived a benefit. The cases
arising in this country and in England are collated in the opinion in that
case. Those cases, equally with Whiting v. Sullivan,^ sustain the ruling of
the presiding judge in this case. Judgment on the verdict.^
1 7 Mass. 107. ^ 123 Mass. 28.
8 Force v. Haines, 2 Harr. (N. J.) 385, accord. —Ed.
SECT. II.] WALKER V. MATTHEWS. 28'
SECTION II.
UNINTENTIONALLY.
WALKER V. MATTHEWS.
In the Queen's Bench Division, November 16, 1881.
[Reported in Law Reports, 8 Queen's Bench Division, 109.]
Appeal from the Huntingdon County Court.
The plaintiff sued for the delivery of two cows and two calves belonging
to him, valued at 45/., and for special damages caused by their detention.
The defendant counter-claimed in respect of the keep of the cows and
calves during the time they had been in his possession, and also for money
paid and expenses incurred in respect of them respectively, 15/. 19.?., after
allowing for the value of the milk of the cows.
At the trial before the County Court judge and a jury, it appeared that
on the 7th of June, 1880, the two cows, then in calf, were stolen from the
plaintiff's field. On the 11th of June, the thief, having driven them thirty
miles, sold them in market overt to a cattle dealer, who on the 1 6th of
June sold them to the defendant, a bona fide purchaser for value and with-
out notice of the felony. On the 21st of June, the plaintiff, having traced
the cows, demanded them of the defendant, who refused to give them up.
They calved while in his possession, and were also ill of foot and mouth
disease for a time. On the 5th of April, 1881, the thief was convicted of
stealing the cows, and on the 9th of April notice of the conviction was
given to the defendant, and the cows and calves were demanded of him on
behalf of the plaintiff. The plaintiff established his right to the beasts,
and objected that the defendant could not in law recover for the keep of
them. The judge overruled the objection. The jmy found a verdict for
the plaintiff on the claim, and for the defendant 15/. 19s. on the counter-
claim, and judgment to that amount on the counter-claim was given for the
defendant.
A rule having been obtained calling on the defendant to show cause why
judgment for the plaintiff on the counter-claim should not be entered.
Cockered showed cause. On conviction of the thief, the pi-operty revested
in the plaintiff; * and it is admitted that he could recover the animals, and
even the value of the milk. Scattergood v. Sylvester. '■^ Credit has there-
fore been given for the value of the milk yielded by the cows while in
1 24 & 25 Vict. c. 96, s. 100.
2 15 Q. B. 506 ; 19 L. J. n. s. Q. B. 447.
284 GILLET V. MAYNAKD. [CHAP. III.
possession of the defendant. But he is entitled to be repaid for the cost of
their keep, at least up to the conviction and demand. Until the convic-
tion the property was in him, and he might have sold the beasts ; instead
of doing so he took care of them, and kept them during a time in which
they were ill, and therefore unremunerative.
[Lopes, J. He was keeping his own property, and cannot, in the absence
of any contract with the plaintiff, claim from him the costs of keep.]
It must be conceded then that his position is even worse as regards the
expense of keeping them after the conviction and demand, wlieu the property
revested and the detention became wrongful.
W. Garth, in support of the rule, was not heard.
Grove, J. The judgment for the counter-claim was wrong in law, and
the appeal must be allowed.
Lopes, J., concurred. Jiule absoluie.
GILLET, Administrator of CLEMENS v. MAYNARD.
In the Supreme Court of Judicature of New York, November
Term, 1809.
[Reported in 5 Johnson, 85.]
This was an action of assumpsit for money had and received to the use
of the plaintiif; and for work and labor performed, money lent, etc. Plea,
non assumjnit. The cause was tried at the Oneida circuit, in June, 1809,
before Mr. Justice Yates.
At the trial, the plaintiif offered to give in evidence a parol contract,
between the intestate and the defendant, for the sale of one hundred acres
of land, and that a sum of money had been paid by the intestate, and who
had, after the making of the contract, and while in possession of the land,
imdcr the contract of sale, performed labor in clearing it, and that the de-
fendant had since violated and abandoned the contract. The counsel for
the defendant objected to this evidence ; but the judge admitted it, subject
to the opinion of the court upon the facts as they should appear on the evi-
dence. The plaintiff tlieu proved, that in May, 1803, Clemens, the intes-
tate, made a parol contract with the defendant, for the purchase of one
hundred acres of land, in the Oneida Reservation, at .^8 per acre. $20 were
paid ; and one-half of tlie purchase-money was to be jjaid in 1812, when the
defendant's bond and mortgage, given to the State for the land, became
due, and the residue in a reasonable time thereafter. This was proved by
a witness who was jn-esent at tlie conversations between the intestate and
the defendant, and while the former was in possession of the land. It ap-
peared also, that the intestate, in 1803, sold fifty acres of the land to A. C,
who agreed to pay the purchase-money to the defendant, and who accord-
SECT. II.] GILLET V. MAYNAKD. 285
in"ly paid him $133. In November, 1807, the plaintiff called on the de-
fendant, who exhibited to him an account, in which he acknowledged that
he had received of the intestate various payments on account of the land,
making the sum of $188, and with the interest amounting to $2G3,36. It
was also proved, that the intestate cleared, enclosed, and sowed eight acres
of the land. In the autumn of 1807, the plaintiff offered to pay the de-
fendant $24.G0, on account of the fifty acres possessed by the intestate,
which the defendant refused to receive ; and wlien the plaintiff demanded
a deed, he refused to give any, or to do anything about it. In December
following, the plaintiff made a formal tender of the money, and demanded
a deed ; but the defendant would not receive it, or execute a deed.
The defendant proved, that the intestate by his agreement was to pay
$400 in 1803, and that the residue of the purchase-money was to be se-
cured by bond and mortgage, and the deed to be given when the first
payment was made; that in the autumn of 1807, the defendant took pos-
session of the fifty acres which the intestate had possessed, and sold them
to another person.
The judge charged the jury, that the plaintiff was entitled to recover,
not only for the money paid by the intestate, but also for the clearing and
improvements on the land. The jury found a verdict, accordingly, for
1413.36.
A motion was made to set aside the verdict ; and the case was submitted
to the court, without argument.
Thompson, J., delivered the opinion of the court. This was an action
for money had and received, and for work, labor, and services. The object
of the suit, as appears by the case, was to recover back money paid by the
intestate to the defendant, on a parol contract for the purchase of a tract
of land, which contract had never been fully executed ; and also to recover
compensation for the improvements made by the intestate while in posses-
sion of the land under such contract. It does not satisfactorily appear
from the case, what were the precise terms of the contract made in the
year 1803. It is obvious, however, from what passed between the parties
in the spring of 1807, that neither of them pretended that the terms of
the contract had been complied with. The conduct of the defendant can
be viewed in no other light than as a relinquishment of the contract. He
refused to receive any more money from the plaintiff. He took back the
possession of the premises, which had previously been in the possession of
the intestate ; offered them for sale, and actually delivered over the pos-
session to a third person. These acts are altogether inconsistent with a
claim to have the contract completed. If the contract be considered as
rescinded, no doubt can be entertained but that the plaintiff is entitled to
recover back the money paid by the intestate. The case of Towers v.
Barrett ^ fully establishes the principle, that assumpsit for money had and
M T. R. 133.
286 • SHEEVE V. GRIMES. [CHAP. IIL
received lies to recover back money paid, on a contract, which is put an
end to ; either where, by the terms of the contract, it is left in the plaiu-
tifTs power to rescind it, by any act, and he does it, or where the defendant
afterwards assents to its being rescinded. I see no ground, therefore, upon
which the defendant can resist a reimbursement of the sums he has received
as a payment upon the contract which he has himself put an end to. The
plaintift', however, ought not to have recovered any compensation for the
improvements. There was no express or implied undertaking by the de-
fendant to pay for them. When the work was done by the intestate, it
was for his own benefit ; and if he voluntarily abandoned his contract,
without any stipulation as to the improvements, he must be deemed to
have waived all claim to any compensation for them.
The verdict ought, therefore, to be reduced to $263.36, being the money
actually advanced, and the interest. Upon the plaintiff's consenting to
take judgment for that sum only, and to remit the residue, the motion on
the part of the defendant will be denied ; otherwise it is granted with costs
to abide the event. Judgment accordingly.
SHREVE V. GEIMES.
In the Court of Appeals of Kentucky, October 20, 1823.
[Reported J7i 4 Littell, 220. ]
Under a decree in favor of the now appellant, the mills and farm of a
certain Thomas Caldwell were sold, and tlie appellant became the purchaser.
Grimes, the present appellee, resided upon the estate at the time, claiming
under some contract made with Caldwell, as a purchaser from him ; but of
what kind does not appear in this cause. Immediately after the purchase,
Grimes agreed to become the tenant of the appellant, and to receive and
hold possession under him, for one year ; and accordingly, an article of
agreement was entered into and signed by the parties, in which the appellee
stipulated to pay the rent of $750, and passed his notes for the same,
payable by instalments of three, six, nine, and twelve months, each being
$187.50 ; and at the end of the term, bound himself to restore the estate.
The appellant stipulated to keep the appellee in possession, and to allow
the appellee a credit for such necessary and lasting improvements or
repairs as should be requisite in the opinion of the appellee, and be
consented to by the appellant, during tlie term, to the amount of
$226.80, and no more, on the last instalments. At the close of tliis year,
a new lease was made for one year longer, and reduced to writing, in the
form of an article of agreement signed by the parties, in which the same
rent was stipulated, with a little variation as to the instalments ; and also
SECT. II.] SHREVE V. GRIMES. 287
an agreement that the last instalment, which was .$200, might be expended
•' in repairs to said mills, j)rovided tliat the necessary repairs to the mills
rai^ht require that sum within the year, in the opinion and judgment of
both parties, or so much thereof as might be judiciously expended in repairs,
in the judgment of both parties."
After the close of the last year, the appellee brought this action of as-
sumpsit, and declared in two counts for work and labor, care, diligence, and
materials expended on the mills and farm aforesaid, during the existence of
the aforesaid leases, and exhibited and proved a large account for improve-
ments done upon the premises, of nearly $1400 value, and showed that
the prices were reasonable. He also proved, that while he was building a
bridge across the mill-dam, the appellant was there and dined with the
appellee, and said in conversation at that time that the job was an ardu-
ous undertaking, but he had no doubt it would be useful ; that the appel-
lant lived in the neighborhood, and was at and passed the mills frequently,
and as often conversed with the appellee while the work was doing ; but
the witnesses did not hear what was said. One of these occasions was
while the appellee was clearing of land, which was an act directly contrary
to the stipulations of the lease. One witness deposed, that on the day of
sale the commissioner appointed to execute the decree, by selling the farm
and mills, who is since dead, informed him that the appellant had bought
the land and mills ; but the appellee was to keep them, and had purchased
them of the appellant by a parol agreement, and was to pay interest at the
rate of ten per centum per annum on the amount of the price, which was
the same sum due from Caldwell to the appellant, for which the land was
sold, that is, $5000, with some interest and costs, until he, the appellee,
paid up the price. The witness further stated, that in a conversation with
the appellant, a few days afterwards, the precise expressions of which he
could not recollect, his impression was, that he understood about the same
thing from the appellant which he had learned from the commissioner.
But some time afterwards, he, the witness, was informed that the appellee
held the mills under lease.
The appellant on his part introduced the leases, or two articles of agree-
ment, which appeared to be in his own handwriting, except the signatures
of the witnesses and appellee. He proved that at the close of the first
year he settled with the appellee, and gave him credit for an account for
improvements and repairs, to the amount of $211.75, being all the im-
provements then claimed, and took his note for the balance of rent then
due, on which he, the appellee, afterwards confessed judgment, after a small
credit was indorsed for grinding and sawing. This last witness, who was
the appellant's son-in-law, heard no further claim for improvements at that
time. The same witness further stated, that at the time the second agree-
ment or lease was entered into, he went with the appellant to the appellee's
house, when the appellant proposed to rent the mills another year. The
288 STIREVE V. GRIMES. [CHAP. III.
appellee appeared to be angi-y, and observed tliat he might as well die by
the sword as famine ; but after a while he was reconciled and entered into
the second agreement. This was, in substance, all the evidence, except
such as went either to increase or diminish, on the respective sides, the
value of the improvements for which the suit was brought.
The appellee, on this evidence, contended that there was a sale to him,
verbally, of the farm and mills, known only to the commissioner ; that the
leases were only colorable, to cover the interest of ten per centum on the
price ; while the appellant insisted for the transaction being as stated upon
the face of the writings, and that there was no sale.
The counsel for the appellee moved the court to instruct the jury, that
if they should find from the evidence that the appellee made the improve-
ments claimed, under a verbal agreement for the purchase of the property
which had never been consummated or reduced to writing, the appellee was
entitled to a verdict for their value, so far as the improvements were
necessary and valuable to the appellant, as proprietor of the soil, and made
with his privity, consent, and approbation. This instruction was given by
the court.
The appellant moved the court on his part to instruct the jury, that if
they were satisfied, from the evidence, that the contracts for renting the
premises were reduced to writing, they could not find for the appellee in
this form of action, unless the parties authorized the making of the improve-
ments by some subsequent contract. This application was overruled by
the court.
After verdict, the appellant moved for a new trial, on the ground that
the verdict was against the law and evidence of the case. This motion was,
also, overruled. And the appellant, having excepted to these opinions and
spread the evidence upon the record, has brought the whole case before this
court by appeal ; and in his assignment of eiTor complains of these de-
cisions of the court below.
The principle involved in the instruction given by the court below con-
tains within it this simple inquiry, can a person who has bought and
possesses land by a parol contract, which cannot be enforced under our act
to prevent frauds and perjuries, recover from his vendor the ameliorations
and improvements made upon the land, while he thus held it, iu an action
of assumpsit 1
It has been already settled by this court, in the case of Keith v. Paton,*
that the consideration paid for land under such circumstances may be re-
covered back ; and it seems evident, that an action for money had and
received, or detinue or trover for the property paid, or a quantum meruit
for labor and services, paid as the price of the land, might be recovered
back. But whether the ameliorations of the soil made in the mean
time can be so recovered, is a different question. No doubt, the party, in
1 1 Slarsh. 23.
SECT. II.] SHREVE V. GRIMES. 289
some such cases, is entitled to some remedy for improvements, and the op-
posite side for rents and profits ; and this court has, in suits in chancery,
directed one to be discounted against the other. But still this does not
answer the question, whether any action at law can be brought, and if so, is
this the proper one? The jurisdiction of a court of equity over a sub-
ject is not conclusive that no action at law will lie.
We have said, that in some such cases recovery for ameliorations may
be had. But we would not be understood as saying that such recovery
could be had in every case ; for if the purchaser should choose to live upon
the land at such an uncertainty, and should make such amelioration, and
should himself disaffirm the contract and never offer to fulfil it, and cast
the improvements made upon the hands of his adversary, and thus attempt
to make him a debtor to that amount, against his consent, and without his
default, the right to recover the value of improvements, in such case, would
be very problematical. At all events, if in such case they could be recovered,
it could not be in an implied assumpsit ; for there would be no ground to
presume a promise or undertaking.
If we take this case on a still broader ground, we should be at a loss to
perceive the principle on which an action of assumpsit could be maintained.
lu the case of money or property paid to the vendor, for the land itself,
when he had only given his promise to convey, and should refuse to fulfil
it, as such promise is of no avail in law, the price may be recovered back,
on the principle that the consideration on which it was paid happens to
fail. But, with regard to ameliorations made under such circumstances,
they are not designed for the use of the seller. He is not instrumental in
causing them to be made, as he is in case of payment of the price. They
may or may not be made, at the election of the purchaser ; and in searching
the principles over for which an implied assumpsit will lie, we discover not
one which would support the action. If the seller can be at all made liable
for them, it must be on the principle of equity, that he ought not, when the
improvements are delivered over to him, to be enriched by another's loss.
It is true, an implied assumpsit will lie for work and labor done for the
defendant upon his request and assent, without any fixed price or any ex-
press promise to pay ; but the labor must be his, and the work be done for
him, and not for another, and the work afterwards happen to become his,
before the action can be sustained. We, therefore, conceive that whatever
remedy the appellee may have, it is not by an implied assumpsit for work
and labor, and that the court below consequently erred in instructing the
jury that the appellee was entitled to recover, if the facts should be as
he contended. If this question was not against the appellee, we should
not be disposed to disturb the verdict, because the court overruled the ap-
plication to instruct made by the appellant. The proposition made by him
involved in it the principle, that the writings controlled the contract and
excluded the parol evidence of a verbal sale. It is true that writings can-
VOL. II. — 19
290 ALBEA V. GKIFFIN. [CIIAP. IIL
not, iu general, be afi'ected or varied by parol proof ; but it is the effect of
the statutes against usury to alter this priuciple, aud to let iu the parol
proof, to show thereby that there was usury, although the writings negative
the fixct.
As to the question of a new trial, it is unnecessary to say anything, as it
necessarily results from the opinion already expressed, that the court below
ought not to have permitted the verdict to stand.
The judgment must be reversed with costs, and the verdict be set aside,
and the cause be remanded, for new proceedings to be there had, not in-
consistent with this opinion.
SAMUEL ALBEA v. WILLIAM GRIFFIN et al.
In the Supreme Court op North Carolina, June Term, 1838.
[Reported in 2 Devereux Sf Battle, Equity, 9.]
This was a bill for the specific execution of a contract for the sale of a
tract of land containing fifty acres. The defence was the act of 1819
avoiding parol contracts for the sale of land and slaves.
Upon the hearing the case was, that the ancestor of the defendants con-
tracted to convey the land to the plaintiff for fifty dollars, to be taken up
in goods at the store of the plaintiff ; that the goods were in part delivered;
that the land was surveyed, and the plaintiff put in possession of it by the
vendor; that he, the plaintiflT, built a house upon it; and that the vendor
gave him the assistance in raising it which is usual between neighbors in
the country. The vendor died without having executed a deed for the
land, and it descended to the defendants.
Caldwell for the plaintiff.
Burton for the defendant.
Gaston, J., after stating the facts as above, proceeded : It is objected
on tlie part of the defendants that by our act of 1819 all parol contracts
to convey land are void, and that no part performance can, in this State,
take a parol contract out of the operation of that statute. We admit this
objection to be well founded, and we hold as a consequence from it that, the
contract being void, not only its specific performance caiuiot be enforced,
but that no action will lie in law or equity for damages because of non-
performance. But we are nevertheless of opinion that the plaintiff has au
equity which entitles him to relief, and that parol evidence is admissible
for the purpose of showing that equity. The plaintiff's labor and money
have been expended on improving property which the ancestor of the!
defendants encouraged him to expect sliould become his own, and by the|
act of (iod, or by the caprice of the defendants, this expectation has beeni
frustrated. The consequence is a loss to him and a gain to them. It is
SECT. II.] BKIGHT V. BOYD. 291
against conscience that they should be enriched by gains thus acquired to
his injury. Jiaker and Wife v. Carson.^ If they repudiate the contract,
which they have a right to do, they must not take the improved property
from the plaintiff without compensation for the additional value whicli
these improvements have conferred upon the property.
The court therefore directs that it be referred to the clerk of this court,
to inquire and report what is the additional value conferred on the land in
question by the improvements of the plaintifl', and that he state an account
between the parties, charging the plaintiff with a fair rent since the death
of Andrew Griffin, and crediting him with what has been advanced towards
payment for said land, and with the amount of the additional value so
conferred upon it.
Per Ciiriam, Decree accordingly.
JOHN BRIGHT v. JOHN W. BOYD.
In the Circuit Court of the United States fob the First Circuit,
May Term, 1841.
[Reported in 1 Story, 478.]
Bill in equity. The defendant recovered judgment in a suit at law
against the plaintiff for possession of an estate which the plaintiff claimed
to own by intermediate conveyances under an administration sale. The
defect in the plaintiff's title was due to the failure of the administrator to
file a bond as required by law. The plaintiff, at the time of his purchase,
supposed that this bond had been filed, and he seeks to recover compensa-
tion for permanent improvements made upon and greatly enhancing the
value of the estate.'^
Story, J. The case, then, resolves itself^ into the mere consideration,
whether the plaintiff is entitled to any allowance for the improvements made
by him, or by those under whom he claims title, so far as those improvements
have been permanently beneficial to the defendant and have given an en-
hanced value to the estate. There is no doubt that the plaintiff in the
present bill is a bona fide purchaser for a valuable consideration, without
notice of any defect in his title. Indeed, he seems to have had every reason
to believe that it was a valid and perfect title ; and this also seems to have
been the predicament of all the persons who came in under the title by the
administration sale ; for it is not pretended that any one of them had actual
notice that no bond was given to the judge of probate previous to the sale.
And, indeed, all of them, including the purchaser at the sale, acted upon
1 1 Dev. & Bat. 381.
^ This statement of facts, containing all that is necessary to an understanding of the
case, has been substituted for the statement found in the report. — Ed.
* Only so much of the opinion is given as relates to this question. — Ed.
292 BRIGHT V. BOYD. [CIIAP. IIL
the entire coufidcuce that all the prerequisites necessary to give validity of
the sale had been strictly complied with. The original purchaser was, if at
all, aftected only by the constructive notice which put him upon inquiry as
to the focts necessary to perfect the right to sell. The statute of IMaine of
27th of June, 1820, ch. 47, commonly called the Betterment Act, will not
aid the plaintiff; for that statute applies only to cases where the tenant
has been in actual possession of the lands for six years or more before the
action brought by virtue of a possession and improvement, which term had
not elapsed when this writ of entry was brought. So that in fact the whole
reliance of the plaintiff must be upon the aid of a court of equity to decree
an allowance to him for the improvements made by him and those under
whom he claims, upon its own independent principles of general justice.
Two views are presented for consideration. First, that the defendant
has lain by and allowed the improvements to be made without giving any
notice to the plaintiff, or to those under whom he claims, of any defect in
their title; which of itself constitutes a just ground of relief. Secondly,
that if the defendant is not, by reason of his minority and residence in
another State at the time, affected by this equity, as a case of constructive
fraud or concealment of title ; yet that, as the improvements were made
bona fide and without notice of any defect of title, and have permanently
enhanced the value of the lands, to the extent of such enhanced value the
defendant is bound in conscience to make compensation to the plaintiff ex
ceqtio et bono.
In regard to the first point, it has been well remarked by Sir William
Grant (then Master of the Rolls) in Pilling v. Armitage,^ "That tlicre are
different positions in the books with regard to the sort of equity arising from
laying out money upon another's estate through inadvertence or mistake ;
that person seeing that, and not interfering to put the party upon his guard.
The case with reference to that proposition, as ordinarily stated, is that of
building upon another man's ground. That is a case which supposes a total
absence of title on the one side, implying, therefore, that the act must be
done of necessity under the influence of mistake ; and undoubtedly it may
be expected that the party should advertise the other that he is acting
under a mistake." The learned judge is clearly right in this view of the
doctrine ; and the duty of compensation in such cases, at least to the ex-
tent of the permanent increase of value, is founded upon the constructive
fraud, or gross negligence, or delusive confidence held out by the owner;
for under such circumstances the maxim applies : Qui facet, consentire vide-
tur ; Qui potest, et debet vetare, jubet, si non vetai.^ Whether this doctrine la
applical)le to minors who stand by and make no objection, and disclose no
adverse title, having a reasonable discretion from their age to understand
1 12 Ves. 84, 85.
2 See 1 Story, Eq. .Iiir. §§ 388, 389, 390, 391 ; Green v. Bi.Mlc, 8 Wlioat. 1, 77,
78; 1 Madd. Ch. 209, 210.
SECT. II.] BRIGHT V. BOYD. 293
and to act upon tlie subject; aud whether, if under guardianship, the
guardian would be bound to disclose the title of his ward ; and how far the
latter would be bound by the silence or negligence of his guardian ; and
whether there is any just distinction between minors living within the
State and minors living without the State, — these are questions of no incon-
siderable delicacy and importance, upon which I should not incline to pass
any absolute opinion in the jjreseut state of the cause, reserving them for
further consideration, when all the facts shall appear upon the report of
the Master. There are certainly cases in which infants themselves will bo
held responsible in courts of equity for their fraudulent concealments and
misrepresentations whereby other innocent persons are injured.-'
The other question, as to the right of the purchaser, bona fide and for a
valuable consideration, to compensation for permanent improvements made
upon the estate which have greatly enhanced its value, under a title which
turns out defective, he having no notice of the defect, is one upon which,
looking to the authorities, I should be inclined to pause. Upon the general
principles of courts of equity, acting ex a^qno et bono, I own that there does
not seem to me any just grou«d to doubt that compensation, under such
circumstances, ought to be allowed to the full amount of the enhanced
value, upon the maxim of the common law. Nemo deb^t locupleHirixx alte-
rius incommodo ; or, as it is still more exactly expressed in the Digest,
Jwn. natures eeqiium est, neminern cmn alterms detrimento et injuria fieri locu-
pletiorem} I am aware that the doctrine has not as yet been caiTied to
such an extent in our courts of equity. In cases where the true owner of
an estate, after a recovery thereof at law from a bona fide possessor for a
valuable consideration without notice, seeks an account in equity as plain-
tiff, against such possessor, for the rents and profits, it is the constant habit
of courts of equity to allow such possessor (as defendant) to deduct there-
from the full amount of all the meliorations and improvements which he
has beneficially made upon the estate ; and thus to recoup them from the
rents and profits.'* So, if the true owner of an estate holds only an equi-
table title thereto, and seeks the aid of a court of equity to enforce that
title, the court will administer that aid only upon the terms of making
compensation to such bona fide possessor for the amount of his meliorations
and improvements of the estate, beneficial to the true owner.* In each of
these cases the court acts upon an old and established maxim in its juris-
prudence, that he who seeks equity must do equity.^ But it has been sup-
1 See 1 Story, Eq. Jur. § 385; 1 Fonljl. Eq. Jur. B. I. cli. 3, § 4; Savage v. Foster,
9 Bred. 35.
2 Dig. lib. 50, tit. 17, 1. 206.
'^ 2 Story, E(i. Jur. §§ 799 a, 799 b, 1237, 1238, 1239; Green v. Biddle, 8 Wheat. 77,
78, 79, 80, 81.
* See also 2 Story, Eq. Jur. § 799 b. and note ; Id. §§ 1237, 1238.
6 Und.
71^ ^ ^^^^.
294 - BRIGHT V. BOYD. [CHAP. III.
posed that courts of equity do not, and ought not, to go further, and to
grant active relief in favor of sucli a bona Jide possessor making pertnaneiit
meliorations and improvements, by sustaining a bill brought by him tliere-
for against the true owner after he has recovered the premises at law. I
find that Mr. Ci)ancellor Walworth, in Putnam v. Ritchie,^ entertained this
opinion, admitting at the same time that he could find no case in England
or America where the point had been expressed or decided either way.
Now, if there be no authority against the doctrine, I confess that I should
be most reluctant to be the first judge to lead to such a decision. It ap-
pears to me, speaking with all deference to other opinions, that the denial
of all compensation to such a bona fide purchaser in such a case, where he
has manifestly added to the permanent value of an estate by his meliora-
tions and improvements, without the slightest suspicion of any infirmity in
his own title, is contrary to the first principles of equity. Take the case of
a vacant lot in a city, where a bona fide purchaser builds a house thereon,
enhancing the value of the estate to ten times the original value of the
land, under a title apparently peifect and complete ; is it reasonable or just
that in such a case the true owner shoiild recover and possess the whole
without any compensation whatever to the bona fide purchaser? To me it
seems manifestly unjust and inequitable thus to appropriate to one man
the property and money of another, who is in no default. The argument,
I am aware, is that the moment the house is built it belongs to the owner
of the land by mere operation of law ; and that he may certainly possess
and enjoy his own. But this is merely stating the technical rule of law, by
which the true owner seeks to hold what, in a just sense, he never had the
slightest title to, that is, the house. It is not answering the objection, but
merely and dryly stating that the law so holds. But then, admitting this
to be so, does it not furnish a strong ground why equity should interpose
and grant relief!
I have ventured to suggest that the claim of the bona fide purchaser un-
der such circumstances is founded in equitj'. I think it founded in the
highest equity ; and in this view of the matter I am supported by the posi-
tive dictates of the lioman law. The passage already cited shows it to be
founded in the clearest natural equity. Jure naturce cequum est. And the
Roman law treats the claim of the true owner, without making any com-
pensation under such circumstances, as a case of fraud or ill faith. Cerle,
say the Institutes, illiid constat ; si in possessione constituto o'dificatore, salt
Doming/ s petal domnm snam esse, me solvat pretium materia' et mercedes fabro-
rum ; posse eum pter exceptionem doli mali rejieUi ; ntique si borne fidei posses-
sor, qui redificavit. Nam scienti, alienum solum esse, potest ot>Jici culpa, quod
adificaverit temere in eo solo, quod intelligebat alienum esse.^ It is a gi'ave
1 6 Paige, 390, 403, 404, 405.
2 Just. Inst. lib. 2, tit. 1, §§ 30, 32; 2 Story Eq. Jur. § 790, b. ; Yiiiii. Com. a.l Inst
lib. 2, tit. 1, § .30, n. 3, 4, ].|.. 194, 195.
SECT. II.] BRIGHT V. BOYD. 205
mistake, sometimes made, that the Roman law merely confined its equity
or remedial justice on this subject to a mere reduction from the amount of
the rents and profits of the land.^ The general doctrine is fully expounded
and supported in the Digest, where it is applied, not to all expenditures
upon the estate, but to such expenditures only as have enhanced the value
of the estate {quatenus pretiosior res facta est),'^ and beyond what he has
been reimbursed by the rents and profits.^' The like principle has been
adopted into the law of the modern nations which have derived their juris-
prudence from the Roman law ; and it is especially recognized in France
and enforced by Pothier, with his accustomed strong sense of equity, and
general justice, and urgent reasoning.* Indeed, some jurists, and among
them Cujacius, insist, contrary to the Roman law, that even a mala fide
possessor ought to have an allowance of all expenses which have enhanced
the value of the estate, so far as the increased value exists.^
The law of Scotland has allowed the like recompense to bona fide posses-
sors making valuable and permanent improvements ; and some of the jurists
of that country have extended the benefit to mala fide possessors to a lim-
ited extent.6 Xhe law of Spain affords the like protection and recompense
to bonafi.de possessors, as founded m natural justice and equity.'' Grotius,
Puffendorf, and Rutherforth all affirm the same doctrine, as founded in the
truest principles ex a?quo el bono.^
There is another broad principle of the Roman law which is applicable
to the present case. It is, that where a bona fide possessor or purchaser of
real estate pays money to discharge any existing incumbrance or charge
upon the estate, having no notice of any infirmity in his title, he is entitled
to be repaid the amount of such payment by the true owner, seeking to
recover the estate from him.9 Now, m the present case, it cannot be over-
looked that the lands of the testator now in controversy, were sold for the
payment of his just debts under the authority of law, although the author-
ity was not regularly executed by the administrator in his mode of sale, by
a non-compliance with one of the prerequisites. It was not, therefore, in a
1 See Green v. Biddle, 8 Wheat. 79, 80.
2 Dig. lib. 20, tit. 1, I. 29, § 2; Dig. lib. 6, tit. 1, 1. 65.; Id. 1. 38; Pothier Pand. Ub.
6, tit. 1, n. 43, 44, 45, 46,48.
8 Dig. lib. 6, tit. 1, 1. 48.
* Pothier De la Propriete, n. 343 to n. 353; Code Civil of France, art. 552, 555.
* Pothier De la Propriete, n. 350; Vinn. ad Inst. lib. 2, tit. 1, 1. 30, n. 4, p. 195.
■^ Bell Comm. on Law of Scotland, p. 139, § 538; Ersk. Inst. b. 3, tit. 1, § 11; 1 Stair
Inst. b. 1, tit. 8, § 6.
' 1 Mor. & Carl. Partid. b. 3, tit. 28. 1. 41, pp. 357, 358; Asa & Manuel, Inst, of Laws
of Spain, 102.
8 Grotius, b. 2, ch. 10. §§ 1 2, 3; Puffend. Law of Nat. & Nat. b. 4, ch. 7, § 61;
Rutherf. Inst. b. 1. ch. 9, § 4, p. 7.
9 Dig. lib. 6, tit. 1, 1. 65; Pothier Pand. lib. 6, tit. 1, n. 43; Pothier De la Propri-
ete. n. 343.
296 BRIGHT V. BOYD. [CHAP. IIL
just sense, a tortious sale; aud the proceeds thereof, paid by the purchuber,
have gone to discharge the debts of the testator, and so far tlie lands in the
liands of the defendant (Boyd) have been relieved from a charge to which
they were liable by law. So that he is now enjoying the lands free from a
charge which, in conscience and equity, he and he only, aud not the pur-
chaser, ought to bear. To the extent of the charge from which he has been
thus relieved by the purchaser, it seems to me that the plaintifl", claiming
under the purchaser, is entitled to reimbursement in order to avoid a cir-
cuity of action to get back the money from the administrator and thus sub-
ject the lands to a new sale, or, at least, in his favor, in equity to the old
charge. I confess myself to be unwilling to resort to such a circuity in
order to do justice where, upon the principles of equity, the merits of the
case can be reached by affecting the lands directly with a charge to which
they are ex cequo et bono, in the hands of the present defendant, clearly
liable.
These considerations have been suggested because they greatly weigh in
my own mind after repeated deliberations on the subject. They, however,
will remain open for consideration upon the report of the Master, and do
not positively require to be decided, until all the equities between the par-
ties are brought by his report fully before the court. At present it is or-
dered to be referred to the Master to take an account of the enhanced value
of the premises by the meliorations and improvements of the plaintiff, aud
those under whom he claims, after deducting all the rents and profits re-
ceived by the plaintiff aud those under whom he claims ; and all other mat-
ters will be reserved for the consideration of the court upon the comiug in
of his report.^
^ Upon the coming in of the Master's report, the following opinion was delivered by
Mr. Justice Story: —
Story, -J. I have reflected a good deal upon the present subject ; and the views ex-
pressed by me at the former hearing ol this case, reported in 1 Storj-, 478, et scq., remain
unchanged ; or rather, to express myself more accurately, have been thereby stiengthened
and confirmed. My judgment is that the plaintiff is entitled to the full value of all the
improvements and meliorations which he has made upon the estate, to the extent of the
additional value which they have conferred upon the laud. It appears by the Master's
re|X)rt that the present value of the land with the improvements and meliorations is
$1000 ; and that the present value of the land without these improvements and meliora-
tions is but S25 ; so that in fact the value of the land is increased thereby $975. This
latter sum, in my judgment, the plaintiff is entitled to, as a lien and charge on the land
in its present condition. I wish, in coming to this conclusion, to be distinctly under-
stood as affirming and maintaining the broad doctrine, as a doctrine of equity, that, so
far as an innocent purchaser for a valuable consideration, without notice of any infirmity
in his title, has, by liis improvements and meliorations, added to the permanent value of
tlie estate, he is entitled to a full rt-nuuKMation, and tliat sucdi increase of value is a lien
and charge on the estate, which tiie absolute owner is bound to discharge before he is to
be restored to his original rights in the land. This is the clear result of the Homan law;
and it has the most persuasive equity, and, I may add, common sense andcommoti justice,
for its foundation. Tlie Betterment Acts (as they are coinmoidy called) of the States of
MATHEWS V. DAVIS
MATHEWS V. DAVIS
In the Supreme Court op Tennessee, December Term, 184:5.
[Reported hi 6 Humphrey, 824.]
This is an action of assumpsit which was brought by Davis against
Mathews, in the Circuit Court of Robertson county.
The plaintiff dechired for work and labor done and materials furnished,
and proved on the trial, at the term, 1845, Martin, J., presiding, that
by verbal contract he had purchased of defendant one hundred acres of
land, and had been placed in possession of the same ; that with the knowl-
edge and approbation of defendant he built a dwelling-house, smoke-house,
kitchen, and made other valuable improvements on the land ; that defendant
witnessed the progress of those improvements from time to time, and ac-
quiesced in the acts of plaintiff as rightful. When an attempt was made
to run out the land, the plaintiff and defendant disagreed as to the lines,
and defendant repudiated the contract and refused to convey.
The judge charged the jury that where one entered into possession of
land under a parol agreement of purchase and makes improvements thereon,
with the knowledge and approbation of the owner, and the owner refuses
afterwards to make a conveyance in conformity with the parol contract, an
action of assumpsit would lie against the owner of the land, for the value
of the improvements thus made, and tjie criterion of damages would be not
tJTfiinnrgased_val^^ the owner, but the_yalue of thejmprove-
ments put upon it, deducting from the value of the improvements the value
oTthe use^ the land ^M^jinprovements' during the time the plaintUT
occupied the_same.
The jury found a verdict for the plaintiff A motion for a new trial being
maHe^andToverruled, anTjudgment rendered, the defendant appealed.
Boyd, for plaintiff in error.
One who enters upon a tract of land under a fjarol contract of purchase
cannot sustain an action of assumpsit for the value of the improvements he
may make upon it, because he makes the improvements for himself, not the
owner of the land, and there is no contract for payment. Nelson v. Allen
& Harris.^
The improvements as soon as made vest in the owner of the land, and a
Massachusetts and Maine, and of some other States, are founded upon the like equity,
and were manifestly intended to support it, even in suits at law for the recovery of the
estate.
The report will, therefore, be accepted and allowed ; and a decree made in conformity
to the present o{iinion. — 2 Story, 608. [Ed.]
1 1 Yerg. 380; 10 Yerg. 477.
It, I, A,
298 MATHEWS V. DAVIS. [CHAP. IIL
court of equity can make him pay their value if he has been guilty of fraud
or acquiescence. Herring & Bird v. Pollard; 1 Story, 478, 495.^
If entitled to recover at all, he should only be allowed the value of his
improvements, so far as they augmented the property in value.^
Lowe, for defendant in error.
1. He contended that an action of assumpsit was an equitable action for
the recovery of what ex cequo et bono was due : Bacon tit. Assumpsit ; Moses
V. McFarlane ; ' and that though there were no express promise to pay
V L.^/'^v'A. . <j ^^^ value of the improvements, the law would imply a promise. The
defendant in error went into possession by consent of plaintiff in error.
He made the improvements with his approbation, and it was a fraud to
attempt to get the value of defendant's labor without compensation. The
true criterion of damages was the value of defendant's labor. The value
of his labor will be the extent of his loss, and that loss is a consideration
sutficient to support a contract or imply a promise as well as a gain to the
plaintiff in error.* If, however, he is not entitled to the value of what he
has lost, he is entitled to what the other party has gained. " No one shall
gain b}- another's loss." ^ The defendant in error is entitled to recover to
that extent by the first principles of natural equity.
2. He contended that a court of law was the proper forum for the re-
covery of damages. Whether the criterion of damages be the loss of the
defendant in error, or the gain of plaintiflP in en-or, the value of the erections
or the value of the labor, a jury is more competent to judge of and deter-
mine the questions involved than a chancellor. It is the peculiar well-
ascertained and most appropriate province of a jury to fix the value of
labor and of agricultural erections and improvements. " They are supposed
to be peculiarly well qualified by their experience of the conduct, affairs,
and dealings of mankind and the manners and customs of society," for the
determination of such questions of fact.® " In this respect the law confides
implicitly in their knowledge, experience, and discretion."
He contended, that if the defendant in error had any claim against the
plaintiff in error, arising out of the subject-matter of this suit, it was a
matter unfit for equitable jurisdiction and was only the proper subject for
the determination of a jury.
He, therefore, claimed an affirmance of the judgment of the Circuit
Court.
Green, J., delivered the opinion of the court.
This is an action of assumpsit for work and labor done, and for materials
furnished.
On the trial, it appeared tliat Davis made a verbal contract with Mathews
for the purchase of one hundred acres of land, and that he went on tlio
land and put up some buildings for himself ; but that -when the parties
» 4 Hunipli. 2 2 Kent, 336. » 3 Burrow. ♦ 3 Humph.
6 Karnes' Principles of Equity. ^ 1 Starkie.
If-
L
^ A
n
SECT. II.] MATHEWS V. DAVIS. 299
went to run out the land they disagreed as to the manner it was to be run
out, and the contract was never reduced to writing. The plaintiff raised
an account against the defendant for work done and materials furnished
in the erection of these houses, and proved that the prices charged were
reasonable.
The court charged, that a party making improvements on land, under a
verbal contract for the purchase of it, was entitled to recover in this form
of action the value of such improvements.
This is the first case that has come before us, where an attempt has been
made to recover, in an action at law, for improvements made on land held
by a contract void by the statute of frauds. Chancellor Walworth, of New
York, denied relief in such a case, where the party sought it in equity.
Putnam v. Richie.^ But Mr. Justice Story entertained a bill for improve-
ments, in the case of Bright v. Boyd.^ He said, " The denial of all com-
pensation to such a bona fide purchaser, in such a case, where he has \o^
manifestly added to the permanent value of an estate by his meliorations
and improvements, is contrary to the first principles of equity."
The case of Bright v. Boyd is the first, so far as we know, in which com-
pensation has ever been given to a party seeking to make the true owner
of the land liable. That case was followed by this court, in Herring &l Bird
V. Pollard's executors ;^ and relief was given for improvements that may
have enhanced the value of the land, or, in the language of Judge Story,
such meliorations as have added to the permanent value of the estate.
This is as far as any court has ever gone ; and, we think, as far as any
principle of equity will justify. When a contract for land is entered into,
the parties know it will not be binding unless it is made in writing. Each
party is equally culpable for failing to make the contract in such manner
as that it will be obligatory. If the party agreeing to purchase perform
labor, and make improvements, which will benefit the owner of the land,
we RaveTaid," he has an equitable right to compensation. But if his work
"and labor, and materials, are of a character that will not benefit the owner
of the estate, upon what principle_of equity can it be assumed that he ought
to~be paid ] It matters not how much labor he has employed, nor what
amount he may have expended for materials, ifthe estate is not benefited ,
he has no claim to compensation from the owner of the land. To allow
him to recover, in such a case, would be to reward him for volunteering his
labor on another man's land, and to punish the owner of the soil for per-
mitting him to do it. This cannot be done. His honor, the judge of the '/< / , ^ -
Circuit Court, erred, therefore, when he told the jury that the plaintiff was ^^^ /
entitled to the value of his improvements, whether they enhanced the valuq,
of the estate or not. But this only demonstrates the impracticability of
such investigations in a court of law. A jury cannot judge of ameliorations,
and adjust the matter between the parties. Besides, if a recovery be had
1 6 Paige, 390. 2 j story, 478. ^ 4 Hum})li. 362.
300 WILLIAMS V. GIBBES d al [CHAP. IIL
iu a court of law at all. it must be had for the work, labor, and materials,
so much as they were worth, as his honor told the jury. But we have seen
this is not the criterion of compensation, and, therefore, it is unfit fur a
court of law, and exclusively a matter to be adjusted in equity.
Reverse the judgment.
JOHX S. WILLIAMS, Administrator, etc.. Appellant, v. ROBERT
M. GIBBES AND Another, Exfx'utors, etc. ROBERT M. GIBBES
AND Another, Executors, etc., Appellants, v. JOHN S. WILLIAMS,
Administrator, etc.
In the Supreme Court of the LTnited States, December Term, 1857.
{Reported in 20 Howard, 535.)
These were cross appeals from the Circuit Court of the United States
for the districtof .Maryland. In the report, the first case only will he
mentioned ; namely, that of Williams against Oliver's executors.
The case was formerly before the court, and is reported in 17 How. 239.
The facts are stated in the opinion of the court.
It was argued by Mr. Davis, Mr. Dulany, and Wx. Martin for Williams,
and by Mr. lieverdy Johnson and Mr. Campbell for Oliver's executors.
The decree was for $9,086.33 in money, and $19,215.95 in stock,
instead of $22,866.94 in money, and $32,847.77 in stock, as claimed by
the appellant.
Mr. Justice Nelson delivered the opinion of the court.
This is an appeal from a decree of the Circuit Court of the United
States for the district of Maryland.
A bill was filed in the court below by Williams, the present appellant,
to recover of the defendants the proceeds of the share of complainant's
intestate m what is known as the Baltimore Company, which had a claimT'
against the Mexican government, that was awarded to it under the treaty
of 1839. Th^ proceeds of the share amounted to the sum of $41,306.41.
The history of the litigation to which the award under the treaty gave
rise, in the distribution of the fund among the claimants or the assignees
composing the Baltimore Company, will be found in the report of four of
the cases which have heretofore come before this court. ^ That of Williams
V. Gibbes, in 17 How., contains the report of tlie present case when for-
merly here. This court then decided that the claim of the executors of
Oliver to the share of Williams was not well founded ; that the interest of
Williams in the same had not been legally divested during his lifetime ;
and that TiTs~ legal representative then before the court was entitled to the
.. ^^^ ____....__^ — ^- ~ — .
1 11 How. 529 ; 12 How. Ill ; 14 How. GIO ; 17 How. 233, 239.
SECT. II.]
WILLIAMS V. GIBBES ct al.
301
proceeds. The decree of the court below was reversed, and the cause
remanded for further proceedings, in conformity with the opinion of the
court. Upon the cause coming down before that court on the mandate,
the defeiidants^3he^ecutqrs of Oliver, set up several charges againstjtho
fund, which it was claimed should be received and allojs^ed in abatement of
the amount.
1. For certain costs and expenses to which they had been subjected
in resisting suits instituted against it by third parties. The history of
these suits will be found in the cases already referred to in this court, and
need not be stated at large.
2. For services and expenses of Oliver in his lifetime, in the prosecution
of the claim of the Baltimore Company, as its attorney and agent before
the government of Mexico, from the year 1825 down to the time of his
death in 1834.
The court below allowed to the executors^, the costsand expenses to
which they had_been subiectedLJn_de£eiiding-the-suitajiieMiojj^l^ also
thirty-five per cent of the_fundjn_£^ipst,ion for the^rvices of Oliver.
The case is one in many of its features novel and peculiar.
James AVilliams, the intestate, and owner of the share in the Baltimore
Company, became insolvent in 1819, and took the benefit of the insolvent
laws of Maryland ; and in 1825 the insolvent trustee of his estate sold and
assigned to Eobert OlTveFthe share in question jn_this_company ; and from
thence~down to'the yearT849, Oliver in his lifetime, and his executors
afterwards, did not doubt but that a perfect title to the share had passed
by virtue of this assignment. In that year the Court of Appeals of Maiy-
land decided, in a case between the executors and an insolvent trustee of
Williams, that no title passed to Oliver by this assignment ; and as a legal
consequence it wairTreIdnby~this~court, in 17 How., that the interest re-
mained in Williams at his death, and of course^passed to his legal repre-
sentative, the complainant.
All the services and expenses, therefore, of Oliver, in his lifetime, in the
prosecution of the claims of the Baltimore Company against the govern-
ment of Mexico, and of the litigation since encountered by his executors in
respect to the share, have resulted in securing the proceeds of the same to
the estate of Williams, the original shareholder. Williams in his lifetime,
and his legal representatives since, down till the fund was in court await-
ing distribution, had taken no steps for its recovery, nor had they been
subjected to any expense. The whole of the services had been rendered,
and expenses borne, by Oliver and his executors ; and jthe question is
whether, upon any established principles of law or equity, the court below
were right in taking into the account, in the settlement between the
parties, these services and expenses. We are of opinion they werg.
By the judgmenFof the Court of Appeals of Maryland, Oliver was at no
time the true owner of this share ; as, notwithstanding the assignment by
^/
X
(^
lA^^ "T^
302
"WILLIAMS V. GIBBES d al.
[chap, iil
^KU.
^^Cw
^
the insolvent trustee, it still remained in Williams. Oliver thereby be-
came trustee instead of owner of the share and of the proceeds, as did also
his executors ; and they must be regarded as holding this relation to the
(^ L.*^^,M, /u, ^T^fund from their first connection with it. In that character the executors
have been made accountable to the estate of Williams, and have been
'^^^^^^ '7 tl V^w responsible since the fund came into their possession for all proper care
Zvz,.-zl<i^.^^w..^^M^.and management of the same. In defending these proceeds, therefore,
a"-ainst suits instituted by third parties to recover them out of the liands
of the executors, they have done no more nor less than they were bound to
do as the proper guardians of the fund, if they had known at the time
the relation in which they stood to it, and that they were defending it for
the benefit of the estate of Williams, and not for that of Oliver. The ser-
vices rendered and expenses borne could not_have been dispensed with,
consistent witirtbeir dutiesas trustees.
"But it is said thaTThese suits were defended by the executors while
claiming the fund in right of their testator, and hence for the supposed
benefit of his estate ; that the defence was not made in their character of
trustees, and cannot, therefore, be regarded as a ground for charging the
estate of Williams with the costs of the litigation.
The answer to this view is, that although in point of fact the defence
was made under the supposition that the fund belonged to the estate of
Oliver, yet in judgment of law it was made by them as trustees and not
owners, as subsequently judicially ascertained ; and as the costs and ex-
penses were properly incurred in the protection and preservation of the
fund, it is but just and equitable they should be made a charge upon it.
The misapprehension as to the right cannot change the beneficial char-
acter of the expense, when indispensable to its security.
The duty of a trustee, whether of real or personal estate, to defend__the
ti tie, at law or in equity, in case a suit is brought agauist it, is unqucs-
iiaiust
tToued^ and the expenses are properly chargeable inJns_accoun
the^estate.^
Another principle which we think applicable to this case is to be found
in a class of cases where a bona fide purchaser for a valuable consideration,
without notice, has enhanced the value of the property by permanent
expenditures, and has been subsequently evicted by the true owner on
account of some latent infirmity in the title. I^is well settled, if the true.
owner is obliged to come into a court of equity to obtain rclief_agam^l-^6
purchaser, the court will first requirereasonable compensation for such^
expenditures to be made, upon the princi]jlcthaHie who seeks equity jaust^
first do equity.'-*
"^ kindred principle is also found in a class of cases where there has
been a b<jnafide adverse possession of the property tacitly acquiesced in by
1 2 Story, Eq. Jur. §1275.
2 2 Story, E-i. Jur. §§ 799, 7996 ; 6 Paige, 403, 404 ; 1 Story, 494, 495.
X
SECT. II.] WILLIAMS V. GIBBES et al. 303
the true owner. The practice of a court of equity in such cases does not
permit an account of rents and profits to be carried back beyond the fihng
of the bill.^ This principle is apphcable where the person in possession is
a bona fide purchaser, and there has been some degree of remissness or
negligence or inattention on the part of the true owner in the assertion of
his rights.
Courts of equity, it would seem, do not grant active relief in favor of a
bona fide purchaser making permanent meliorations and imju-ovements by
sustaining a bill brought by him against the true owner, after he has suc-
ceeded in recovering the property at law.^ The Civil Law in this respect
is more liberal, and provides a remedy in behalf of the purchaser, even
beyond an abatement of the rents and profits for such expenditures as have
enhanced the value of the estate (cases above), and indeed generally
applies the principle in favor of any bona fide possessor of property who has
m good ftiith expended his money for its preservation or amelioration;
otherwise, it is said, the true owner appropriates unjustly the property of
another to himself.^
Now in the case before us, Oliver in 1825 purchased this share in the
Baltimore Company for the consideration of $2000, its full value at the
time. The purchase was made from the insolvent trustee of Williams,
who all parties concerned believed had the power to sell and transfer the
title. Williams, down till his death in 1836, set up no claim to it; nor
did his representative after his death, till August, 1852, when this bill was
filed. Oliver and his executors had been in the undisturbed possession, so
far as respects any claim under the present right, for the period of twenty-
seven years. And although it may be said in excuse for any remissness, and
by way of avoiding the consequences of delay, that Williams and those repre-
senting him had no knowledge of the defect in the title till the decision of
the Court of Appeals of Maryland, it may be equally said, on the other hand,
that Oliver and his executors were alike ignorant of it, and had in good
faith expended their time and money in recovering the claim against the I
government of Mexico, and afterwards in defending it against a long and I
expensive litigation.
It is difficultjo present a stronger case for the protection of a bona jide
purchaser from loss, whojias expended time and money in enhancing the
value of the subject of the purchase, or a case in which the principle more
justly applies~that where th^rue owner seeks the aid of~a court of equity
t_o^ enforce such a title, the court wilLadmjnister that aid only when
making compensationjtojthe purchaser. We are therefoi-e of opinion that
the court below was right in allowing in the account the costs and fees
paid to counsel by the executors in the defence of the suits.
1 8 Wheat. 78 ; 27 E. L. & Eq. 212 ; 7 Ves. 541 ; 1 Edw. Ch. 579.
2 6 Paige, 390, 403, 404, 405 ; 1 Story, 495 ; 8 Wheat. 81, 82.
3 Touillier, 3 B., tit. 4, c. 1, ss, 19, 20.
^
304 WILLIAMS V. GIBBES ct ttl. [CHAP. IIL
lu respect to the thirty-five per ceut allowed for the prosecution of the
claim against the government of Mexico, it stands in principle upon the
same footing as other services and expenses incurred in protecting and
preserving the fund after possession was obtained. The amount of com-
pensation depends upon the proofs in the case as to the value of the
service, and which must in a good degree be governed by the usual and
customary charges allowed for similar services and expenses. As this
claim was prosecuted with others by Oliver when he supposed and believed
that he was the owner, and that he was acting on his own behalf and
not as trustee for Williams, the rate of compensation must rest upon all
the facts and circumstances attending the service ; there could have been
no agreement as to the compensation. And for the same reason it cannot
be expected that an account of the services and expenses was kept, so as to
enable the court to arrive with exactness at the proper sum to be allowed,
as might have been required if Oliver had been chargeable with notice of
the trust. The proofs show that Oliver appointed agents to represent him
at the government of Mexico as early as March, 1825, and that these
agencies were continued from thence down till his death in 1834 ; and
that during all this time he kept up an active correspondence with them
and others, and with our ministers at Mexico, and with his own govern-
ment, on the subject. The justice of these claims had been acknowledged
by the government of Mexico as early as 1823-24, but no provision was
made for their payment. They were regarded as of very little value,
from the hopelessness of their recovery ; and it is perhaps not too nuich
to say, upon the evidence, that in the absence of the vigorous and efficient
prosecution of them by Oliver, they would have been worthless. In
the result, for the share in question, which was sold in 1825 for $2000,
there was realized from the government of Mexico, under the treaty of
1839, the sum of $41,30G.41. The estate of Williams has never expended
a dollar towards recovering it, nor has Oliver ever received any compensa-
tion for his services. The amount may seem large, but we cannot say the
court below was not warranted in allowing it, upon the proofs in the case
of the great service rendered, and of the customary charges in similar
cases. ^
Upon the whole, we are satisfied the decree of the court below was
right, and ought to be affirmed.
Mr. Justice Grier dissented.
1 A portion of the oiiinioii relatiug to questions of practice has been omitted. — Ed.
SECT. II.] VAUGHAN V. CKAVENS d al. 305
JAMES VAUGHAN v. EGBERT CRAVENS et al
In the Supreme Court of Tennksseb, September Term, 1858.
[Reported in 1 Head, 108.]
This cause was tried in the Chancery Court at Harrison. A decree was
rendered at the July term, 1858, for the defendants. Van Dyke, Chan-
cellor, presiding. The complainant appealed.
Hopkins for the complainant.
Burch for the defendants.
Wright, J,, delivered the opinion of the court.
The bill in this case is filed to recover from the defendants compensa-
tion for certain improvements, which the ^onipJainaiit_allcges^ he made upon
their lands under a lease which was void, because not in writing. .The
Chancellor dismissed his bill, and he has appealed to this court. The lands
were used for mining purposes, in getting coal from certain ore beds.
The defendant, Cravens, owned one-sixteenth of the lands, as a tenant in
common with the other defendants, who owned the residue. And it is
very clear, from this record, that whatever contract complainant had was
with Cravens, and did not bind his co-tenants. It is denied in the answers
that there was any lease. And Cravens, the only defendant who knows
anything on the subject, says the contract was at first only to make a
certain road, for which complainant at once was paid in coal then dug by
defendant, and received by complainant; and that complainant was allowed
afterwards only to dig out of a certain pit, which defendant had opened,
under which he, without authority and in defiance of defendant's wishes,
went on and done the work at another place, for which he now asks
compensation.
It is not very clear what the contract was, and the focts as to this
matter we incline to think are with the defendants.
B ut^be alHhese things as they may, the weight of the proof is, that the
improvements made by complainant have not enhanced the value of the
land ; while on the other hand, he committed great waste in cutting tim.-
berTetc] Upon the entire record, complainant is entitled to no relief, and
le Chancellor's decree.
VOL. II. — 20
h
306 RAINER V. HUDDLESTON. [CHAP. HI.
P. M. RAINER V. P. M. HUDDLESTOX.
In the Supreme Court of Tennessee, April 8, 1871,
[Reported in 4 Heiskell, 223.]
Appeal from the decree of the Chancery Court at Purdy. Jas, W.
DoHERTY, Ch., October Term, 1868.
McKinney for complainant.
J. F. Ihiddleston for defendant.
Nicholson, C. J., delivered the opinion of the court.
The question in this case arises upon the following facts, as they appear
in the bill, answer, and proof : —
In November, 18G0, Iluddleston agreed to sell to Rainer a tract of land,
in McNairy County, containing two hundred and ninety-seven acres, for
$1500; of which $500 was to be paid when possession was given, on the
25th of December, 18G0, and the balance in one and two years. It was a
^^^^^"^_^^ y parol contract, but bond for title was to be executed upon the payment^
,' J +>i(a iftfiOO f^fiinpr tnnlf iinssfissi nn rm thfi 2.'5fh of Dpr.fimbfir. IHfiO but
^^'I-^C«I^ S- z^' X*t<»»<«^ .
the $500. Rainer took possession on the 25th of December, 18G0, but
failed to pay^ the "faOO! iiTApril, 1861, Rainer proposed to Huddleston
TlTat the contract should^ be reduced to writing ; to this, Huddleston re-
plied, that he did not consider it a trade unless he had paid the $500
down, which was to have been paid on the 25th December, 1860. Huddle-
^ ston further said to Rainer, that he had told him, when they traded, that
^^^'*^**-^-*^-^''^^***^«^ he thought he could not pay the $500, he had better not strike a lick
r ***-^?5-*-*-rr-> A-^^
on the place towards improving it, for he would not pay him five cents for
improving the place ; but as he had moved on the place and made some
improvements, if he would pay him $1,000 by the next Christmas, with
interest for twelve months, he would still give him a chance for the place,
and would then give him a bond for title when the remaining $500 was
paid. Rainer continued in possession until late in the year 1863, when he
abandoned the place and moved to Illinois, where he remained for about
three years. Whilst he was in possession, he built several houses, cleared
some land, and~i'enced the place. After Kamer moved away, Huddleston
L^ h-u^ ^^^ possession of the place and was holding it by his tenant, when Rainef
returned and demanded to be let into possession ; and upon failing to get
^^■^^^<-'^^'*^^oHsession, he filed bis^ bill for compensation for "the^ permanent improve-
•^ i^twi <^/^ .A^.u^'.^nf^^^^^ ^^^^ ^y ^^™* There is no allegation in his bill that he had paid
any portion of the purchase-money, nor does he deny but that the dcfeud-
ant had goo^3""fitle to the land, and was ready to comply with his portion
of the contract.
These facts raise the question, whether a vendee of land by parol, who
SECT. II.] RAINER V. HUDDLESTON. 307
has failed to comply with his contract of pui-chase, aud has paid no pait of
the consideration, but has continued in possession and made permanent
improvements, with notice that the vendor was opposed to the improve-
ments being made, can hold the vendor, who has taken possession, respon-
sible for the enhancement of the value of the land l)y reason of the
improvements 1
By the English law and tlie common law of this State, the owner recovers ) /> -,
his land by ejectment, without being subjected to the condition of paying (
for the improvements which may have been made npon the land. The('^'^ /i-c-<;-«^-.--va-^ ,^
improvements are considered as annexed to the freehold, and pass with the/^^^'**^-'— ^^ /c9s^/^/-— •
recovery. Every possessor makes such improvements at his peril.^ \*-c^-^u.^l.^^ / '^-/•^'^fZXZ.
A different rule, however, has obtained in courts of chancery. It is well i
sftttled_ that when a hona_Jide possessor of land has made improvements 1 I ^ao<^tr ^^.c^ ^
thereon, and the owner comes into a court of equity for an account of the / 1 if i • ,
rents and profits, the defendant will be allowed to deduct therefrom the I I — — ^y"
full amount of all ameliorations and improvements which he has beneficially / / f^'^'^'^^'J
made upon^he estate." ~~ '
Since the case of Herring & Bird v. Pollard,* courts of chancery in our
State have entertained bills, and given relief to parol vendees of land who
have been bona fide in possession and have made improvements that added
permanent value to an estate. In laying down this rule, in the case of
Herring ik Bird v. Pollard, our court followed and adopted the reasoning of
Justice Story, in the case of Bright v. Boyd,^ in which Judge Story said :
" It appears to me, speaking with deference to other opinions, that the
denial of compensation to such a bona fide purchaser, in such a case, where
he has manifestly added to the permanent value of an estate by his amelio-
rations and improvements, is contrary to the first principles of equity. To
me it seems manifestly unjust and inequitable to appropriate to one man
the property and money of another who is in no default."
In the case of Matthews v. Davis, ^ Judge Greene said, that the case of
Bright V. Boyd was the first in which compensation had ever been given to
a party seeking to make the true owner of the land liable. He adds : " This
is as far as any court has ever gone ; and, we think, as far as any principle
of equity will justify."
In the case of Rhea v. Allison,^ Judge Wright states the rule with more
fulness and precision than it was stated in either of the other cases referred
to. He says : " It is settled, in this State, that where a man is put in
possession of land by the owner, upon an invalid or verbal sale, which the
owner fails or refuses to complete, and in the expectation of tlie perform-
ance of the contract makes improvements, a court of equity will directly
and actively, by a bill filed by him against the owner for an account, make
him compensation to the full value of all his improvements, to the extent
1 2 Kent, 335. 2 2 Story, Eq. Jur. § 799. 3 4 Humph. 362.
* 1 Story, 478. 5 q Hiuni)li. 324. c 3 Huad, 176.
308 RAINER V. HUDDLESTON. [CHAP. m.
they have euhauceJ the value of the laud, deductiug rents aud profits, and
will treat the laud as subject to a lien therefor."
It follows from the several authorities referred to, that complainant, who
comes into a court of equity aud claims compensation for improvements
made on the land of another, will be repelled, unless he shows th^t he waa
a boiia fide possessor, holding under an invalid or verbal sale, and honestly
believing that he has, or will have, a valid title, and intending honestly to
I .-jy^ / ' consummate his purchase by the payment of the purchase-money, and while
^ "'"^ g ijpitjiucr makes improvements which add to the permanent value of the
land, but fails to consummate his purchase, without fault on his part, and
on account of the default of the vendorT Before he can successfully invoke
the aid of a chancellor, it is incumbent on him to show that he has been in
no default in not executing his contract, but that he has been prevented
from so doing by the failure or refusal of the owner of the land to complete
the sale.
It is manifest that in the case at bar the complainant has failed to bring
himself within the rule laid down. By the terms of his contract he was to
have paid $500 when he got possession ; in tins he YioIated_Jus^^ontractr
After being in possession a few months, he was distinctly notified by the
owner of the land, that by his failure to pay the cash payment he consid-
ered the trade terminated ; but he consented to extend the time to the end
of the year, at which time complainant might pay $1,000, and have the
benefit of the trade. He continued in possession, but failed to make the
payment at the end of the year. After his second default he still continued
in possession for nearly two years, the owner of the land having no remedy
against him, on account of the suspension of courts by the prevalence of
the war. "Whilst the complainant was so in default, and with a full knowl-
edge that the defendant considered the trade at an end, and that he desired
no new improvements to be made on his land, the complainant removed the
old improvements on the place, and replaced them by others ; and then at
the end of nearly three years, as he alleges in his bill, he was forced to
leave the premises on account of the condition of the countr}-, resulting
from the late war ; and after remaining in another State until Februarj-,
1866, he returned and claimed compensation for his improvements. _ Dur-
ing all this time the defendant was in no default, but was ready and willing
to~cornplete_tbe trade according to his contract. Under such circumstances^
even^Tlhe improvements made had been shown clearly to have enhanced
The^luc of the land, about which the proof is conflicting and imsatisfac-
Jory^_vi-e hold that the complainant has wholly failed to entitle himself_to
the relief prayed for.
The decree below is reversed, and the bill dismissed with costs.
SECT. II.] MASSON V. SWAN. 309
PAUL MASSON v. H. W. SWAN, Adm'x, et at.
In the Supreme Court of Tennessee, October 21, 1871.
[Reported in 6 Heiskell, 450.]
Appeal from the decree of the Chancery Court, July term, 1861. Seth
J. W. Luckey, Ch.
Jas. R. Cocke for complainant.
George Andrews for the heirs.
Nicholson, C. J., delivered the opinion of the court.
In May, 1857, Wm. Swan agreed to seU jto^Paul Masson a vacant lot
in Knoxville, for $600. The agreement was in parol, no note given for the
purchase-money, and no tune fixed' for its payment, and no written mem-
orandum of the terms of sale. Massoii took possession of the lot, and pro-
ceeded to make permanent improvements upon it by erecting buildings
thereon foTa residence! From the 25th of December, 1857, to the 25th of
December, 1860, he occupied the premises as a residence. No^yment on
the purchase-money was made, and no application to Swan for a title.
tSwan died m March^l859. '
The bill was filed May 2, 1860, making no tender of purchase-money,
' ,i^C^ .4-^
,, -2.' i- ^^z-c^ y^n^Ac
and asking for no execution of the contract by title 'from the heirs of Swan, " /^ e^-^-^^
but assuming that the contract was void because not reduced to writing,/? — -^<W ^-u,^/**^
and claiming compensation for the permanent improvements to the amount^^^:^^ r^ ^^w'^.,^
of the enhanced value of the property, setting off against such the rents, ^
after deducting the amounts paid for taxes and insurance.
The widow of Wm. Swan, as his administratrix, and his heirs, were
made defendants. The heirs answered, those who were adults answering
for themselves, and those who were minors by their regular guardian, the
service of process on them being waived by him.
By reference to the Clerk and Master the amount of the enhanced value
of the lot was ascertained, to which was added the amount of taxes and in-
surance paid, and from the aggregate sum the amount of the rents was ^ ^ /l^z^ ^'U .k#'p,,
deducted. For the balance a decree was rendered, and an order of sale of// ^ /,5t^:zt;::«. .
the lot for its satisfaction.
Both sides have appealed.
1. It is objected to the decree below that the record shows that the
minor defendants were not served with process, and that it does not appear
that the answer put in for them by their regular guardian was subsci'ibed
and sworn to. The certificate of the clerk shows that the defendants made
oath to the answer ; this was sufficient without the signature of the party, -x
as no exception was taken to it. The case of Cowan v. Anderson,^
' 7 Col. 284.
;io
MASSON V. SWAN.
[ClIAP. III.
determines that a regular guardian may defend for minors and waive
process.
2. It is said that there is no equity in the bill, and that complainant has uo
right to the aid of a court of equity to enable him to rescind the contract.
By the recent decisions in this State, the contract of sale was not abso-
lutely void, but voidable upon the election of cither party. Roberts v.
Francis.^ Swan, the vendor, did not elect to avoid the contract, nor did
his heirs after his death. Complainant made no tender of the purchase-
money, and could not claim a title until he had done so. He rested upon
the parol contract, made the improvements, and occupied the property as
" his own under the parol contract, until May 2, 18G0, when he elected to
avoid the contract and claim compensation for his improvements. He had
.^ -*»,<''' t.««*A/^ t^^^ right to make his election, and as the improvements were made under
' ' ■ L/ - a subsisting parol contract, he had the right to come into a court of equity
'"*'' ' ' , to have his claim for compensation enforced. The equity springs from the
'*"''*^**^ '^'^^ *^'^'"fact that the contract is not void butvoidableTlind that cither party has
^„.^/y>'v^. the rightto avoid it. Rhea v. AUison.^
3. The equity of complainant is the amount of the enhancement of the
value of the lot in market, resulting from the permfinent improvemen'^raade
upon it ; this value"toT)e estimated_at the time he made his election to avoid
the contract^ The amounts actually expended in making or superintending
the improvements do not furnish the criteria for ascertaining the en-
hanced value, though they may be looked to as legitimate evidence in the
investigation.
But as complainant seeks the enforcement of an equity, he is bound to
:^do^quTtyy hencg^lilEJS'^q'T^'^^^t." account for the benefits derived from
the use and occupation of the property. As he elects to repudiate the con-
tract, and along with it The payment of the purchase-money, equity requires
him to account for reasonable rents.
During the occupation of the lot the law imposed taxes on the property.
These were incumbrances, for the removal of which he ought to have credit
upon the amount of the rents. But the insurance paid upon the property
stands on a different footing. He insured the property voluntarily and for
his own protection, and while he was holding and treating the property as his
own. We see no equity in allowing him a credit for this expenditure. The
balance due to complainant will bear interest from tlie filing of the bill.
The only remaining question is as to whether the enhanced value should
be paid by the administrator or the heirs 1 It cannot be regarded as a
debt against the administrator. The liability arose upon the election of
complainant to avoid the contract, and it is a liability arising out of no
default on the part of the intestate or his administratrix. For all we can
see, the intestate was ready at any time to make title if complainant had
entitled himself to it by tendering or paying the purchase-money. Not
1 2Heisk. 128. - Z Head, 176.
SECT. II.] SMITH V. DRAKE. 311
electing to do this during the hfetirae of the intestate, and only making his
election to avoid the contract after the legal title had descended to the
heirs of the intestate, at which time his equitable claim for compensation
came into existence, we think it clear that the liability attaches to the
property itself out of which it sprung, and that it cannot be viewed as a \\
debt of the estate to be paid by the administratrix.^ The real estate and
not the personal is benefited by the improvenjent, and equity necessarily
fixes the liability for the benefit on the real esta^te.
With the modifications indicated, the decree of the Chancellor is affirmed.
The heirs will have four months within which to pay the amount ascertained
to be due. The clerk of this court will make report of the amount due to
the present term. The costs will be paid by complainant.
^'-
SMITH AND Others v. DRAKE and Others.
In the Court of Chancery of New Jersey, February Term, 1873.
[Reported in 8 C. E. Green, 302.]
Argued upon final hearing, on bill, answer, and proofs.
Mr. Kays and Mr. R. Hamilton for complainants.
Mr. McCarter for defendants.
The Chancellor. The complainants are five children of Alexander H.
Smith, who died intestate in November, 1843. The defendant, Nathan
Drake, was appointed administrator of his estate, and having obtained an
order of the Orphans' Court of Sussex county for the sale of the real estate
of his intestate for payment of debts, in March, 1846, sold the real estate,
being a house and lot in Newton, to one Dennis Cochran, at public auction,
for $1300. On the 28th of January, 1847, he conveyed this property^jto.
Cochran by deed of that date, and on the same day received a deed from
Cochran and wife for the same. Both deeds were dated and acknowledged
on the same day, and acknowledged before the same Master.
Nathan Drake took possession of the property after the sale, put build-
ings_in_ repaJjV-added to them, and erected pqw hnilrlings on thp lot^ nnd
rented them and received the^nts._
In 1843, at the death of their father, the oldest of the complainants
was sixteen, the youngest four years old. The first was therefore of age in
1848, the last in 1860. The bill was filed in 1865. or five years after the
youngest child came of age.
The complainants allege that the sale made nominally to Dennis Coch-
ran was in resility made to Drake himself, for whom Cochran was the agent/ |
They asked to have the sale set aside on equitable terms, and the property
conveyed to them. , (
312 SMITE V. DEAKE. [CIL\.P. m.
Drake, in answer, denies that Cochran purchased for him, or that he was
the real purchaser at the sale ; and sets up the acquiescence of the com-
plainants, and the time permitted to elapse before filing the bill, as a bar
to the relief in equity. ^
The complainants ask that the conveyance be set aside on equitable
terms. On part of the defendant it is contended that the court should
only allow the excess of the value at the time of the sale, above the bid
of Cochran, with interest; as was done in the case of Huston v. Cassedy.'
In that case this course must be taken to have been pursued by the Chan-
cellor for the reason that it was with the assent of the complainants, as
it was really the most beneficial to them ; he states his determination to
make the reference in that manner with the reservation, " unless the com-
plainants show cause to the contrary." He states that "the rule is inflexi-
ble, that a sale made by an administrator or any other acting in a fiduciary
capacity to himself, or for his benefit, will be held void at the instance of
the party prejudiced by such sale, and the purchaser regarded in equity as
a trustee." And in Obert v. Obert,* to which he there refers, he said : " It
is a matter of right in the complainant, and not of discretion in the court,
to have the deed removed out of his way and set aside." These are per-
fectly consistent with the course pursued, if assented to by the complain-
ant ; but not with refusing to set aside the deed when the complainant
insists upon it. In that case it is pretty clear from the evidence, that the
property would not have brought $G000 at that time, and, therefore, the
decree, while just against the defendant, was most beneficial to the com-
plainant. The defendant here, as there, has been guilty of a legal or con-
structive breach of trust, and therefore must be held to strict account;
and the option in such case is always with the cestui que trust.
But the decree must be made on equitable terms. The defendant paid
debts of his intestate to the amount of the sum bid for the property. He
must be allowed that sum with interest from the times when he paid it out,
which, for~EH^urpose of this case, must be assumed to be the date of the
delivery .of the deed. His final account was no doubt adjusted on that
basis.
He also expended moneys in the improvement of the premises. He_
must be allowed the additional value which such improvements at the
present time give to the premises, above what their value would have been
now if these_jarprovements jiad not been made. He is not to be allowed
the cost of such improvements ; they may have been unwisely made, or
their value have perished or depreciated by decay. But such allowance
must not, in any case, exceed the cost of these improvements, for tlie
defendant must make no profit out ol them.
J So miicli of the oiiiiiion as relates to the questions raised hy defendant's answer has
been omitted. — En.
2 2 Beas. 228, and 1 McCarter, 320. ^ 2 Stoekt. 103.
SECT. II.] IIAGGERTY V. McCANNA. 313
He must account for allj;eDts and ^profits rcceiveci from the premises, or
that might have been received_by prudent management and ordinary dili-
gence, including a fair and full occupation rent for the same when occupied
by him or his family ; and is to be credited for taxes actually paid, and all
ordinaryjmd usual repairs.
Harriet Smith, the widow of the intestate, was entitled to dower in the
premises. On the 2d day of April, 1850, she conveyed this right to Drake.
From that time until her death, Drake, by this deed, was entitled to one
third of the income, and therefore, during that period, must be charged
with only two thirds of the net value or income of the property.
If the occupation rent, and rents received from the property as im-
proved, exceed the rents that could have been received from it as it was
at the sale, kept in good repair, any excess in the actual cost of improve-
ments above their present value to the property may be deducted from
such excess of rents, and the defendant be charged with the balance only ;
as it is equitable that expenditures which gave additional temporary value
to the premises should be repaid out of the additional income actually
received by means of them.
Upon payment of the amoimt found due on these principles to the legal
representatives of Nathan Drake, who is now dead, the conveyance to him
will be declared void.
HAGGERTY v. McCANNA.
In the Court of Chancery of New Jersey, May Term, 1874.
[Reported in 10 C. E. Green, 48.]
On final hearing on pleadings and proofs.
Mr. James Wilson for complainant.
Mr. Mercer Beasley, Jr., for defendant.
The Chancellor. In 1864, the complainant married Jane McCanna,
then the widow of John McCanna, deceased. She had one child, the de-
fendant, the issue of her marriage with McCanna. The defendant was
aboi;t eleven years old when her mother was married to the complainant.
Her father died seized of two vacant lots in Trenton, then of comparatively
small value. After his death, his widow built, at the cost of about $500,
a small house on one of the lots and resided in it. After her marriage to
the complainant, the latter built another house on the front of the same
lot, and a house on the other lot. He improved the lots in various other
ways, by grading, flagging the sidewalks, etc. He and his wife dwelt in one
of these houses and rented out the other. He paid the taxes and assess-
ments on the property. From the time of his marriage to this time, he
314 HAGGERTY V. McCANNA. [CHAP. III.
has been in possession of it. His wife had dower in it, but it was never
assigned. AVheu the buildings and other improvements above referred to
were put on the property, both the complainant and his wife supposed that
the land belonged to the latter, and they first learned their mistake when
she, being as she supposed in extremis, in September, 1871, called in a
lawyer to make her will. She died in September, 1872, leaving three
children, the defendant and two other daughters, the issue of her mar-
riage with the complainant, both of whom are still living. When McCanna
bought the property, it was subject to a mortgage for $300, the amount of
which was allowed him as so nmch of the purchase-money. The mortgage
was subsequently assigned to his brother, who, in 1867, required payment,
and the complainant then, with his own money, paid it, sending to the
holder of it in Ireland a draft for the amount then due on it, $487, and
received it in return with the bond it was given to secure. This mortgage
the complainant, in the full belief that the property was his wife's, sub-
sequently, when he was about to mortgage the property to secure a loan,
caused to be cancelled of record. The defendant lived in the complainant's
family from the time of his marriage to her mother up to March, 1871,
when she was sent to a school in Kewark. The complainant, however,
appears not to have supported her at that school. Very soon after the
death of the complainant's wife, the defendant instituted an action of
ejectment against the complainant, in the Supreme Court, to obtain pos-
session of the premises. The complainant then filed his bill to restrain
her from prosecuting that suit, and praying that the value of the improve-
ments and the value of the land irrespective of them, might be ascertained,
and the defendant might be required to pay him for his improvements and
the amount of the mortgage debt paid by him, or release the land to him
on receiving the value thereof over and above the improvements, after
deducting therefrom the mortgage debt above referred to, and a proper
allowance for her support while she lived in his family.
This case is one of great hardship. The improvements are proved to be
of the present value of more than $2000. They were all made by the
complainant, except the small house before mentioned built by his wife
during her widowhood. Against the value of these improvements, and the
payments made on account of the property by the complainant, there is no
oftset except the value of the use and occupation of the lots, which, un-
doubtedly, is comparatively very insignificant. The result of the suit at
law must be to deprive the complainant of his entire property. He invokes
the aid of this court to prevent so flagrant a wrong. He bases his claim
to. relief on the ground of mistake. Biit an^crror which is_tliejH;sult_of
inexcusable negligence is not a mistake from tlic conjiaquenccs of which
equity will gnuiT relief. The~complainant*s mistake in this case w:is m
asHiTnTmgT as lie sivys he (lid, from the fact that his wife had administered
on McCanna's estate, that she was the owner of the lots of land in question.
Add
SECT. II.] IIAGGERTY V. McGANNA. 315
lie appears to have made no inquiry whatever on the subject. On the
argument it was urged that on the ruHng of this court in McKelway v.
Armour,^ the relief sought might be granted. But the decision in that
case was expressly put on the ground of the complainant's mistake as to
the location of a vacant lot, plotted out on a map only, a mistake which
the court said was one which might occur to the most careful and diligent
man, and the fact that the defendant stood by and participated in tiie
mistake, which latter consideration was regarded as a most important
feature in the case. In the present case the defendant, during all the
time during which the improvements were made, w\as an infant, and
incapable, therefore, of either the participation or the acquiescence which
were so essential elements in that case. Besides, the mistake here was one
from which the most ordinary care would have guarded the complainant.
No relief can be afforded him on the ground of mistake. Nor can he avail
himself of the position taken by his counsel on the hearing, that his wife
may be considered as having been in possession of the premises as guardian
of the defendant, and as having made the improvements as such guardian,
and that therefore the complainant is, in equity, entitled to have from
the defendant the value of those improvements. A guardian will not be
allowed the cost, or even the value of the buildings erected on the estate
of the ward without authority, Putnam v. Ritchie;^ Hassard v. Rowe ; ^
Green v. Winter;* Bellinger v. Shafer;^ Payne v. Stone. ^ The complain-
ant's counsel insisted upon the hearing that, tinder the circumstances, the
court would, to relieve the complainant in part at least, grant him an
allowance for past maintenance of the defendant. That the support which
the complainant gave her was given without expectation of compensation,
is manifest from the evidence. He appears to have voluntarily assumed
the care and support of his step-daughter. He therefore stood towards her
in loco parentis. In the absence of an express promise, made by the child
after attaining major-ity, to repay the step-father, no compensation can be
recovered by him at law or in equity for such support. Chitty on Con,,
11 Am. Ed. 215; Cooper v. Martin;' Shark v. Cropsey;^ Williams v.
Hutchinson ; ^ Lantz v. Frey ; ■'"* Worthington v. McCraer ; ^^ Grove v. Price ; ^^
Schouler on Dom. Rel. 378.
I do not feel at liberty, even for so conscientious a purpose as to mitigate
the unquestionable hardship of the complainant's case, to create a liability
where no legal or equitable foundation for it exists. The case in 26 Beavau
is in point. There the step-father's estate was chargeable with certain
trust money received by him, the property of the step-children. His ex-
ecutor sought to offset it by a claim in favor of the step-father for the
1 2 Stockt. 115. 2 6 Paige, 390. 3 u Barb. 24.
« 1 Johns. Ch. 26. & 2 Sandf. Ch. 293. 6 7 s„i. & m. 367.
7 4 East, 76. ^ W Barb. 224. » 3 Conist. 312.
10 19 Pa. 366. 11 23 Beav. 81. 12 26 Beav. 103.
316 GUTHRIE V. HOLT. [CHAP. III.
maiiitcnauce of the children. The Master of the Eolls, Sir Jon\ Romilly,
refused to allow it.
I am constrained to refuse the relief the complainant asks, on this gi-ound
also. The money paid in satisfaction of the mortgage, however, with lawful
interest from the time when it was paid by the complainant, should be
declared to bo an equitable lien on the land, and should be charged thereon
accordingly. The taxes, etc., paid by the complainant in respect of the
property, and the improvements made by him thereon, are enough to
answer any just demand of the defendant for rents and profits. In any
account of these rents and profits between her and the complainant, she
would be in equity entitled to only two thirds thereof during the lifetime
of her mother, whose dower in the premises was never assigned. The
complainant is entitled, also, to his costs of this suit. I shall therefore
charge upon the land the amount paid in satisfaction of the mortgage, with
interest from the time when it was paid, and on payment thereof to the
complainant, with his costs of this suit, the injunction will be dissolved.
This case would present a different aspect as to the relief which the court
could afford in the premises, were the defendant, instead of the complainant,
an applicant for the exercise of equitable power. In such case, the court
might extend its assistance to her on terms, or refuse its aid altogether,
according as equity might seem to demand.
JOHN GUTHRIE v. THOMAS HOLT.
In the Supreme Court of Tennessee, December Term, 1876.
{Reported in 9 Baxter, 527.]
Appeal from the Circuit Court at Nashville. Nathaniel Baxter, J.,
presiding.
F. E. Williams for plaintiff.
Baxter Smith for defendant.
Deaderick, C. J., delivered the opinion of the court.
Holt obtained judgment in the Circuit Court of Davidson county against
Guthrie, from which Guthrie appealed to this court. In January, 1871,
Holt sold to Guthrie by verbal contract a tract of land in said county,
agreeing to make him a deed when the boundaries should be ascertained.
Holt put his son-in-law in immediate possession. Within the year Guthrie
stated his inability to pay for the land, and proposed to rescind the trade
and pay for the use. 'J'his was not done, and Holt assumed possession,
and sued him for rent for use and occupation.
The defences set y\\) were, that Lovell, the son-in-law of Guthrie, was the
purcha.ser and not Guthrie, and that he had made improvements on the
SECT. II.] GUTHRIE V. HOLT. 317
laud exceeding in value the rents. The jury foiuid, on sufficient evidence,
that Guthrie was the purchaser, and, under the charge of the court, they
made no allowance for any improvements, but gave a verdict for $150 for
one year's rent, of which plaintiff remitted $25.
The court charged the jury that if Holt was in fault in not completing ^
the contract of sale, Guthrie would be entitled, upon plea of set-off, to so j
much as his improvements enhanced the value of the lands, but if Holt ]\
was ready to carry out the contract and Guthrie refused, then he would I
not be entitled to any allowance for improvements. It is insisted by plain-
tiff in error that the entire part of this charge is erroneous, and that Guth-
rie or Lovell having purchased in good faith, and no deed having been
executed, he is entitled, upon the repudiation of the contract by either
party, to be allowed for improvements to the extent such improvements
may have enhanced the value of the laud.
The case of Humphreys v. Hottsinger,^ is cited as sustaining the position
contended for. In that case Humphreys was in possession under a title
bond, which stipulated that if the contract was not met in twelve months
after it is due, the same is subject to be reversed at the will of Hottsingei*.
The purchase not having been paid for twelve months after it was due,
Hottsinger elected to annul the contract and took possession of the
property.
Humphreys filed his bill to obtain payment for his improvements. This
court held, citing several cases, that the complainant was in possession law-
fully by contract, and expected to pay for the lot, but was unable to do so,
and, upon rescission, was entitled to be paid whatever sum his improvement
enhanced the value of the lot, but no more. One of the cases cited is
Herring & Bird v. Pollard,^ where the purchasers filed their bill to obtain
restitution of sums paid upon a verbal contract of purchaser of land, and
for compensation for improvements made thereon, upon their failure to
agree with the vendor upon the character of the conveyance to be made,
and the court said the question is whether a party who has made improve-
ments upon the land of another, expecting to obtain the title, is entitled
to payment and can enforce it in equity; and adopting the opinion of
Judge Story, in 1 Story's Rep., 478, that the denial of all compensation
to such bona fide purchaser in such a case, where he had enhanced the
permanent value of the estate, would be contrary to the first principles of
equity, adding that to me it seems manifestly unjust and inequitable thus
to appropriate to one man the property of another, who is in no defixult.
In this last mentioned case, as in the case in 3 Sneed, relief was sought in
equity by the vendee. In 6 Humph. 324, it was held that a vendee in pos-
session under a verbal contract of purchase of land, could not recover at
law for improvements, although he might do so in equity to the extent that
such improvement has enhanced the value of the land.
1 3 Sneed, 228. ^ 4 Humpli. 302.
318 GUTHKIE V. HOLT. [CIIAr. III.
And in 3 Head, 178, it was held as settled in this State that when a man
is put in possession of land by the owner upon a verbal sale, or one other-
wise invalid, which the owner of the land fails or refuses to complete, and,
in expectation of the performance of the contract, the vendee makes im-
})rovements, he may recover, upon bill filed by him, the value of such
improvements to the extent they have enhanced the value of the land,
citing 4 Humph, and 3 Sneed cases. In the later case of Rainer v. Huddle-
ston,i where there was a verbal sale with a promise by the vendee to pay
8500 on taking possession, and the vendor then to give a bond for title,
Rainer, the vendee, took possession but did not pay any part of the pur-
chase-money, and Huddleston refused to make him a title bond, but told
him he would give him further time until the next Christmas to pay what
was due then by the terms of their contract. Rainer continued in posses-
sion, paid no part of the purchase-money, and, after it was all due, aban-
doned the place and sued in chancery for the value of his improvements.
It further appeared that at the time of the sale the vendor notified the
vendee not to improve the land, if he failed to pay the $500 first due, as
he would not allow anything for improvements.
Nicholson, C. J., in delivering the opinion of the court, referring to and
citing the several cases decided by this court and other authorities upon this
question, says : —
" It follows, from the several authorities referred to, that complainant
who comes into a court and claims compensation for improvements made
upon the land of another, will be repelled unless he shows that he was a
bona fide possessor holding under an invalid or verbal sale, and honestly
believing that he has or will have a valid title, and intending honestly to
consummate his purchase by the payment of the purchase -money, and,
while so holding, makes improvements which add to the permanent value
of the land, but fails to consummate his purchase without fault on his
part, and on account of the default of the vendor. Before he can success-
fully invoke the aid of a chancellor, it is incumbent on him to show that
he has been in no default in not executing his contract, but has been pre-
vented from so doing by the failure or refusal of the owner of the land to
complete the sale."
Although it appears that the vendor had notified the vendee that he
would not pay for improvements, the case is distinctly put upon the ground
that the vendor was guilty of no fault, as by refusing to complete the sale
or otherwise, but that the vendee was in default by his failure to perform
his contract, and upon this ground, which is stated l)y the learned judge to
be the rule deduced from the authorities cited, relief was refused, and we
think the rule a sound one.
The case in Story's Rep., which was followed by the case in 4 Humph., as-
sumed that the vendee was in no default and upon that ground was enti-
1 4 IIei:ik. 224.
SECT. II.] ISLE ROYALE MINING CO. V. HERTIN. 319
tied to relief, and our own cases grant the relief upon the same idea, that
the vendor either foils or refuses to complete the sale, or that by reason of
an honest disagreement as to its terms, neither is willing to its execution
upon the terms insisted upon by the other. In the case of Humphreys v.
Hottsinger,^ the learned judge who delivered the opinion, after citing the
previously decided cases by the court, already referred to, states that the
case, although differing in its foots, falls within the principle settled in
the cases cited.
If it is assumed that the vendor was in fault then the case would fall
within the principle of those cases. But the vendor was ready to perform
the contract, and the vendee failed or refused to perform his contract, and
the vendor for this had the legal right to treat the sale as invalid and one
which the vendee had refused and failed to execute and complete. Under
the rule laid down in 4 Heisk., as deduced from the cases cited, the vendee
would not be entitled to compensation for improvements.
We do not think that there was any error in allowing evidence to show
what the place produced in 1873, which could have prejudiced defendant.
There was much evidence as to the value of the rent, and whatever
tended to show the productiveness of the land would be relevant. Nor
was there anything in affidavits introduced for a new trial. The facts de-
posed to were considered leading points on the trial, and evidence adduced
thereto by each party. Upon the whole we think there is no material
error in the record and the judgment is affirmed.
I
THE ISLE ROYALE MINING COMPANY v. JOHN HEETIN
AND MICHAEL HERTIN.
In the Supreme Court of Michigan, October 1G, 1877.
[Reported in 37 Michigan Reports, 332.]
Trover and indebitatus assumpsit. The facts are in the opinion.
T. L. Chadhonrne and S. F. Seager for plaintiff in error.
Chandler & Grant and G. V. N. Lothrop for defendant in error.
CooLEY, C. J. The parties to this suit were owners of adjoining tracts of
timbered lands. In the winter of 1873-74 defendants in error, who were
plaintiffs in the court below, in consequence of a mistake respecting the
actual location, went upon the lands of the mining company and cut a
quantity of cord wood, which they hauled and piled on the bank of Portage
Lake. The next spring the wood was taken possession of by the mining
company, and disposed of for its own purposes. The wood on the bank
of the lake was worth $2.87| per cord, and the value of the labor expended
1 3 Sneed, 228.
320 ISLE EOYALE MIXING CO. V. HEKTIN. [CUAP. III.
by plaintiffs iu cutting and placing it there was $l.S7i per cord. It was
not clearly shown that the mining company had knowledge of the cutting
and hauling by the plaintiffs while it was in progress. After the mining
company had taken possession of the wood, plaintiffs brought this suit
The declaration contains two special counts, the first of which appears to
be a count in trover for the conversion of the wood. The second is as
follows : —
" And for that whereas also, the said plaintiff, Michael Hertin, was in
the year 1874 and 1875, the owner in fee simple of certain lands in said county
of Houghton, adjoining the lands of the said defendant, and the said plaintiffs
were, during the years last aforesaid, engaged as co-partners in cutting, haul-
ing, and selling wood from said lands of said Michael Hertin, and by mistake
entered upon the lands of the said defendant, which lands adjoined the
lands of the said plaintiff, Michael Hertin, and under the belief that said
lands were the lands of the said plaintiff, Michael Hertin, cut and carried
away therefrom a large amount of wood, to wit : one thousand cords, and
piled the same upon the shore of Portage Lake, in said county of Houghton,
and incurred great expense, and paid, laid out, and expended a large
amount of money in and about cutting and splitting, hauling and piling
said wood, to wit : the sum of two thousand dollars ; and afterwards, to wit :
on the first day of June, A. D. 1875, in the coimty of Houghton aforesaid, the
said defendant, with force and arms, and without any notice to or consent
of said plaintiffs, seized the said wood and took the same from their posses-
sion and kept, used, and disposed of the same for its own use and purposes ;
and the said plaintiffs aver that the labor so as aforesaid done and performed
by them, and the expense so as aforesaid incurred, laid out, and expended
by them in cutting, splitting, hauling, and piling said wood, amounting as
aforesaid to the value of two thousand dollars, increased the value of said
wood ten times and constituted the chief value thereof, by reason whereof
the said defendant then and there became liable to pay to the said plaintiff,
the value of the labor so as aforesaid expended by them upon said wood
and the expense so as aforesaid incurred, laid out, and expended by them in
cutting, splitting, hauling, and piling said wood, to wit : the said sum of
two thousand dollars ; and being so liable, the said defendant in considera-
tion thereof, afterwards, to wit : on the same day and j'ear last aforesaid
and at the place aforesaid, undertook, and then and there faithfully prom-
ised the said plaintiffs to pay unto the said plaintiffs the said sum of two
thousand dollars, and the interest thereon." —
The circuit judge instructed the jury as follows :
" If you find that the plaintiffs cut the wood from defendant's land by
mistake and without any wilful negligence or wrong, I then charge you that
the plaintiffs are entitled to recover from the defendant the reasonable cost
of cutting, hauling, and piling the same." This presents the only question
SECT. II.] ISLE EOYALE MINING CO. V. IIERTIN. 321
it is necessary to cousider on this record. The jury returned a verdict for
the plaintiffs.
Some facts appear by the record wliich might perhaps have warranted
the circuit judge in submitting to tlie jury the question whether the proper
authorities of the mining company were not aware that the wood was being
out by the plaintiffs under an honest mistake as to their rights, and were not
placed by that knowledge under obligation to notify the plaintiffs of their
error. l>ut as the case was put to the jury, the question presented by the
record is a narrow question of law, which may be stated as follows : whether,
where one in an honest mistake regarding his rights in good faith performs
labor on the property of another, the benefit of which is appropriated by the
owner, the person performing such labor is not entitled to be compensated
therefor to the extent of the benefit received by the owner therefrom ?
The affirmative of this proposition the plaintiffs undertook to support, hav-
ing first laid the foundation for it by showing the cutting of the wood under
an honest mistake as to the location of their land, the taking possession of
the wood afterwai-ds by the mining company, and its value in the condition
in which it then was and where it was, as compared with its value standing
in the woods.
We understand it to be admitted by the plaintiffs that no authority can
be found in suppoi't of the proposition thus stated. It is conceded that at
the common law when one thus goes upon the land of another on an assump-
tion of ownership, though in perfect good faith and under honest mistake
as to his rights, he may be held responsible as a trespasser. His good faith
does not excuse him from the payment of damages, the law requiring him
at his peril to ascertain what his rights are, and not to invade the posses-
sion, actual or constructive, of another. If he cannot thus protect himself
from the payment of damages, still less, it would seem, can he establish in
himself any affirmative rights, based upon his unlawful, though uninten-
tional encroachment upon the rights of another. Such is unquestionably the
rule of the common law, and such it is admitted to be.
It is said, however, that an exception to this rule is admitted under cer-
tain circumstances, and that a trespasser is even permitted to make title in
himself to the property of another, where in good faith he has expended his
own labor upon it, under circumstances which would render it grossly un-
just to permit the other party to appropriate the benefit of such labor.
' The doctrine here invoked is the familiar one of title by accession, and
though it is not claimed that the present case is strictly within it, it is in-
sisted that it is within its equity, and that there would be no departure
from settled principles in giving these plaintiffs the benefit of it.
The doctrine of title by accession is in the common law as old as the law
itself, and was previously known in other systems. Its general principles
may therefore be assumed to be well settled. A wilful trespasser who ex-
pends his money or labor upon the property of another, no matter to what
VOL. II. — 21
322 ISLE ROYALE MINING CO. V. IIERTIN. [CHAP. III.
extent, will acquire no property therein, but the owner may reclaim it so
long as its identity is not changed by conversion into some new product.
Indeed some authorities hold that it may be followed even after its identity
is lost in a new product ; that grapes may be reclaimed after they have
been converted into wine, and grain in the form of distilled liquors.
Silsbury v. ^IcCoon.^ See Riddle v. Driver.'^ And while other authorities
refuse to go so far, it is on all hands conceded that where the appropriation
of the property of another was accidental or through mistake of fact, and
labor lias in good foith been expended upon it which destroys its identity,
or converts it into something substantially different, and the value of the
original article is insignificant as compared with the value of the new pro-
duct, the title to the property in its converted form must be held to pass
to the person by whose labor in good faith the change has been wrought,
the original owner being permitted, as his remedy, to recover the value of
the article as it was before the conversion. This is a thoroughly equitable
doctrine, and its aim is so to adjust the rights of the parties as to save both,
if possible, or as nearly as possible, from any loss, IJut where the identity
of the original article is susceptible of being traced, the idea of a change in
the property is never admitted, unless the value of that which has been
expended upon it is sufficieutly great, as compared with the original value,
to render the injustice of permitting its appropriation by the original owner
so gross and ])alpable as to be apparent at the first blush. Perhaps no case
has gone further than Wetherbee v. Green, ^ in which it was held that one
who, by unintentional trespass, had taken from the land of another young
trees of the value of $25, and converted them into hoops worth $700, had
thereby made them his own, though the identity of trees and hoops was
perfectly capable of being traced and established.
But there is no such disparity in value between the standing trees and
the cord wood in this case as was found to exist between the trees and the
hoops in Wetherbee v. Green. The trees are not only susceptible of being
traced and identified in the wood, but the difference in value between the
two is not so great but that it is conceivable the owner may have pre/erred
the trees standing to the wood cut. The cord wood has a higher market
value, but the owner may have chosen not to cut it, expecting to make
some other use of the trees than for fuel, or anticipating a considerable rise
in value if they were allowed to grow. It cannot be assumed as a rule
that a man prefers his trees cut into cord wood rather than left standing,
and if his right to leave them uncut is interfered with even by mistake, it is
manifestly just that the consequences should fall upon the person committing
the mistake, and not upon him. Nothing could more enco\irage careless-
ness than the acceptance of the principle that one who by mistake performs
labor upon the property of another should lose nothing by his error, but
should have a claim upon the owner for remuneration. Why should one
» 3 N. Y. 379. 2 12 Ala. 590. « 22 Mich. 311.
SECT. II.] GOODNOW V. MOULTON. 323
be vigilant and careful of the rights of others, if such were the law 1
Whether mistaken or not is all the same to him, for in either case he has
employment and receives his remuneration; while the inconveniences, if
any, are left to rest with the innocent owner. Sucli a doctrine offers a
premium to heedlessness and blunders, and a temptation by false evidence
to give an intentional trespass the appearance of an innocent mistake.
A case could seldom arise in which the claim to compensation could be
more favorably presented by the facts than it is in this ; since it is highly
probable that the defendant would suffer neither hardship nor inconvenience
if compelled to pay the plaintiffs for their labor. But a general principle is
to be tested, not by its operation in an individual case, but by its general
workings. If a mechanic employed to alter over one man's dwelling-house,
shall by mistake go to another which happens to be unoccupied, and before
his mistake is discovered, at a large expenditure of labor shall thoroughly
overhaul and change it, will it be said that the owner, who did not desire
his house disturbed, must either abandon it altogether, or if he takes pos-
session, must pay for labor expended upon it which he neither contracted
for, desired, nor consented to ] And if so, what bounds can be prescribed
to which the application of this doctrine can be limited ^ The man who by
mistake carries off" the property of another will next be demanding pay-
ment for the transportation ; and the only person reasonably secure against
demands he has never assented to create, will be the person who, possessing
nothing, is thereby protected against anything being accidentally improved
by another at his cost and to his ruin.
The judgment of the Circuit Court must be reversed, with costs and a new
trial ordered.
The other Justices concurred.
.•^J. /T^^-^^!] GOODNOW V. MOULTON et al ^^^^^^^
\ . / >< In the Supreme Court of Iowa, Sept^ember 17, 18t9, ^, . / / • ^
' -^~^>-^'^^\^^ jC^ /C,,_^\B£j)orted in 61 Iowa Reports, 555.] y ^ — ^^■>< -^-t^^^^ ^ tty-^^ <l^ -^C^ ^^^ /4L--^
Ac];fON in equity. A decree was entered in the Circuit Court dismissing
the petition, and plaintiff" appeals.
George Crane and John Doud, Jr., for appellant.
Clark <k Connor for appellees.
Seevers, J. In 1863 the Iowa Homestead Company purchased, and
there was conveyed to said company by the Dubuque & Sioux City Rail-
road Company, certain lands described in the petition. Other lands were
embraced in the same conveyance, which purported to convey the fee simple
title. In 18G4, and every year thereafter up to and including 1871, the
324 GOODNOW V. MOULTON. [cHAP. IIL
Homestead Company paid the taxes levied on said laud, which, during the
period aforesaid, was not in the actual occupation of any one.
The title of said company failed, as hereafter stated, and this action is
brought to recover of the defendant Moulton, the owner of said lauds, the
X taxes so paid, — the plaintiff having succeeded to all the rights of said
company. An accounting is asked, and a decree that the amount found
due be made a charge on the land. General relief is also asked.
When the taxes were paid it was believed by said company it was the
owner of said lands, under the act of Congress known as the " railroad
grant." The source of the defendants' title is the act of Congress granting
lands in aid of the improvement of the Des Moines River.
From 1859, or before that time, up to December, 1872, the title to the
land described in the petition was in dispute between parties claiming under
said grants. During the greater portion, if not all of said period, the title
was being litigated by those under whom the parties claim, or, more cor-
rectly speaking, there were actions pending in which the title to other lands
than those described in the petition was being litigated.
In December, 1872, it was determined in Homestead Company v. Valley
Eaih'oad,^ that the parties claiming under the act of Congress in aid of the
improvement of the Des Moines River owned the legal title to said lands.
This decision conclusively and finally determined that the Homestead
Company did not own the lands described in the petition at the time the
taxes were paid, but that the defendant ^loulton was the owner. For
a more full and complete history of the several acts of Congress, the legisla-
tion of the State, and the litigation resulting therefrom, see the above
cited case ; and The Dubuque & Pacific R. Co. v. Litchfield ; "^ Wolcott v.
Des Moines Co.,^ should also be consulted.
The taxes were paid "on the 28th day of February in each year, without
any request from defendant Moulton, and, by mistake as to the ownership
of said lands, in good faith, under the belief of ownership."
The lands were assessed to " unknown owners." The defendant Moulton
has never paid or offered to pay any portion of said taxes. No objection
is made to the form of the action.
As to the questions involved we have to say : —
I. It is regarded as well settled by authority that the general rule is, one
person cannot make another his debtor by paying the debt of the latter
without his request or assent, but it is believed to be equally well settled
that a request or assent may be inferred under some circumstances ; as if
" one person see another at work in his field, and do not forbid him, it is
evidence of assent, and he will be holden to pay the value of the labor.
Sometimes the jury may infer a previous request, even contrary to the
fact, on the ground of a legal obligation alone." *
Where one pays the funeral expenses of the deceased wife of another,
1 17 Wall. 153. 2 23 How. 66. » 5 Wall. 681. * 2 Greeuluaf, Ev. § 108.
SECT. II.]
GOODNOW V. MOULTON.
325
the latter being beyond the seas, a previous request will be inferred, because
of the legal obligation resting on the husband. Jenkins v. Tucker.^
Nicliol V. Allen ^ was an action to recover for boarding the defendant's
child. There was no evidence of a request or promise to pay. But the
defendant had knowledge the child was boarding with the plaintiff, and
it was said by Lord Tenteuden, C. J., that " there is not only a moral but
a le^'al obligation on the defendant to maintain his child ; he knows where
she is, and exi)resses no dissent, and does not take her away. There is
a le'^al obligation made out, if it is shown she is maintained in the plain-
tiflTs house, and he knows it ; and it lies on the defendant to show that she
is there against his consent, or that he has refused to maintain her any
longer at his expense."
Where one person is compelled _to_p£iy- money which anotlier is under ^^^
a legal obligation to pay, the one so paying jnay recover of the person S
legally bound. In such a'case a previous request will _be^ inferred^ Pownal (
v: Ferrand ; ^ Exatt v. Partridge ; * Bailey v. Bussing.^
If one person in good ftiitli, because of a statutory obligation resting ou
him, or because public policy so requires, pays money another is under a
legal obligation to pay, a previous request, we think, might well be inferred
if he had knowledge of the payment at the time it was made ; or, if he did
not have knowledge until afterward, and there were a series of payments
made from time to time, an assent should be presumed. As the Home-
stead Company was not, in fact, the owner, it was not, under ordinary
circumstances, in a strict and technical sense bound or under obligation to
pay the taxes ; but under the peculiar cii'cumstances of this case we think
it was the duty of said company, and public policy required it, to pay said
taxes, and Moulton should not be permitted to say otherwise.
Moulton knew, or was bound to know, the title to the lands was in dis-
pute and "^5eTng~aCtualIy litig~ated for aseries_of years, and that the con-
strnction of the acts of Congress andthe legislation of the_State were ' '^ tf^tt.'*^
He was -^''^^^'•-^^'"^^ >.— ^>*-
involved. ^He failed to have the lands assessed in his name,
bound to know the lands were ^taxable, and that the taxes had been paid
by som"e""oiiel Drdihary diligence would have developed the fact the
"^yments]^were~not made~ofticiously or by an intermeddler, buj_by:-one
clothed_with an apparent title.
For the purpose of ascertaining whether the taxes were paid officiously,
and whether it was the duty of the Homestead Company to pay the taxes,
a brief glance at the litigation involving the title to these lands, and its
effect, is requisite.
The case of The Dubuque & Pacific E. Co. v. Litchfield was decided in
1859, and its tendency was to show that the said lands passed under the
railroad grant. At least it was then held said lands were not embraced
r
\
1 1 H. Bl. 90.
* 87 R. 308.
2 3 Car. & P. 35.
6 28 Conn. 453.
3 6 B. & C. 439.
326 GOODNOW V. MOULTON. [CIIAP. III.
in the grant made in aid of the improvement of the Des Moines River.
The inference from this decision could be fairly, and we have no doubt was
indulged, that the lands passed under the railroad grant.
This decision was fullowed, in 18G6, by the AVolcott case. This action
■was between parties, both of whom claimed under the river grant, and it
was held that the title to such lands had passed thereunder. But as no
one claiming under the railroad gi-ant was a party to the action, it cannot
be said the decision was of any bearing force as to them.
It was not until 1872 that there was an authoritative decision adverse
to those claiming nnder the railroad grant. Under these circumstances
the Homestead Company was fully justified in believing that it was clothed
\ with the legal title. By no amount of care and diligence could it have
arrived at any other conclusion. The title was in great doubt, and nothing
under the circumstances, short of a decision of the Supreme Court of the
United States, could reasonably be expected to settle the question. Until
such decision was made it was the duty of parties claiming under both
these grants to pay the taxes. Either was fully justified in so doing. The
circumstances are peculiar and anomalous, and demand the establishment,
or recognition, of a rule consonant with law, equity, justice, and common
honesty. That the defendant should reimburse the plaintiff for the taxes
paid there can be no doubt, unless there is some well recognized principle
which forbids it. ^Ve do not believe there is any such. The foregoing
views do not conflict with Garrigan v. Knight.^ In that case the plaintiff
purchased the land direct from the general government. About his title
there could not be any dispute. This the defendant was bound to know.
The latter, in fact, had no title, and this he was bound to know. Any one
having ordinary knowledge of law could and would have so advised him.
There was neither dispute nor litigation as to the title. The defendant,
without inquiry or the use of ordinary diligence, paid the taxes. The
payments, under such circumstances, were made officiously and by an
intermeddler.
Something is said in Homestead Company v. Valley Eailroad, before cited,
which indicates that taxes paid by the plaintiff in that action could not be
recovered. If such point was in the case and really determined, it would
be an authority in this action. That action was brought to determine the
question of title, and we have looked in vain for anything in the statement
of the questions involved, or the opinion of the court, which tends to show
witli any degree of certainty that the question of the right of the plaintiff
to recover the taxes paid was in the case. We infer, from what is said l»y
the reporter, that the matter of taxes was only so far involved as the same
in a court of equity would affect or bear upon the question of title.^
1 47 Iowa, 52.^.
2 It seems that the appellants, during this litigation, paid the taxes on a portion of
these lands, and claim to be reimbursed for this expenditure in case the title is adjudged
gECT. II.] HAWKINS V. BROWN. 327
II. The statute of limitations was pleaded in bar of a recovery. If an
action accrued at the time tlie several payments were made, then all are
barred except the last payment. On the other hand, if the cause of action
did not accrue until it was authoritatively determined the Homestead
Company did not have title, then none arc barred.
This question was not determined below, and has not been argued by
counsel for appellant, and but briefly by counsel for the appellee. Under
these circumstances no ruling should be now made as to this question.
The decree below will be reversed and the cause remanded, with direc-
tions to the Circuit Court to ascertain and determine the amount the
plaintiff is entitled to recover, and to enter a decree making the same
a lien on the land described in the petition, and providing in some proper
manner for its enforcement.
Beversed.
HAWKINS, Etc. v. BROWK
In the Court of Appeals of Kentucky, March 30, 1882.
[Reported in 80 Kentucky Reports, 186.]
Eodes & Settle and E. W. Hines for appellant.
H. T. Clark for appellee.
Judge Hargis delivered the opinion of the court.
The appellee, a mai-ried woman, sold and conveyed a tract of land to the
appellant.
She received and used the consideration, which was about the value of
the land at the time she conveyed it.
Her husband did notjoin in the deed.
to be in the defendants, on the ground that they paid the taxes in good faith and in
ignorance of the law. But ignorance of the law is no ground for recovery, and the ele-
ment of good faith will not sustain an action where the payment has been voluntary,
without any request from the true owners of the land, and with a full knowledge of all
the facts. It is an elementary proposition, which does not require support from ad-
judged cases, that one person cannot make another his debtor by paying the debt of the
latter without his request or assent.
It is true, in accordance with our decision, the taxes on these lands were the debt of
the defendants, which they should have paid, but their refusal or neglect to do this did
not authorize a contestant of their title to make them its debtor by stepping in and pay-
ing the taxes for them, without being requested so to do. Nor can a request be implied
in the relation which the parties sustained to each other. There is nothing to take the
case out of the well-established rule as to voluntary payments. If the appellants, owing
to their too great confidence in their title, have risked too much, it is their misfortune,
but they are not on that account entitled to have the taxes voluntarily paid by them
refunded by the successful party in this suit. — Davis, J., delivering the opinion of the
court in Homestead Co. v. Valley Co., 17 Wall. 153, 166. [Ed.]
^<^. ^
328 ILUVKINS r. BROWN. [cn.vr. m.
The appellant occupied the land^forjfourteen years, jiDdLerfictijd lasting
/ and valuable improvements on it, — more valuable than the laud itsclfl
Then the appellee brought this suit to set aside the conveyance she had
made, on the ground that she was a feme covert when and ever since she
executed it, and sought to recover the land and the rents thereof.
I The appellant resisted her prayer, and asked that he be reimbursed the
\A'^\,^%^\. . j I purchase-money he had paid to her, with interest from the date of pay-
\ ' nient, and that he be adjudged the value of the lasting improvements, with
interest thereon.
c-^^^^g^ j I The court adjudged to her the land and cancelled the deed, and referred
"Aj / the cause to the Master to audit and rejDort the rents and improvements.
The Master reported in favor of appellant the consideration he had paid
'''«*■<— ri^>^>^ and six per cent interest thereon; the taxes, and the enhanced vendible
^ value of the land by reason of the improvements, but rejected his claim to
interest on the last two named items. And he reported in her favor yearly
^y^^>*^/r' r*wvd,t*«j:ent to the amount of the united annual interest on the consideration and
'. «/jiW«^ L,^u^^^ prime cost of the improvements, which brought her in debt to the
/ ^/_ ' -^/appellant in the sum of $818.60.
' / Upon her exceptions the court set aside the commissioners report, and
T**^' /***%endered judgment in favor of appellant for §232.00.
"H^ '^/"i^^<>"^ii^ This result was reached by first statingthe account thus : —
i-^;^*— ♦/,*«-«<» 7,uX
4i i;»— /i:^:_^*I, IN BEHALF OF APPELLANT.
->-^^'^a-^/L, - / Consideration §750.00
Interest on same 588.00
Taxes paid on land 54.60
Improvements 1,200.00
Total $2,592.60
IN BEHALF OF APPELLEE,
Kent for six years at §60 per year .... §360.00
And eight years at §250 per year .... 2,000.00
Total 2,360.00
Amount due Hawkins, appellant §232.60
The sum allowed appellant for the improvements was their prime cost,
and the rent was fixed in favor of appellee at the value estimated from the
opinions on that subject of the witnesses.
From the judgment giving to her the land there is no appeal, and the
. only question, therefore, for our consideration involves the propriety of the
Au^S jA-Z^Tx criteria upon which the court based its judgment.
In all cases of rescission of contract, the object of the Chancellor should
be to place the parties, as far as possible, in the condition they occupied be-
fore making the contract. And the facts of each particular case must, in
some degree, control the equitable adjustment of the rights of the parties.
SECT. II.]
HAWKINS V. BROWN.
329
In this case the appellant knew the appellee was a married woman when
he contracted with her, and, as a matter of law, he is presumed to have
known that she was incapable of contracting, bnt, as a matter of fact, he
did not know she was so disabled by her coverture.
Shall he, as contended by appellee's counsel, be denied anything for his
improvements because her disability was known to him 1 "VVe think not.
This court held, in the case of Bell's Heirs v. Barnett,^ that after judicial
notice to an occupant under purchase that the land does not belong to him,
he should be allowed pay for his improvements made after such notice so
far as they enhanced the value of the land.
So in the case of Thomas v. Thomas's Ex'r,^ it was held that the widow
was in equity bound to account for improvements by which the vendible
value of the land was increased, although when she signed the deed she
was a feme covert, and was incapable of imposing a charge upon her prop-
erty, or of disposing of it except in the mode and with the solemnities
prescribed by law.
And in Barlow v. Bell,^ the land of the wife was sold by the agent of her
husband, and after the death of the latter she sued and recovered the land,
on the ground that she did not join in the sale or conveyance. The court
refused the purchaser pay for his improvements, because he was shown to
have had a perfect knowledge of the feme covert's title, and was advised of
the consequences of a purchase from her husband's agent before he made
it ; yet it was said by the court that " we should have no hesitation in
relieving the possessor for improvements made upon the land whilst he
bo7ia fide considered it his own. The possessor, by bestowing his money
and labor in meliorating the land, advances its value, and consequently the
rightful owner, unless liable to the claim of compensation, is so much the
gainer by the loss of the possessor, contrary to the maxim iiemo debet locii^
pletari aliena jactura.
These principles apply to the facts of this case. It- appears that these
improvements were not, in fact, made viala fide, but under the^ntstaken'
Felieftliat the wifeliad the right to sell her own land without the conjunc~
tion of her" husbandT^And she7 having actively and willingly participated"
in the transaction^there_being no fraud or deceit practised by the appellant,
should be required to do equity, and pay for^jthe improvements, which she
'necessarily recovers with theH^nd. to the extent_thaLlhey_enhance its
v^dible value.
And the rule as to the quantum of rents laid down in Morton's Heirs v.
Eidgeway,^ etc., is, in our opinion, applicable to this case. There it was
said : " The rents should be regulated by the interest on the consideration
and on the value of the improvements, being neither greater nor less than
their united amount."
I iLpth L^ rf.',a /v.^:.
i
1 2 .J. J. Mar. 520.
3 1 Marsh. 246.
2 16 P.. Mon. 400.
* 3 J. J. Mar. 258.
330
FREICHNECHT V. MEYER.
[chap. III.
This was tlie criterion by which the Master was governed in his report,
which should have been confirmed.
Wherefore, the judgment is reversed, with directions to overrule appel-
lee's exceptions to the Master's report, and render judgment in conformity
thereto.
TiC*-^!
' a^t
-V-^
/fc,>:
*4
GUSINE FREICHNECHT, Complainant, Appellant, v. MAGDALENA
MEYER, Defendant, Respondent.
In the Court of Errors and Appeals of Kew Jersey, March Term,
1885.
[Reported in 39 New Jersey Equity Reports, 551.]
On appeal from a decree of the Chancellor, whose opinion is reported
in Freiknecht v. Meyer. ^
Messrs. E. D. <k W. B. Gillmore for appellant.
Mr. Joseph A. McCreery for respondent.
The opinion of the court was delivered by
Dixon, J. The complainant filed her bill to redeem a lot of land in
Jersey City from two mortgages, dated respectively February 6, 18G9,
and April 2, 1872, given by herself and husband to the defendant to se-
cure $-400. The bill jiyers that about March 7, 1878, tlie defendant took
possession of the mortgaged premises as mortgagee, and still holds the
same, and prays that an account may be taken and allowance made to the
complainant of the rents and rental value of thejnpperty : andjthat if any.,
balance shall appear to be due the defendant on her mortgages, she may
be decreed to surrender the mortgaged~premises to the complainant on
payment of such balance^ which the latter <-pr»f^prg h^rs'^lf rf ndy 4o pay.
The defendant's answer admits the mortgages, and the entry into pos-
session about March 7, 1878, but alleges that the defendant "entered into
and has since remained in possession of said mortgaged premises, as stated
in the bill, but not simply as mortgagee thereof, but also as owner by
purchase of the equity of redemption which the complainant theretofore
had in said premises."
The answer then sets forth the means by which the defendant claimed
to have become the owner ; namely, a judgment in her favor against the
complainant, obtained in a court for the trial of small causes, for a debt
outside of the mortgage debts; the docketing of that judgment, in due
form of law, in the Common Pleas of Hudson county; a Ji. fa. from the
Common Pleas, and a sale and conveyance of the premises by the sheriff of
Hudson county to the defendant. The answer further avers that the
' 11 Stew. E.j. 315.
SECT. II.] FREICIINECIIT V. MEYER. 331
complainant acquiesced ^i_said conveyance, and thereupon voluntarily
surrendered the possession of the premises to the defendant, who entered,
paid oil' taxes, water-rents, and assessments, and some time afterwards made
valaal5Te improvements upon the property.
The~complainanI tiled a general replication.
About the time the bill was exhibited, the complainant brought an , .
action of ejectment for the premises against the defendant, in the Hudson / '
County Circuit, to which the defendant pleaded the general issue, and on
particulars of her title being demanded, set up the mortgages and the
sheriff' 's deed, with the proceedings whereon it rested. Thereupon the
complainant applied to the Chancellor for an order that the ejectment
suit should stand as an issue from chancery to try the title under the
sheriff's deed presented by the answer, and that the defendant should be
restrained from relying thereon upon the mortgage, so that it might be
ascertained at law whether the complainant was still the owner of the
equity of redemption. The defendant opposing this application, it was
denied.
Proofs were then taken in the cause, which established the facts alleged
in the pleadings, except that they also developed the matter upon which
the complainant relied to show that the defendant's title under the
sheriff" 's deed was on its face illegal and void.
Atjiiifll heariQg^_the_CHANCELLOR dismissed the bill on the ground that
it was silent as to the sheriff's deed, jind stated that the defendant took
possession as mortgagee, when in fact she entered as owner of the equity
of redemption, and held under both the sheriff's deed and the mortgages.
He declined to pass upon the validity of that deed, because the bill raised
no issue thereon, and said that if it had raised such an issue, the court
would have had no jurisdiction over it, it being a purely legal question.
From this dismissal the complainant appeals.
The case, however, presents circumstances which require the court to
impose on the complainant certain conditions precedent to the exercise of
her right to redeem ; namely, the payment to the defendant of a fair
compensation for the permanent improvements she has made.-' It appears
that before the sheriff's sale both complainant and defendant believed that
such sale would be valid, and some negotiations passed between them on
that assumption, from which the defendant not unreasonably inferred that
the complainant was willing she should take the property in satisfaction of
her judgment, if no one else would bid more ; that after the sale, both
parties believing it to have been legal, the complainant surrendered and
the defendant took and retained possession of tlie premises, and thereafter , , ,
the defendant treated them as her own, making lasting improvements r~
wHlch greatly mcreased their value ; that the complainant knew of these
improvements and believed that tEe defendant was acting upon the idea
1 Only so much of the opinion is given as relates to this question. — Ed.
332 FREICnNECIIT V. MEYER. [CHAP. IH.
that she was owner, yet never questioned her title nor objected to her
conduct until this hill was filed. Xow, without undertaking to say that
these facts, would give the defendant a right to affirmative relief, we think
it plain that they present a case for the application to the complainant of
the maxim that they who seek equity must do equity. There would be a
manifest inequity in the complainant's appropriating the^ benefit of the
dcfcnda,nt's expenditures without compensation. Such an appropriation
would be contrary to the expectation of both parties when the outlays
were made. Against it the defendant has a perfect shield at law in li£r_
estate as mortgagee, and this court should not deprive her of that shield,
except upon terms which are just.
The complainant urges that the question whether the defendant's title
was good or bad depended upon the sufficiency or insufficiency of the
constable's written return to his execution, and hence was a question of
law, the correct solution of which the defendant was bound to know ; that
therefore the defendant is chargeable with knowledge that she had no title
except under her mortgages, and so must be held to have made the
improvements as mortgagee ; and that a mortgagee is not entitled to
reimbursement beyond necessary repairs.
No doubt the general rule both at law and equity is, ignorantia juris
hand excusat, as the courts of this State have repeatedly declared. Gar-
wood V. Eldridge ; ^ Bentley v. Whittemore ; ^ Hampton v. Nicholson ; '
Hayes v. Stiger.^ The rule, however, has not been considered universal
and inflexible. Thus, in Champlin v. Laytin,** Vice-Chancellor M'CouN
said : " As a general rule, this court does not relieve upon the ground of a
mistake in matters of law, because every man is presumed to have a
knowledge of the law. . . . Yet there are cases in which this court will
interfere upon the ground of_such mistake. . . . As, for instance, ... if
lx)th parties shouTcTbe ignorant of a matter of law, and should enter into a
contract for a particular object, and the result according to law should be
different from what they mutually intended, there, on account of the
surprise or immediate result of the mistake of both, there can be no reason
why the court should not interfere to prevent the enforcement of the con-
tract and to relieve from the unexpected consequences of it. To refuse
would be to permit one party to take an unconscientious and inequitable
advantage of the other, and to derive a benefit from a contract which
neither of them ever intended it should produce." On this princijile he
based his decree. On appeal,^ Chancellor Walworth, affirming the decree
for other reasons, refrained from expressing any opinion one way or
the other upon the point of decision below, which he said ])rcsentcd great
difficulties on both sides. In the Court of pj-rors,' notwithstanding Justice
1 1 Or. Cli. 145. 23 f. K. c.v. 366. » 8 C. E. Gr. 423.
< 2 Stew. Eq. 196. ^ 6 P;;!;,'.', ISlt, 195. « 6 Paij,'c, 202.
^ 18 Wend. 407.
^^^juL^I,
SECT. II.] FREICHNECIIT V. MEYER. 333
Bronson's elaborate and forcible presentation of the opposite view, Senator
Paige stated his concurrence in the principle laid down by the Vicc-
Chancellor. So in England, Sir JouN Leach, V. C, in Naylor v. Winch,^
said : " If a party, acting in ignorance of a plain and settled principle of
law, is induced to give up a portion of his indisi)utable property to another
under the name of compromise, a court of equity will relieve him from the
effect of his mistake ; " and in Clifton v. Cockburn ^ Lord IkiouGiiAM said :
" I think I could without much difficulty put cases in which a court of
justice, but especially a court of equity, would find it an extremely hard
matter to hold by the rule and refuse to relieve against an error of law."
Likewise, in Stone v. Godfrey," Lord Justice Turner stated that he had no
doubt the court had power to relieve against mistakes in law as well as
against mistakes in fact. Similar dicta by all the justices appear in Rogers
V. Ligham.* See also Stupilton v. Stupilton.^ In the recent case of
Cooper V. Phibbs ^ the Lord Chancellor of Ireland said : " No doubt a
mistake in point of law may be corrected both in this court and in a court
of law. This is now perhaps sufficiently established, though it was for
some time a subject of controversy in courts of law ; " and finally, when
the case reached the House of Lords,'^ Lord Westbury used this language : ;
" It is said, ignorantia juris hand excusat ; but in that maxim the word jus'
is used in the sense of denoting general law, — the ordinary law of the^ U \^ . 1^^,^ ^ i ^
country. But when the word jua is used in the sense of denoting a privates ? - ^ - / ^
right, that maxim has no application. Private right of ownership is a^j''^^'*^ mij4v>tg
matter of fact. It may be the result also of matter of law ; but if parties
contract under a mutual mistake and misapprehension as to their relative
and respective rights, the result is that that agreement is liable to be set
aside as having proceeded upon a common mistake." To the same effect is
the language of Lord Chelmsford, in Earl Beauchamp v. Winn,^ concurred
in also by the other lords.
These citations (and others of similar purport might be adduced) suffi-
ciently indicate that in a court of equity, at least, a man is not under all
circumstances to be regarded as fully comprehending all his legal rights and
duties, so far as they gi'ow out of facts which he knew or with reasonable
diligence might have learned. Indeed, one large branch of equity juris-
prudence — the reformation of written instruments — appears to rest
mainly upon an exception to such a doctrine ; for if parties acquainted
with the tenor of documents which they execute are to be conclusively
presumed to know also their legal import, it would seem that there could
be no room for the notion that the writings did not express their real
intention. But constantly courts of equity reform the most solemn in-
struments, upon the ground, not that the parties have inserted words
1 1 S. & S. 555. 2 3 Myl. & K. 76. 3 5 pg G. M. & G. 76.
* L. R. 3 Ch. D. 351. 5 2 L. C. in Eq. 1675. 6 17 ir. ch. Rep. 73.
7 L. R. 2 H. L. 149. » L. R. 6 H. L. 223, 234.
334
FREICHNECIIT V. MEYER.
[chap. III.
(^.—-ri,^^
y
which they meant to exclude, or omitted words which they meant to
'' insert, but that the language does not express their agreement ; that they
/ '"** ^^did not put upon tlie terms employed the same construction as the law
-< /*J. /le^^^oes ; in short, that there was a mutual mistake of law, — using the word
" law " in its broader sense. Weller v. Rolason ; ^ Green v. M. & E. E. R.
Co. ; ^ Wanner v. Sisson ; * Stines v. Hayes.*
In this state of the decisions and dicta, it would be scarcely prudent to
attempt to lay down a very comprehensive rule for the relief in equity
against mistakes of law. I am not prepared to agree with Lord West-
bury that in all cases the ownership of property is to be classed among
matters of fact, or that in the maxim, ignorantia juris hand excusat, jus
denotes only general law, — the ordinary law of the country, as distinct
from the legal interpretation of private instruments. But I think it
will be found to accord with the decisions, and with the safe and equi-
table conduct of affairs, to establish this rule : that wheneverthe mistake
of law is mutual, and the party jeopardized thereby can be relieved
withouT substantial mjustice to the other side, there equity will aflbrd
>v^>(< redress ; especially if the party to be benefited by the mistake invokes
tlie aid of e"quitY to put him m a position wherethe^ mistake will become
advantageous lo him. ~ '
In Haggerty v. ISIcCanna,^ Chancellor Zabriskie felt the hardship of
refusing assistance to a complainant who had spent his money in im-
proving an infant's lands under the belief that they belonged to his wife,
although his mistake was one of general law and could not be said to have
been shared in by the defendant, an infant ; nevertheless the Chancellor
intimated that relief would have been afforded if the defendant instead of
the complainant had been an applicant for the exercise of equitable power.
In Putnam v. Ritchie,® which was like Haggerty v. INIcCanna, Chancellor
Walworth, while refusing compensation to the complainant, said that his
claim rested upon a principle of natural equity which was fully adopted in
the Civil Law, and which in his own court was constantly acted upon
where the legal title was in the person who had made the improvements in
good faith, and where the equitable title was in another who was obliged to
resort to the court of equity for relief; the court, he says, in such cSses
acts upon the princijjle that the party who comes as a complainant to ask
equity must himself be willing to do what is equitable.
The case of Cooper v. Phibbs' completely sustains the rule above enun-
ciated. There, the father of the defendants had been entitled to an estate
for life only in a fishery, but had supposed himself to be the absolute
owner, and under that belief had laid out large sums of money in extend-
ing and improving it. On his death his heirs, the defendants, thought
1 2 C. E. Or. 13. 2 1 Beas. 165 ; 2 McCart. 469.
* 9 Stew. Eq. 364 ; 11 Stpw. Eq. 654.
8 2 Stew. Eq. 141.
6 10 C. E. Gr. 48.
6 Paige, 390.
7 17 Ir. Ch. Rep. 73.
SECT. II.]
FREICIINECHT V. MEYEE.
they had become its owners ; and with that opinion they made a lease for
years to the comphiinant, who had ahvays entertained the same view of
the title. In truth, on the death of the defendants' father the title had
vested in the complainant for life by force of a trust agreement, the exist-
ence of which was known to all the parties, and the contents of which they
knew or could readily have learned, but which had been misconstrued.
The complainant, on coming to a recognition of liis rights, tiled a bill to set
aside the lease. The House of Lords acceded to his prayer, but upon the
terms that the expenditures of the former tenant for life in the permanent
improvement of the fishery should be repaid to his representatives. Van-
derhaise v. Hugues ^ seems to be of similar character. The defendant was
in fact mortgagee in possession under a conveyance from the complainant
absolute on its face. From the circumstances mentioned in the Chancel-
lor's opinion, it is to be inferred that the defendant had been considered
by both himself and the complainant to be the absolute owner, and as such
had made lasting improvements on the property. Chancellor Green
decreed, on the complainant's bill to redeem, that the defendant must be
allowed for those improvements.
The case before us stands upon the same footing, and the complainant
should be permitted to exercise her right of redemption only on condition
that she pay to the defendant the present value of the permjiientjmprove-
menls which she~has~made on the premises.
Therefoj^ let the decreeof the Chancellor be reygrsed. Let an account
be taken of the amount due the defendajrtJor^ijicipaLund interestj)n her
mortgage7^n3 TiTEIs^account the mortgage must be regarded as not
usuriouT; for besides the insufficiency of the averments of the bill touching
usury, we think the evidence does not prove the charge. To this amount
let the taxes, water-rents, and assessments, and the cost of necessary
repairs paid by" the defendantj_with interest thereon, be added, so^far as
the same were not increased by the -lasting improvements^ From this
total must be deducted what rents the defendant recejyed^ or without
wilful default (Seton on Decrees, Heard's Ed., 487 ; Vanderhaise v.
Hugnes ^) might have received from the property in its unimproved con-
dition, and a proper charge for the occupancy thereof by the defendant
herself;_jrhe balancewill be the price at which the complainant lias the
right to redeem. But let the value of the defendant's improvements also
be ascertained, and the payment of such value to the defendant be decreed
to be a condition precedent to the complainant's exercise of her right of
redemption.
The defendant urges also that she should have a decree for payment of
the sum which she bid at the sheriff's sale, being the amount of her
docketed judgment. But we think this should not be accorded to her, for
the reason that, the docketing proceedings being wholly void, the judg-
1 2 Beas. 410.
\v
"i^
336 UNITED STATES V. PACLFIC KAILROAD. [CHAP. in.
, ment remains in tlie trial court unsatisfied and in full legal effect; her
/], hold upon that judgment has not been impaired.
She also insists that her mortgagee, Harper, is a necessary party to the
suit, and that as the complainant has not brought him in, no decree for
redemption can be made. The case, however, does not disclose whether
his mortgage was on record at the filing of the bill, so as to entitle him to
be joined.^ If it was, the complainant must amend.
Let the record be remitted, and a decree be made in accordance with
the foreo'oino' views. Decree unanimously reversed.
UNITED STATES v. PACIFIC RAILROAD. PACIFIC RAILROAD
V. UNITED STATES.
In the Supreme Court of the United States, January 31, 1887.
[Reported in 120 United States Reports, 227.]
These were appeals from the Court of Claims. The case is stated in
the opinion of the court.
j\Ir. Attorney-General and Mr. E. M. Watson for the United States.
Mr. John F. Dillon and i\Ir. James Coleman for the Pacific Railroad
Company.
Mr. Justice Field delivered the opinion of the court.
The Pacific Railroad Company, the claimant in this case, is a corporation
created under the laws of Missouri, and is frequently designated as the
Pacific Railroad of that State, to distinguish it from the Central Pacific
Railroad Company incorporated under the laws of California, and the Union
Pacific Railroad Company incorporated under an act of Congress, each of
which is sometimes referred to as the Pacific Railroad Company.
From the 14th of August, 18G7, to the 22d of July, 1872, it rendggd
services by the transportation of passengers and freight, for which the
Urnled" States are indebted to it in the sum of .$136,196.98, unless they
ar"e^tItTcdTo~olset the cost of labor andjnaterials alleged to have been
furnished by them, at its request, for the construction of certain bridL^es on
the line of i^s road. The extent and value of the services rendered are not
disputed. It is only the offset or charge for the bridges which is in con-
troversy ; and that charge arose in this wise : During the civil war, the
State of Missouri was the theatre of active military operations. It was on
several occasions invaded by Confederate forces, and between them and
the soldiers of the Union conflicts were frequent and sanguinary. The peo-
ple of the State were divided in their allegiance, and the country was
ravaged by guerilla bands. The railroads of the State, as a matter of course,
1 Rev. p. 118, §78.
SECT. II.] UNITED STATES V. PACIFIC RAILROAD. 337
were damaged by the contending forces ; as each deemed the destruction
of that means of transportation necessary to defeat or embarrass the move- i'^^A--^'^ ,^^/vr-^v/
ments of the other. In October, 1864, Sterling Price, a noted Confederate a^ ^ /i^xx.^.c^.Ck rf
officer at the head of a large force, invaded the State and advanced rapidly u^^^-l.
towards St. Louis, approaching to within a few days' march of the city.
Durinc this invasion, thirteen. bridges upon the main line and southwestern
branch of the company's road were destroyed. General Rosecrans was in
command of the Federal forces in the State, and some of the bridges were
destroyed by his orders, as a military necessity, to prevent the advance of
the enemy. The record does not state by whom the others were destroyed ;
but their destruction having taken place during the invasion, it seems to
have been taken for granted that it was caused by the Confederate forces,
and this conclusion was evidently correct. All the bridges except four
were rebuilt by the company. These four were rebuilt by the government,
and it is their cost which the government seeks to offset against the de-
mand of the company. Two of the four (one over the Osage lliver and one
over the Moreau River) were destroyed by order of the commander of
the Federal forces. The other two, which were over the Maramec Eiver,
it is presumed, were destroyed by the Confederate forces.
Soon after the destruction of the bridges, and during the same month,
General Rosecrans summoned to an informal conference, in St. Louis, sev-
eral gentlemen regarded as proper representatives of the railroad company,
being its president, the superintendent and the engineer of the road, and
several of the directors. The court below makes the following finding as
to what there occurred : —
" By General Rosecrans it was stated that the immediate rebuilding of
the bridges was a military necessity^; that he should expect and requireTHe^
company to do all in their power to put the roads in working order at the
earliest possible moment ; and that he intended to have what work they
did not do done by the government, and withhold from the freight earnings
of the roaJlT sum sufficient to repay the government for such outlays as in
law and fact it should be found entitled to have repaid.
" The gentlemen pi-esent assured General Rosecrans, that they would do
all in their power to rebuild the bridges and put the roads in working
order at the earliest moment, but they at the same time represented that
several of the bridges, as they believed, had been destroyed by the proper
military authority of the United States, and that in such cases the govern-
ment was properly responsible for the loss, and should replace the bridges.
Those which the public enemy had destroyed they conceded that the
company should replace.
" General Rosecrans replied in substance : ' (Jentlemen, the question of
the liability of the government for repairing damages to this road is one of
both law and fact, and it is too early now to undertake the investigation
of that question in this stirring time. T doul)t myself whether all the
VOL. 11. — 22
338 UNITED STATES V. rACIFIC RAILROAD. [CIIAP. IIL
daniao-es which you say the government should be responsible for, will be
found liable to be laid to the charge of the government, ^'evertheless,
whatever is fair and right I should like to see done. You tell nic now, and
I have been informed by some of your representatives individually, that the
company's means are insufficient to make these large repairs and make
them promptly. Therefore, I want to say to you that, as a military neces-
sity, we must have the work done, and shall be glad to have the company
do everything it can, and I will undertake to have the remainder done, and
we will reserve out of the freights money enough to make the government
good for that to which it shall be found to be entitled for rebuilding any or
all of the bridges, and we will return the freights to you or settle with you
on principles of law and equity.'
" The gentlemen interested in the company reiterated their view of the
case, that the company should pay for bridges destroyed by the public
enemy, and that the government should replace at its own cost the bridges
destroyed by its own military authorities."
The court also finds that these mutual representations and assurances
were not intended or understood on cither side to form a contract or agree-
ment binding on the government or the company ; that no formal action
upon them was taken by the board of directors ; and that there was no
proof that they were ever communicated to the directors, except as may be
inferred from subsequent facts and circumstances mentioned ; but that the
company, through its directors and officers, promptly exerted itself, to its
utmost power, to restore the roads to running order, and to that end
co-operated with the government.
At the same time, General Rosecrans informed the Secretary of War that
the rebuilding of the bridges was " essential, and a great military necessity "
in the defence of the State, and requested that Colonel Myers should be
authorized " to have them rebuilt at once, the United States to be reim-
bursed the cost out of freight on the road." The Secretary referred the
matter to the Quartermaster General, who recommended that General
McCallum, Superintendent of Military Roads, be directed to take the neces-
sary measures immediately for that purpose. The Secretary approved
the recommendation, and General McCallum was thereupon ordered to
cause the bridges' to be rebuilt by the quickest and surest means possible.
It does not appear that the company had any notice of these communica-
tions or of the order.
The bridge over the Osage River was destroyed on the 5th of October,
18G4, by order of the officer commanding the central district of Missouri,
acting under instructions from General Rosecrans to " use every means
in his power to prevent the advance of the enemy." The court finds
that the destruction was ordered for that purpose, and that the exigency
appeared to the officer, and in fact was, of the gi-avest character, and
an imperative military necessity. The government rebuilt the bridg(^_at
a
SECT. 11.] UNITED STATES V. PACIFIC RAILROAD. 339
an expense of $96,152^5 ; and this sum it seeks to charge against the
company.
The bridge across the Moreau was also destroyed by command of the same
officer, under the same military exigency. The com2)any commenced it.s
reconstruction, but, before it was completed, the work was washed away l)y
a freshet in the river. T]he^overnment afterwards rebuilt it at an expense
of $30j,801 f and this sum it also seeks to charge against the company.
The two bridges across the Maramec were destroyed during the invasion,
as already stated, but not by the forces of the United States. They were,
however, rebuilt by the government as a military necessity, at an cxEeiise
of $54,595.24 ; and this sum, also, it seeks to charge against the company.
The Court of Claims allowed the cost of three of the bridges to be charged
against the company, but rejected the_charge for the fourth, ^:::^he^ne over / '^
IHe Osage River. The United States and the claimant both appealed from I
itsTudgment ; the claimant, because the cost of the three bridges was al-
lowed ; the United States, because" the charge for one of the four was
disallowed.
Jhe_cost of the four bridges rebuilt by the government amounted to
$181,548.89. The question presented is, whether the company is charge-
able with their cost, assuming that there was no promise on its part, ex-
press^r implied^jto payjfor_them. That there was no express promise is
clear. The representations and assurances at the conference called by
General Eosecrans to urge the rebuilding of the bridges were not intended
or understood to constitute any contract : and it is so found, as above
stated, by the court below. They were rebuilt by the government as a
military necessity to enable the Federal forces to carry on military opci'a-
tions, and not on any request of or contract with the company. As to the
two bridges destroyed by the Federal forces, some of the officers of the com-
pany at that conference insisted that they should be rebuilt by the govern-
ment without charge to the company, and, though they appeared to consider
that those destroyed by the enemy should be rebuilt by the company, there
was no action of the board of directors on the subject. What was said by
them was merely an expression of their individual opinions, -which were not
even communicated to the board. Nor can any such promise be implied
from the letter of the president of the company to the Quartermaster Gen-
eral in November, subsequent to the destruction of the bridges, informing
him that the delay of the War Department in rebuilding them had
prompted the company to " unusual resources " ; that it was constructing
the bridges over the Gasconade and the Moreau liivers, and that the only
bridge on the main line to be replaced by the government was the one over
the Osage River, the company having replaced all the smaller, and was then
replacing all the larger ones. The letter only imparts information as to
the work done and to be done in rebuilding the bridges on the main line.
It contains no promise, as the court below seems to have thought, that, if
u a e Y^
340
UNITED STATES V. rACIFIC RAILROAD.
[chap. III.
k
IJLJL ,
-h
the government would rebuild the bridge over the Osage liiver, it should
be reimbursed for any other it might rebuild on the main line of the com-
pany. Nor do we think that any promise can be implied from the foct that
the company resumed the management and operation of the road after the
bridges were rebuilt ; but on that point we will speak hereafter. Assuming,
for the present, that there was no such implication, we are clear that no
obligation rests upon the company to pay for work done, not at its request
or for its benefit, but solely to enable the government to carry on its
military operations.
"While the government cannot be charged for injuries to, or destruction
of, private property caused by military operations of armies in the fieId»-or
measures taken for their safety and efficiency,^ the converse of jtlie_doctrino
is^equaTly true, that private parties cannot be charge3 for works constructed
olTtheir lands by the government to further the operations of its armies.
Military necessity will justify the destruction of property, but will not
compel private parties to erect on their own lands works needed by the
government, or to pay for such works when erected by the government.
The cost of building and repairing roads and bridges to facilitate the move-
ments of troops, or the transportation of supplies and munitions of war,
must, therefore, be borne by the government.
It is true that in some instances the works thus constructed may, after-
/ wards, be used by the owner ; a house built for a barrack, or for the storage
/ of supplies, or for a temporary fortification, might be converted to soma
♦"-i-w -/,^^i^,,.,^.^ purposes afterwards by the owner of tlie land, but that circumstance would
^-^i-^ lJU~^ aX^^X^^o- impose no liability upon him. Whenever a structure is permanently affixed
*A
^'
r ti^ry^o t^C^-i;^^
to real property belonging to an individual, without his consent or request,
he cannot be held responsible because of its subsequent use. It becomes
'^'■^^^^'^Wy^j^;^^, Els by being annexed to the soil; and he is not obliged to remove it to
escape liability. He is not deemed to have accepted it so as to incur an
obligation to pay for it. merely because he has not chosen to tear it down,
but has seen fit to use it. Zottman v. San Francisco.^ Where structures
are placed on the property of another, or repairs are made to them, he is
supposed to have the right to determine the manner, form, and time in
which the structures shall be built, or the repairs be made, and the mate-
rials to be used ; but upon none of these matters was the company con-
sulted in the case before us. The government regarded the interests only
of the army ; the needs or wishes of the company were not considered. No
liability, therefore, could be fastened upon it for work thus done.
AVe do not find any adjudged cases on this particular point, — whether
the government can claim compensation for structures erected on land of
private parties, or annexed to their property, not b}- their rc(|uest, but as a
matter of military necessity, to cnalile its armies to prosecute their inove-
1 So much of llio ojiiiiion as relates to this question has lieen omitted. — Ed.
2 20 Cal. 96, 107.
SECT. II.] UNITED STATES V. PACIFIC KAILROAD. 341
ments with greater efficiency ; and we are unable to recall an instance
where such a claim has been advanced.
It follows from these views, that the government can make no charge
against the railroad company for the four bridges constructed by it from
military necessity. The court will leave the parties where the war and the
military operations of the government left them.
The judgment of the Court of Claims must, therefore, be reversed, and judg-
ment be entered for the full amount claimed by the railroad company for
its services ; and it is so ordered.
J!- ^6 ^' ^'f 3 ^^<^ '
CHAPTER rV.
BENEFITS CONFERRED AT REQUEST, BUT NOT IN THE CREATION
OR PERFORMANCE OF A CONTRACT.
OSBORX V. THE GOVERNORS OF GUY'S HOSPITAL.
At Guildhall, before Raymond, C. J., Michaelmas Term, 1727.
[Reported in 2 Strange, 728.]
The plaintiflF brought a quantum meridt pro opere et labore in transacting
Mr. Guy's stock affairs in the year 1720. It appeared he was no broker,
but a friend ; and it looked strongly as if he did not expect to be paid, but
to be considered for it in his will. And the Chief Justice directed the jury,
that if that was the case, they could not find for the plaintiff, though noth-
ing was given him by the will ; for they should consider how it was under-
stood by the parties at the time of doing the business, and a man who
expects to be made amends by a legacy cannot afterwards resort to bis
action.1
ALFRED V. MARQUIS OF FITZJAMES.
At Nisi Prius, before Lord Kenyon, C. J., Easter Term, 1799.
[Reported in 3 Espinasse, 3.]
Assumpsit for servant's wages.
Plea, 7ion assumjisit.
The plaintiff proved his employment as a servant in the family of the
defendant, aud relied on a quantum meruit for the time he had served.
It appeared in evidence, that the plaintiff came over from Martinique
with the Duchess of Fitzjames, then Mademoiselle Le Brun. His father
and mother had been slaves on an estate belonging to her in that island.
He had entered into her service in Martinique, and continued to serve her
after her marriage ; and the Duke found him with necessaries of every de-
scription. There was no contract for any hiring for wages ; but a witness
said, that the Marquis had been heard to promise to pay him wages.
Lord K ex YON asked Mr. Erskine, counsel for the defendant, if he objected
to the demand in toto.
1 The mere expectation of a legacy will not defeat a recovery. Baxter v. Gray, 4
Scott, N. R. 374. — Ed.
CHAP. IV.] GUILD V. GUILD. 343
Mr. Erskine said he did ; that the contract was not a contract for any
wages in Martinique, and had so continued in this country without any
variation.
Lord Kenyon said he was prepared to give a decided opinion : That up t
to the time of the promise to pay wages, which tlie witness had said the [ / <^
defendant had made, the plaintiff had no title to recover, as there was no ^1
nn^Tngrcontr!icF()t serviceloF wages.
Garrow and Laives for the plaintiff.
Erskine for the defendant.^
ABIGAIL GUILD v. CURTIS GUILD, Administrator.
In the Supreme Judicial Court of Massachusetts, October Term, 1833.
[Reported in 15 Piclcering, 129.]
This was assumpsit for labor and services performed for the intestate,
who was the plaintiff's father.
At the trial before Wilde, J., evidence was introduced to prove, that
after the plaintiff became twenty-one years of age, she continued to live iu
her fatherV family, and rendered the services for which she claimed com^
pensation in thls^^ction ; but there was no ex^pfess evidence to show that
ter father agreed~tojgay jier wages, or to prove upon what terms she lived
ifi~tierTalHeFsTamily.
The defence i-ested on the ground, that the plaintiff's services were gra-
tuitous and not rendered under any expectation of receiving wages or any
compensation therefor, except by voluntary presents and accommodation,
or by the share she might have expected to receive of the estate of her
father, who was a man of considerable property. On this point cii-cum-
stautial evidence was introduced on both sides.
The jury were instructed, that if they should find that the plaintiff,
after amving at twenty-one years of age, had rendered valuable services
to her father, she would be entitled to a reasonable compensation therefor,
unless they should be of opinion that she did not perform the services
under an expectation of receiving wages or compensation, but with a view
to the share which she might hope to have in her father's estate, by will
or otherwise ; that if the plaintiff had proved that she had performed val-
uable services, she had made out a prima facie case, as the presumption
would be, that she was to receive compensation, unless it should appear
that the services were gratuitous, and that such was the understand ing^oF
1 In Negro Franklin v. "Waters, 8 Gill, 322, it was held that the defendant was not
liable for services rendered by the plaintiff in ignorance of his manumission, the defend-
ant, his former master, fraudulently concealing the fact from him. See, however, Negro ^
Peter v. Steel, 3 Yeates, 250 ; Kinney v. Cook, 4 111. 232. — Ed. /-
7/L
•- Av..-**--i^»Y^ X-t'*-^
344
GUILD V. GUILD.
[chap. IV.
^^ rlCt^^i.
■f
the parties; aud that the burden of proof was on the defendant, to estabUsh
the fact that the services were not rendered under the expectation of wages
or any pecuniary compensation.
The jury returned a verdict for the plaintiff.
If these instructions were incorrect, the verdict was to be set aside, and
a new trial was to be granted ; otherwise, judgment was to be entered on
the verdict.
Mann for the defendant.
Metcalf for the plaintiff.
Shaw, C. J., afterwards drew up the opinion of the court. This motion
for a new trial, for an alleged misdirection to the jury in point of law, has
been long held under advisement, on account of a difference of opinion
upon the points of law among the members of tlie court ; and it has been
often discussed, in the hope that this difference might be reconciled.
The point is, whether, where a daughter, after arriving at twenty-one
years of age, being unmarried, continues to reside in her father's family,
performing such useful services as it is customary for a daughter to per-
foi'm, and receiving such protection, subsistence, and supplies of necessaries
and comforts, as it is usual for a daughter to receive in a father's family,
the law raises any presumption that she is entitled to a pecuniary com-
pensation for such services, and whether, after provint; these facts, the
burden of proof is on the defendant, to show that the services were_per-
formed without any view to pecuaiary compensation.
Some of the court are of opinion, that as it is the ordinary presumption
between strangers, that, upon the performance of useful and valuable ser-
vices in the family of another, it is \ipon an implied promise to pay as
much as such services are reasonably worth, so, after the legal period of
emancipation, the law raises a similar implied promise from a father to a
daughter.
Other members of the court are of opinion (confining the opinioii to the
case of daughters, and expressing no opinion as to the case of sons, laboring
on the farm or otherwise in the service of a father), that the prolonged
residence of a daughter in her father's family after twenty-one, performing
her share in the ordinary labors of the family, and receiving the protection
and supplies contemplated in the supposed case, may well be accounted for,
upon considerations of mutual kindness and good will, and mutual comfort
and convenience, without presuming that there was any understanding, or
any expectation, that pecuniary compensation was to be made ; that proof
of these facts alone, therefore, does not raise an implied promise to make
any pecuniary compensation for such services, or throw on the defendant
the burden of proof to show, affirmatively, that the daughter performed the
services gratuitously, and without any expectation of receiving wages or
pecuniary compensation, but with a view to the share she might hope to
receive in her father's estate or otherwise.
CHAP. IV.]
GUILD V. GUILD.
M5
But the court are all of opinion, that practically the question is of much
less importance than at first view it would appear. Tliose who think that
the law raises no implied promise of pecuniary compensation, from the
mere performance of useful and valuable services, under the circumstances
supposed, are nevertheless of opinion, that it would be quite competent for
the jury to infer a promise from all the circumstances of the case ; and
that although the burden of procjf is upon the plaintiff, as in other cases,
to show an implied promise, the jury ought to be instructed, that if under
all the circumstances of the case the services were of such a nature as to
lead to a reasonable belief, that it was the understanding of the parties
that pecuniary compensation should be made for them, then the jury
should find an implied promise, and a quantum meruit ; but if otherwise,
then they should find that there was no implied promise.
The conclusion, that the question is of less practical importance than
might at first appear, is founded upon the obvious consideration, that it is
scarcely possible that a case can be left to stand upon the mere naked pre-
sumption arising from the fact of the prolonged residence of a daughter in
the family of her father, and the performance of services. There must ot
necessity be a great diversity of circumstances, distinguishing one case es-
sentially from another. Such a continued residence of a daughter may,
indeed must, be regarded under one of these three aspects : she may be a
servant, or housekeeper, expecting pecuniary compensation for services ; or
a boarder, expecting to pay a pecuniary compensation for accommodations
and subsistence ; or she may be a visitor, expecting neitlier to make nor
pay any compensation. Perhaps it might be safe to consider the latter
predicament as embracing the larger number of cases.
Now the circumstances under which the parties continue to reside to-
gether, and which must almost necessarily be disclosed in the progress of
each trial, will go very far to show, in which of these relations the daughter
stood. Such considerations as the following, among many others, would
arise, — What is the state and condition of the family as to affiuence ; was
the father carrying on a business or engaged in an employment usually
requiring the aid of hired females ; had he been accustomed to employ such
before the daughter came of age ; did he employ such afterwards ; had the
father a wife living ; was she capable of managing her family ; or was he
a widower ; did the daughter act as housekeeper ; had the father been ac-
customed to employ a housekeeper on wages ; did he cease doing so ; were
there one, or two, or more daughters similarly situated ; did they share in
the labors of the family, or did the plaintiff exclusively devote herself to
the service of the family ; had the daughter property or means of her own
to support herself, or had she been employed on wages in other families 1
Many other considerations of a like kind might be suggested, some, and
probably many of which must present themselves in each case, and all of
which it would be proper for a jury to take into consideration, in deciding
^ /(-!-.-•—»« A» ■"
'r' it-M.'^-t^ (yf^ M^
346 ANDKUS V. FOSTER. [CHAP. IV.
the question of an implied promise of pecuniary compensation upon either
side.
The court being all of opinion that these are the proper subjects and
sources of inquiry for a jury, I repeat, that it seems unimportant, as a rule
of future practice, whether the jury shall be instructed to inquire and de-
cide upon all the circumstances of the case, whether there was an implied
T^V- ' promise ; or that the proof of performance of services raises a presumption
of such a promise, unless rebutted or controlled by all the circumstances
of the case.
It only remains to state the judgment of the court upon the present
motion. This motion is on the part of the defendant, to set aside the
verdict, and grant a new trial, on the ground of a misdirection of the judge
who tried the cause, in point of law. Upon this question the court being
equally divided, the motion does not prevail, Eeed v. Davis ; ^ and of course
judgment is to be rendered on the verdict for the plaintiff.
BENJAMIN F. ANDEUS and WIFE v. JONATHAN FOSTER
In the Supreme Court of Vermont, March Term, 1845.
[Reported in 17 Vermont Reports, 556.]
In this case the whole matter in controversy was tried upon a declaration
in offset filed by the defendant. Judgment to account was rendered, and
an auditor was appointed, who reported, in substance, as follows, —
In 1821, the defendant, being childless, took the plaintiff's wife, then
Susan Sanderson, who was then about eight or nine years of age, and who
was a niece of his wife, to live with him until she should become of age.
She continued to reside in his family until she became eighteen years of
age, when he informed her that she was free to go, — but told her, that, "if
she remained with him and did well, he would do well by her." Thereupon,
being destitute of a home, she consented to stay with him, and worked for
him as before, living in the family as a member of it, and attended school
some, and was uniformly treated as she was before she became eighteen
years of age ; and during this time neither party kept any accounts against
the other, — nor were any accounts made up between them until after the
commencement of this suit. She continued thus to reside in the defendant's
family, and worked for him, with but slight interruptions, and without any
specified contract for her work, until about tlie year 183G, when she left
and went to New Hampshire. At the time she left there was no settlement
made between her and the defendant relative to her labor, nor was there
1 4 Pick. 217.
CHAP. IV.] ANDRUS V. FOSTER. 347
any talk of pay, or settlement, between them, and she did not then expect
again to i-cturn and reside in his family. While she continued to reside in
the family of the defendant, who was a farmer, she was able to do as much of
most kinds of work ordinarily carried on in a farmer's family, as girls in
general. She continued to reside in New Hampshire until February, 1841,
when at the request of the defendant, she returned, and worked for him
and in his family, until about three weeks before her intermarriage with the
plaintiff Audrus, — which took place January 12, 1842.
On the hearing before the auditor the defendant objected to the compe-
tency of the plaiutifl["'s wife as a witness ; but, she being a party of record
in the action, the objection was overruled and her testimony received.
The auditor reported that the labor of the plaintiff's wife for the defendant,
after she returned from New Hampshire, as above stated, amounted with the
interest, to $42.75. It farther appeared that the defendant delivered to her,
at the time she was married, and during the summer previous, various arti-
cles, including thirty dollars in money, amounting in the whole, as allowed
by the auditor, to the sum of $108.14 ; but the auditor reported that only
thirty dollars of that sum was delivered in payment for her labor during that
season, amounting, with the interest, to $34.20, and leaving a balance due
to her, for that season's work, of $8.55. The auditor farther reported, that,
if the defendant was liable to pay the plaintiff's wife for her services ren-
dered subsequent to her becoming eighteen years of age, and before she went
to New Hampshire to reside, there was due to the plaintiff, after deducting
the whole of the above mentioned sum of $108.14, the sum of $103.67.
for plaintiffs.
J. R. Skinner & L. B. Peck for defendant. *
The opinion of the court was delivered by
Redfield, J. The important question in this case is, whether a child, or
foster-child, remaining at the house of its parent after the age of majority,
and making that a home, the same as before, and assisting in the household
labors (the child being a daughter), is entitled to a pecuniary compensation
for her labor, the same as a stranger. We think it difficult to lay down any
general rule upon the subject. Every case will be more or less affected by
its own peculiar circumstances. The amount and kind of labor, the ability
and necessity of the parent, the course of dealing between the parties,
whether they keep accounts or not, whether the demand for compensation
is made early, or is delayed for many years after the relation began, or, as
in the present case, after it terminated, these, and many similar circum-
stances, will be significant indications of the expectation of the parties, at
the time of the relation subsisting, which should determine their rights.
The matter is, perhaps, as well summed up by Chief Justice Shaw, in Guild
V. Guild,^ as it can be. " Such a continued residence of a daughter may,
indeed must, be regarded under one of these three aspects ; She may be a
1 15 Pick. 129.
348 ANDRUS V. FOSTER. [CHAP. IV.
servant, or housekeeper, expecting pecuniary compensation for services ; or
she may be a boarder, expecting to pay pecuniary compensation for accom-
modations and subsistence ; or she may be a visitor, expecting neither to
make nor pay compensation. Perhaps it might be safe to consider the latter
predicament as embracing the larger number of cases."
This would lead us to the same conclusion to which the court came in the
case of Fitch v. Peckhani's Executrix.^ The rule there laid down by the
Chief Justice is, that the law in such cases will not ordinarily imply a prom-
ise on the part of the parent to make pecuniary compensation for the child's
labor; or on the part of the child to make such compensation for her board.
If the child, in such circumstances, bring suit for pay, it is incumbent upon
her to show, that, at the time, it was expected by both parties that she
should receive such compensation, or that the circumstances under which
the services were performed were such, that such expectation was reasonable
and natural.
In fact, I apprehend the circumstances of each case will usually remove
all doubt of the expectation of the parties at the time. In the present
case the plaintiff's wife had been brought up from a child by the defendant.
At the time she became of age the defendant told her she was free to leave
him, if she chose ; if she remained with him and did well, he would do
well by her. This was in 1829 or 1830, and she continued to reside with
defendant until 1836, and labored most of the time. "She lived in the
family as a member of it, and was uniformly treated as before she became
of age." Neither party kept any account against the other ; the plaintiff's
wife had what she needed for her support, as before, and when she left,
neither party expected her to return to reside any more with defendant.
^No settlement was made, and no claim for compensation made, until after
the intermarriage of the plaintiffs, 12th January, 1842. About the first of
February, 1841, she i-eturned to live with the defendant at his request, and
worked for him until about three weeks before her marriage. During this
time the auditor estimates her services at $37.50, and reports that the
defendant furnished her with money and other things, such as she needed
for housekeeping, to the amount of $108.14. The auditor farther reports,
that $30 only of this last sum was paid to go towards the last term of
labor, which would leave a balance in the plaintiff's favor, upon the last
service, of $8.55, including interast.
In regard to the first term of service, or residence, after the plaintiff's
wife became of age, it is very obvious that neither party expected she was
to receive any other pecuniary compensation than what defendant's gener-
osity might prompt him to give. But in regard to the latter, it seems
different. There is nothing which would induce us to doubt that compen-
sation was expected. The only wonder is, that, when the defendant delivered
during that term, he should not have first paid his debt, and left the
1 IG Vt. 150.
CHAP. IV.] hosteller's appeal. 3-19
balance to go upon the score of gratuity, or generosity. ]\Ien are very likely
to meet their debts first, and then discharge the more imperfect obligations.
And it would seem that the auditor may have arbitrarily applied one certain
item of $30 (money) towards the last services, upon the mere supposition
that that would best meet the moral equity of the case. Be that as it may,
it is his province to decide the facts ; and, as they stand, the plaintiffs are
entitled to judgment for the sum of $8.55. From the abstract in the Law
Ma'-'azine, No. 5, April, 1844, p. 16G, it seems that the Supreme Court of
Pennsylvania have recently had this subject under consideration, and have
come to the same determination as here made, which, in eveiy view of the
case, seems most just and reasonable.
Judgment of the County Court reversed, and judgment for the plaintiffs
for $8.55.
HOSTELLER'S APPEAL.
In the Supreme Court of Pennsylvania, January Term, 1858.
[Reported in 30 Pennsylvania State Reports, 473.J
Appeal from the Orphans' Court of Monroe county.
This was an appeal by Philip Mosteller from the decree of the Orphans'
Court, in the matter of the account of the said Philip Mosteller and Peter
Mosteller, administrators of the estate of William Mosteller, deceased.
William Mosteller died intestate, on the 28th September, 1844, and
letters of administration upon his estate were granted to the accountants.
Before the auditors, Peter Mosteller, one of the accountants, claimed a
credit for $500, for work, labor, and services rendered to his ftither, the
intestate, while a member of his family, for six or seven years after he
arrived at full age. This claim was contested by the heirs ; and the
auditor's report allowing the said Peter Mosteller $450 for his services,
having been confirmed by the court, this appeal was taken.
H. Green for the appellant.
/. M. Porter and Af. Goepjj for the appellee.
The opinion of the court was delivered by
Thompson, J. The principle of the exception in this case is so fully
embraced by the adjudications in Walker's Estate,^ Hack v. Stewart ; ^
Candor's Appeal ; ^ Sanders v. Waggonseller ; * Hertzog's Administrators v.
Hertzog ; ^ and Lynn v. Lynn ;^ that it is only necessary to refer to them as
concluding the contest here.
The appellee's claim against his father's estate was for work done on the
farm, while living with him, during six or seven years after he came of age.
1 3 R. 243. 2 8 Barr, 213. 3 5 W. & S. 516.
* 7 Harris, 251. ^5 Casey, 465. ^ 5 Casey, 369.
350 TURNER 2". WEBSTER. [CHAP. IV.
There was no evidence that the work was done under a contract of hiring
preceding it, and the only testimony on the essential point was given by
John Lesh, a witness for the appellee, before the auditor, who detailed a
conversation between him and the intestate, some four or five years before,
in which he says, " The old man said he would like if Peter w^ould take the
lower place, at what he paid for it. He said, ' Be sure, we have put a barn
on the place, but we can fix that another way.' I think he said they could
fix it towards pay for work : the land he should have for what they paid.
I understood him, that he owed Peter for wages."
As the law requires a hiring to be proved, to entitle a son to wages from
a father with whom he remains after arriving at age, and who lives and
works on the farm aS he did before, and demands that the evidence of the
contract " be clear, distinct, and positive," as was said in Candor's Appeal,
we may add, in the language of that case, that, in every ingredient, we
think the proof deficient in this case. There was nothing to aid this soli-
tary scintilla of evidence, if it amounted to that, in raising even a proba-
bility that there was a contract of hiring between the father and son.
There was no keeping of accounts for work between them, — no settlements,
or reckonings, or payments of money, or conversations about it. AVhile,
on the other hand, there was much evidence to show that Peter did not
consider himself as a hired hand.
The point that there is no implied contract arising from the performance
of work by a son for his father, while living at home as one of his family,
no matter what his age, that he will be paid for it, and that, where a claim
for wages is made, it can only be successful when there is a contract, express,
clear, distinct, and positive, has been so often announced by this court, that
we cannot but think it is time it should be considered as settled and at
rest. Strangely enough, however, it seems to be overlooked, and we still
meet it among the subjects of contest. The court erred in confirming the
auditors' report.
Decree reversed at the costs of the appellee, and the report confirmed, after
deducting $450 allowed Peter Mosteller, the appellee, as wages.
W. F. TURNER & W. E. OTIS v. 0. M. WEBSTER.
In the Supreme Court of Kansas, July Term, 1880.
[Reported in 24 Karisas Reports, 38.]
Action brought by Webster against Turner and another, partners, to
recover for ser"vices rendered the defmdants. — Trial at the Jattuaryi^grm, "
l87'.),"or~thc"PiMTict C'onrtrand \'gi-dict and judgment for ])laiutiffL^ Tlie
defendants bring the case to this court. The facts are stated in the opinion.
CHAP. IV.]
TURNER V. WEBSTER.
351
J. D. McCue for plaintiffs in error.
Hill d' Broadhead for defendant in error.
The opinion of the court was delivered by
Brewer, J. In an action commenced by plaintiffs in error, an attachment
was issued, placed in the hands of the sheritf, and by him levied upon cer-
tain mill property. Pending the attachment proceedings, the_shcriff, under
direction of plaintiffs in error, employed defendant in error to watch the
property ; and this action was brought by defendant in error, plaintiff below,
to'recover for such services. That the sheriff was authorized by plaintiffs
in error to employ defendant in error, and that the latter performed the
services, are conceded facts. The dispute is as to the compensation.
Webster claims that the conti-act price was three dollars per day, and that
it was worth^OTat amount ; while Turner k Otis say that they authorized
the sheriff to contract for only one dollar and a half a day, and the slieriff
says that that was all he promised to pay. The misunderstanding seems
to have arisen in this way : After the attachment, Turner <^ Otis requested
the sheriff to find some one to guard the mill. Meeting Webster, he asked
him what he would undertake the job for. He replied, one dollar and a
half a day, and nights the same. The sheriff understood him to say and
mean, one dollar and a half for each day of twenty-four hours, while plaintiff
meant that amount for a day of twelve hours, and the same for the night
time, or three dollars for every twenty -four hours. The sheriff reported the
offer to Turner & Otis as he understood it, and they, after some hesitation,
told him to accept the offer and employ Webster. Without further words
as to the price, the sheriff gave the key of the mill to Webster and told
him to go ahead. Now the contention of plaintiffs in error is, that the case
turns on the law of agency ; that they never personally employed Webster ;
that the sheriff was only a special agent with limited powers, only author-
ized to bind them by a contract to the amount of one dollar and fifty cents
per day of twenty-four hours; that Webster is chargeable with notice ofj
the extent of the sheriff's authority, and can enforce the contract as against
the plaintiffs in error to the extent only of such authority. For any contract)
beyond that amount, the special agent binds himself alone, and not the
principal. On the other hand, the defendant in error contends thatjwhere
services are contracted for and renderedTand no pncalsSpnlated^JJieJaw
awards reasonabTe"compensation therefor, and that whereJhereJs_Ajnisun^
derstanding as to the price, the one party understaiidingJt_atjQne.^sum-and
the other at a different, there is no stipulation as to ^he_2r[ce, and that it
makes no difference whether the contract be madc^hrough anjigent or with_
thepriucipal directly. In the case at bar, he contends that it is immaterial
that the conversation and misunderstanding were with the sheriff, tlie agent,
and that the rule is just the same as though the talk and misunderstanding
had been with Turner & Otis personally.
We think the case rests upon the propositions advanced by the defendant
y-l^/V^-t^^^^ i-^-wt-
A-v-^f'
<>^ /^-tMt-l.
p^^/*^.
/TAs^
352 TURNEE r. WEBSTER. [CHAP. IV.
in error. It will not be qucstioiicd^lint, where the minds of two contracting
parties do not come together_u]wiiJiic niattciLoTprice or compensation, but
do upon all other mattei^f the contract, and the contract is th_ereupon
pertbrmed, the lawliwards a reasonr.ule pricc_or compensation. Thus, where
"sEingles were sold and delivered at $3.25, but there was a dispute as to
whether the 83.25 was for a bunch or for a thousand, it was ruled, tliat
unless both parties had understandingly assented to one of those views,
there was no special contract as to price. Greene v. Bateman.^ It is said
by Parsons, in his work on Contracts, vol. 1, p. 389, that "there is no con-
tract unless the parties thereto assent ; and they must assent to the same
thing, in the same sense." Here, Webster never assented to a contract
to work for $1.50 a day. He agreed to do a certain work, and did it ; but
his understanding was, that he was to receive $3.00 per day. Turner &
Otis employed him to do that work, and knew that he did it ; but their
understanding was, that they were to pay but $1.50 a day. In other words,
the minds of the parties met upon everything but the compensation. As
to that, there was no aggregatio mentium. What, then, should result]
Should he receive nothing, because there was no mutual assent to the com-
pensation ] That were manifest injustice. Should his understanding bind
both parties 1 That were a wrong to them. Should theirs control 1 That
were an equal wrong to him. The law, discarding both, says a reasonable
compensation must be paid. So that if the negotiation had been between
the parties directly, and this misunderstanding had arisen, the rule of rea-
sonable compensation would unquestionably have obtained. Now. how
^ I does the law of agency interfere'? The proposition of law advanced_b;_
TvcrCMa^,^^ counsel for plaintiff in error, that ^special agent binds his principal to the
'' extent onlyof thejiuthority given, ancnnmself by any Jjrom'se in excess, ia_
^ >-^%J;,^ X Hear! BuFlhe agentjnade no promise in excess of his authority. He_
-Ho^t^-^ . promised that which he was authorizedhtojjromise. Because the other party
misunderstood the extent"o? the promise, is surely no reason for holding
the agent bound for more than he did in fact promise. ^The^gent has rights
as well as the principal. The work is not done for his benefit. He Jiai.
discharged his agency in good faith, and to the best of his abijity^ Why
should" he be mulcted m any sum on account of the misunderstanding of
the party with whom he contracted ] If compensation were given on the
basis of his i)romise, then, if his promise was in excess of his authority, he
should be responsible for the excess ; but where the promise is ignored, and
compensation given on the basis of value alone, he should not be chai-ged
with the excess of such value above his authority. An agent is responsible
for good faith. That is not questioned. He docs no^jnsurc, cither to his
principaLorJlic oppositcjjarty. Acting in good faith and to thcjjcst of liia
ability, we can see no reason for making him responsiV)le for any mere mia-
understanding. Justice is done to alT j)artics byTghormg any promise or
' 2 \Voo(H). & M. 239.
CHAP. IV.] irOUCK V. IIOUCK. 353
understanding as to compensation, and giving to the laborer reasonable
compensation for the work done, and requiring the party receiving the
benefit of such work to pay a just and reasonable price therefor.
The case was submitted to the jury upon this basis, and while the in-
struction asked by plaintiffs in error and refused was unquestionably
good law in the abstract, and while some criticism might fairly be placed
upon one of the instructions given, and upon the answers of the jury to
two special questions, we think the main question was fairly presented, and
that no error appears justifying a reversal of the judgment, and it will be
affirmed.
All the Justices concurring.
HOUCK'S EXECUTORS v. HOUCK.
In the Supreme Court of Pennsylvania, February 27, 1882.
[Reported in 99 Pennsylvania State liepoiis, 552.]
February 7th, 1882. Before Sharswood, C. J., Mercur, Gordon, Pax-
son, Trunkey, Sterrett, and Green, JJ.
Error to the Court of Common Pleas of Chester county : of January
Term, 1882, No. 227.
Assumpsit, by Jacob Houck and Anne Houck, his wife, against Hiram
Houck and Jacob Houck, executors of the will of Jacob Houck, deceased,
"for work, labor, and services performed by the plaintiff at the special
instance and request of the said Jacob Houck, deceased." The narr. also
contained a count for " wages or salary of the said Anne Houck ... as
the hired servant of the said Jacob Houck, deceased." Pleas, non assump-
sit ; non assumpsit infra sex an7ios ; payment ; payment with leave, etc. ;
and set-off.
On the trial, before Futhey, P. J., the facts appeared to be as follows :
The plaintiff, Anne Houck, lived with her parents, Jacob Houck, Sr., and
Mary Houck, on their farm, performing household work, and taking care of
her parents, both of whom were old and diseased. In 1878 she married
Jacob Houck (her cousin), who lived on the farm as a hired hand. She
and her husband continued to live on the farm after their marriage in the
same manner as before, for about two years, until her mother's death, when
they moved away. Her father died about a year and a half later. By his
will Anne was left an equal share with his other children. About two
months after his death Anne made a demand on his executors for the pay-
ment of wages as a domestic servant, and for nursing her mother, for a
year and three months prior to her mother's death. This demand being
refused, this suit was brought. No express promise of payment for services
was shown.
VOL. II. — 23
354 noucK v. noucK. [chap. iv.
The defendant presented the following points : —
1. The relationship of the parties is such that under the evidence the
jury must find for the defendants. Refused.
2. The time which elapsed after the alleged claim accrued, and before
any demand was made, such that the presumption of law, under the facts
in this case, is "either that the wages have been paid, or that the services
were performed on the footing that no payment was to be made ; " and the
jury must find for the defendants. Answer, In answer to this point I
instruct you that the time which elapsed after this alleged claim accrued,
and before any demand was made, is evidence to be considered by the jury
iu determining whether the presumption of law has been rebutted, — that
the services were presumably to be paid for; and also as having a bearing
upon the question as to whether any payment was originally contemplated
by the parties, and whether or not any payment has been already made.
3. Under the evidence in the case, the verdict must be for the defend-
ants. Answer. I cannot affirm this proposition. I have submitted the
facts to the jury for their consideration.
Verdict and judgment for the plaintiffs for $246. The defendants took
this writ of error, assigning for error the answers to their points, as above.
Wrn. M. Hayes for the plaintiffs in error.
R. E. Monaghan for the defendants in error.
Mr. Justice Paxson delivered the opinion of the court, February 27th,
1882.
There is no merit in this case ; yet if the law is with the plaintiffs below,
the judgment must stand. It was a suit brought against the estate of the
wife's father, to recover compensation for the services of the wife for a
period of about one year and three months. Annie Houck, one of the
plaintiffs, resided with her father as a member of his ftimily, and assisted
in the work of the house. She had two children prior to her present mar-
riage, who were also a part of the family, and, as the evidence shows, sup-
ported mainly by her father. She was married to Jacob Houck, plaintiff,
in October, 1878. At the time of said marriage, and for some time prior
thereto, the said Jacob Houck lived with her father as a farm hand at the
wages of $10 per month. This arrangement continued for about one year
and three months after the marriage, and until the death of old Mr. Houck's
wife, when the plaintiffs moved away. During this period the plaintiff,
Jacob Houck, received his wages regularly, and no part of the present
claim is for his services. The plaintiff, Annie Houck, continued as maid of
all work ; and particular stress is laid upon the fact, that she acted as nurse
to her mother, who was then, and had been for many years, aftlicted with
a cancer, of which she died after much suffering, in January, 1880. There
is no doubt the services of the daughter during this period were efficient
and faithful, and to some extent of an unpleasant nature to perform. They
were no more, however, than every daughter living with a mother is in
CHAP. IV.] IIOUCK V. IIOUCK. 355
aifection and duty bound to perform, and were not such as the law will
imply a promise to compensate. Indeed, it was conceded by the court
below, and by the counsel upon the argument, that the wife could not re-
cover, as there was no evidence of any contract to pay for the services. It
was urged, however, that after the marriage the services of the wife be-
longed to her husband, and that, inasmuch as he was a plaintiff in the
action, he was entitled to recover. No authority was cited in support of
this proposition, and I apprehend none can be found. The suit was
brought, as before observed, by the husband and wife for the services of
the latter. The learned judge ruled that the joinder of the wife was sur-
plusage, and that the husband could recover as if this suit had been
brought by him alone. We do not attach much weight to the fact tliat
the wife is a co-plaintiff. That would be sticking in the bark. We rule
the case upon the broader principle that as the wife, in the absence of an
express contract, cannot recover, the husband has no higher right. Wlicn
the plaintiffs were married, the wife was engaged in performing services for
her parents, which the law raised no implied promise to compensate. He
then had his option to dissolve that relation, or insist upon an express con-
tract. He did neither. He continued to work on the farm as before, at
his accustomed wages, and the wife continued in the performance of her
services to her parents. There was no change of any kind. The elder
Houck had no notice, that upon the day after the marriage, his daughter's
services to her sick mother were no longer rendered from a sense of filial
duty, and in consideration of past and present favors, but as a matter of
business, with a debtor and creditor account. Nor was any such notice
ever given him. So far as the evidence shows, there was no claim upon
him for compensation, nor upon his estate, until some time after his death.
If, therefore, the husband permitted his wife, after marriage, to continue in
the service of her father precisely as before, he is as much precluded from
recovering compensation as the wife would be.
Aside from this, if we disregard the relation of parent and child, and
substitute that of master and servant, the recent case of McConnell's Ap-
peal ^ is directly in the way of the plaintiffs. It was there held that " In
this country (as in England) where a person serves in the capacity of a
domestic servant, and no demand for payment of wages is made for a con-
siderable period after such service has terminated, the inference is, either
that the wages have been paid, or that the service was performed on the
footing that no payment was to be made."
This, as was stated in the case cited, is a presumption of fact, and liable
to be rebutted. There was not a particle of evidence in this case, to rebut
this presumption. Old Mr. Houck was in circumstances that enabled him
to pay ; the fact was conceded that the husband had been regularly paid
his wages as a farm hand up to the time they left. Yet, as before stated,
1 1 Out. 31.
356 KNEIL V. EGLESTON. [CHAP. IV.
no demand appears to have been made for the services of the wife, either
during the period of such service, at the time they went awa>, or after-
wards and during the lifetime of ]Mr. Houck, the elder. So fjir from the
presumption referred to having been rebutted, the evidence leaves the
stronf^ impression that the claim was an afterthought, and an attempt, after
the death of the defendant's testator, to gain a larger share of his estate,
and justifies the remark of Lowrie, J., in Lynn v. Lynn : ^ " Here is another
claim tliat ought to be charged to the account of family relationship. . . .
Causes of this character are among the most odious that courts have to
deal with."
The claim in this case is particularly odious, in view of the peculiar cir-
cumstances under which the wife and her two children were cared for and
sheltered in her father's house.
All of the defendant's points should have been affirmed.
Judgment reversed.
HATTIE A. KNEIL, Administratrix, v. FRANCIS EGLESTON,
Administrator.
Lv THE Supreme Judicial Court of Massachusetts, October 24, 1885.
[Reported in 140 Massachusetts Rc2)orts, 202.]
Contract, in two counts, by the administratrix of the estate of Waitey
Ann Noble, against the administrator de bonis non with the will annexed
of the estate of Augustus Noble. The first count was for money lent, and
the second count was for money had and received. ~
At the trial in the Superior Court, without a jury, it appearing upon the
reading of the papers, and from the statements of counsel, that Augusti^is
Noble and Waitey Ann Noble in their lifetime were husband and wife, and
that this action was brought to recover from the husband's estate a sum of
money wliich he received from his wife a few months before his death, upon^
his promise to return it, or a like sum, to her in a short time, Rockwell, jLj
without hearing any evidence, ruled that the action could not be niain-
taTned on either count of the declaration ; and ordered judgment for the
defendant. Tlie pTaintiB* alleged exceptions.
A. M. Copeland for the plaintiff.
H. Fuller for the defendant.
Devens, J. We do not perceive how, consistently with well-settled priii-
t^i fA^^ f*.*^t( ciples, the plaintiff in this case can recover. While, by statute, the wife
^ci^ v*-aylU. may make contracts in the same manner as if she were sole, no authority
^y'i^4Ui( 'i^tj^ has been given by which husband and wife may make contracts each with
\^ ^ <rM**.. the other. "^ Their legal incapacity thus to contract remains as at common
1 5 Ca.scy, 369. 2 st. 1874, c 184, § 1; Pub. Sts. c. 147, § 2.
CHAP. IV.] KNEIL V. EGLESTON. 357
law. At law, it has been repeatedly decided in this Commonwealth that a
promissory note, or any other personal contract, made between the husband
and wife, is absolutely void. Ingham v. White ;^ Fowle v. Torrey.'* Acon-
tract with the \vife for tlie payment of money byj:he husband js a millity,
and his retention of the money is not a conversion. Bassett v. Bassett.^
Even^where a wife transferre(Far^'omissorynciofe^o"a third person, which
had been made to her by her husband, so that the mere disability to sue
arising out of the marital relation was removed, such person could not
maintain the action. Ingham v. White.^
In the case at bar, the fact that the wife survived the husband could not
make that a good contract wliich was originally a nullity. Butler v. Ives *
is quite distinguishable, the contract there considered being valid in its
inception.
The plaiutifiF contends tliat, under her declaration, which contained two
counts, one for the loan of money, and the other for money had and re-
ceived, the latter permitted the court to deal with the transaction on equit-
able principles; and that the pi*esiding judge erred in declining to receive
evidence as to the transaction. But the presiding judge did not decline to
receive evidence ; he ruled, simply upon the statement of counsel, that the
husband received the money sued for " a few months before his death, upon
his promise to return it, or a like sum, to her in a short time." The plain-
tiff did not express any wish to prove any case under the second count,
except as it might be sustained by proof of this statement, which was ap-
plicable to each count. By this no evidence was shown upon which any
trust could have been raised in the plaintiff's favor, if a trust could properly
have been dealt with under the count for money had and received. No
property of hers had passed into her husband's hands under any circum-
stances which would authorize any inference that it was to be held or kept
as her separate property. The relation which they had established with
each other was that of borrower and lender simply, and the contract they
had thus assumed to make was a nullity. Fowle v. Torrey.^
It has indeed, been held that, where one renders service or conveys prop-
erty as the stipulated consideration of a contract within the statute of
frauds, if the other party refuses to perform and sets up the statute, the
value of such service or property may be recovered. The obligation which
would arise from the receipt or retention of value, to return or pay for the
same, is not overridden, because the words of a form of a contract which
did not bind the party repudiating it were uttered at the time. Bacon^.
Parker.^ Between parties competent to contract, it is reasonable to infer
that the party failing to perform that which he had agree J to do, and yet
which he might lawfully dp, promised that, if he avaHedrhlmselT oflils riglTt
oFrescission, he would return that which he received ; and that the value
1 4 Allen, 412. ^ 135 Mass. 87. ^ 112 Mass. 99.
* 139 Mass. 202. ^ 137 Mass. 309.
t--7l--«> V
.^ -"h^^VC trv^.^^^ -w~ Ot-,^ <>»^%^ yC^^ .
t
358 COOPER V. COOPER. [CHAP. IV.
jtyp.pivpH <ir rpfninpri hj hitn was SO received only on these terms. In Bacon
V. Parker, the parties were conipeteut to contract with each other ; but the
inference that, if one contract was repudiated, another must be inferred,
could not arise where parties were not competent to make any contract.
Exceptions overruled^
MAEY J. COOPER v. JOHN F. COOPER et ah, Admrs.
In the Supreme Judicial Court of Massachusetts, September 5, 1888.
[Reported in 1-17 Massachusetts Reports, .]
Coxtract to recover for services as housekeeper for defendant's intestate.
Trial in the Superior Court, before Bacon, J., who directed a verdict for the
defendants ; and the plaintiff excepted. The facts appear in the opinion.
S. B. Allen for the plaintiff.
W. B. French for the defendants.
"VV. Allen, J. The plaintiff and James "VV. Cooper intermarried in the
year 1869, and lived together as husband and wife until his death in 1885.
After his death the plaintiff learned that a former wife, from whom he had
not been divorced, was Tmng, and brought this action of contract against
hisadiiiinistrator to recover for work and labor performed by her as house-
kecper while living with the intestate^ The courtcorrectly ruled that when
the parties lived together as husband and wife there could be no implied
i' promise by the huslmid^to pay for sucE~work. The legal Tetatious of the
'parties did not forbid an express contract between them, but their actual
I relations and the circumstances under which the work was pp.rformgdjjiie^-
^ tived any implication of an agreement, or promise, that it should be paid
, ~ioY. Kobbms v. Potter.'' ^
The case at bar cannot be distinguished from that cited, unless upon the
grounds that the plaintiff believed that her marriage was legal, and that the
intestate induced her to marry him by falsely representing that he had been
divorced from his former wife. But the fact that the plaintiff was led by
mistake, or deceit, into assuming the relation of a wife, has no tendency to
show that she did not act in that relation ; and the fact that she believed
herself to be a wife, excludes the inference that the society and assistance
of a wife which she gave to her supposed husband was for hire. It shows
tliat her iutention in keeping his house was to act as a wife and mistress of
1 Such a claim can be enforced in erjuity. Woodward v. Woodward, 3 DeO. J. & S.,
672. And a payment of such a claim by the husband, if not made witli a view to hin-
derinfj, delaying, or defrauding creditors, is valid as against creditors. Medsker v. Bone-
brake, 108 U. S. 66 ; Atlantic National Bank v. Tavener, 130 Mass, 407 ; Jaycox v.
Caldwell, 51 N. Y. 395. — Ed.
2 11 Allen, 588; .s. c. 98 Mass. 532.
h^
CHAP. IV.] . COOPER V. COOPER. 359
a family and not as a hired servant. There was clearly no obligation to pay
wa^es arising from contract ; and the plaintiff's case is rested on the ground
that there was an obligation, or duty, imposed by law, from which the law
raises a promise to pay money upon which the action can be sustained.
The plaintiif's remedy was by an action of contract for breach of promise
to marry, or, if she was induced to marry by false representations, by an
action of tort for the deceit. Blossom v. Barrett.^ Her injuiy was in being
led by the promise or the deceit to give the fellowship and assistance of a
wife to one who was not her husband, and to assume and act in a relation
and condition that proved to be false and ignominious. The duty which
the intestate owed to her was to make recompense for the wrong which he
had done to her. It is said that from this duty the law raised a promise
to pay her money for the work performed by her in housekeeping. The ob-
ligation to make compensation for the breach of contract could be enforced
only in an action upon the contract. The obligation to make recompejise
for the injury done by the tort was imposed by law and could be enforced
only in an action of tortj__it_was not a debt or duty upon^-hich^jthe jaw^
raised a promise which would support an action of contract. The same act \ ^/zCc.^^ z^£zr
or transaction may constitute both a cause of action in contract and m
tort, and a party may have an election to pursue either remedy ; and in ^
that sense may be said to waive^the tort and sue in contract. But a right
■Of^ctloii^n contract ciinnot be created by waiving a tort, and the duty to
pay damages for a tort does not imply a promise to pay them, upon which
assumpsit can be maintained. Jones v. Hoar ; '^ Brown v. Holbrook ; ^
Ferguson v. Carrington.* See also Metcalf on Contracts, 9, 10 ; Chitty on
Contracts, 87 ; Earle v. Coburn ; ^ Milford v. Commonwealth.^
But the objection to maintaining the plaintiff's action lies deeper. The
work andTabor never^ constituted a cause of acl,ion Tn tort. The plaintiff
could have maintained no action of tort against the intestate for withhold-
ing payment for the work and labor in housekeeping, or for, by false repre-
sentations, inducing her to perform the work without pay. The particular
acts which she performed as a wife were not induced by the deceit, so that
each would constitute a substantive cause of action, but by the position
which she was deceived into assuming, and would be elements of damage
in an action for that deceit. Labor in housekeeping was a small incident
to a great wrong, and the intestate owed no duty and had no right_to_single
that out and offer payment for it alone ; and the offer to do so might well I
have been deemed an aggravation of the injury to thejlaintiff.
We have been referred to Higgins v. Breen ' and Fox v. Dawson,® as deci-
sions contrary to the conclusion which we have reached. It does not appear
upon what ground the latter case was decided. The former was decided in
1 37 N. Y. 434. 2 5 pjek. 285. » 4 Gray, 102.
4 9 B. & C. 59, 5 130 Mass. 596. 6 144 Mass. 64.
' 9 Misso. 493. 8 g Martin, 94.
i^
<^
3 GO COOPER V. COOPER. [CIIAP. IV.
favor of the defendant, the admiuistrator, upon technical grounds, but the
question of his liability was considered. It was assumed that an action of
contract could have been maintained against the intestate for work and
labor, and the question discussed was whether the action would survive
against his administrator, and it was held that it would. Upon the evi-
dence in the present case we think that no action, certainly no action of
contract, for the cause of action declared on, could have been maintained
against the intestate. Even if the intestate had been liable in tort, we are
not prepared to assent to the proposition that an action of contract will lie
against an administratorlor aTtort oFTiis intestate for which no action of
contract could have been maintained against him.
In the opinion of a majority of the court, the entry must be
Exceptions overruled.
1
CHAPTER V.
KECOVERY OF MONEY PAID UNDER COMrULSION.i
SECTION I.
UNDER COMPULSION OF LEGAL PROCESS.
MOSES V. MACFERLAN.
In the King's Bench, May 19, 1760.
[Reported in 2 Burrow, 1005.]
Lord Mansfield delivered the resolution of the court in this case, which
stood for their opinion : " Whether the plaintiff could_recoYer against the
defendant in the presentform of action (an action upon the case for money
tad and receive^TTo^th^piaintiff 's use)^or whether he shoiild be obliged to
"Bring a special actiorTupon the contract and agreement between them."
It was an action_upoiL the_ease^hrQiight in. this_court_by the now plain-
tiff, Moses, against the now defendant, Macferlan (heretofQ^g plaintifLin the
Court of Conscience, againsjbjhe same Moses jiow^plaLntijfLhej-eX^formQney
h~ad and received to the use of Moses, the now plaintiff jn this court.
"~TBe~case, a^ It came^ut upon evicJence and without dispute at nisi prius
before Lord Mansfield at Guildhall, was as follows : —
It was clearly proved, that the now plaintiff, Moses, had indorsed to the
now defendant, Macferlan, four several promissory notes made~to "Moses
himself by one Chapman Jacob, for 30s. each, for value received, bearing
date 7th November, 1758 ; and that this was done in order to enable the
now defendant Macferlan to recover the money in his own name, against
Chapman Jacob. But previous to the now plaintiff's indorsing these notes,
Macferlan assured him " that such his indorsement should be of no preju-
dice to him ; " and there was an agreement signed by Macferlan, whereby
he (amongst other things) expressly agreed "that Moses should not be
liable to the payment of the money, or any part of it ; and that he should
not be prejudiced, or be put to any costs, or any way suffer, by reason of il /^ /
such his indorsement." Notwithstanding which express condition and'/
agreement, and contrary thereto, the present defendant Macferlan sum-
moned the present plaintiff Moses into the Court of Conscience, upon each
1 The chronological arrangement of cases has been departed from to some extent in
this chapter. — Ed.
-]'
.<-^.-~T~
362 MOSES V. MACFERLAN. [CIIAP. V.
of these four notes, as the iudorser thereof respectively, by four separate
summonses. Whereupon Moses (by one Smith, who attended the Court
of Conscience at their second court, as solicitor for him and on his behalf)
tendered the said indemnity to the Court of Conscience, upon the lirst of
the said four causes ; and ottered to give evidence of it and of the said
agreement, by way of defence for IMoses in that court. But the Court
of Conscience rejected this defence, and refused to receive any evidence in
proof of this agreement of indemnity, thinking that they had no power to
.ludge of it ; and gave judgment against Moses,_irpon the mere foot of his
indorsement (which he himself did not at all dispute), without hearing his
witnesses about the agreement " that he should not be liable ; " for the
commissioners held this agreement to be no sufficient bar tjo jthe^suit^n
their court ; and consequently decreed for the plaintiff in that court, upon
the undisputed indorsement made by Moses. This decree was actually
pronounced in only one of the four causes there depending ; but ^Moses's
agent (finding the opinion of the commissioners to be as above mentioned)
paid the money into that court upon all the four notes ; and it was taken
out of court by the now defendant Macferlan (the then plaintiff in that
court) by order of the commissioners.
All this matter appearing upon evidence before Lord Mansfield at 7iisi
^rius at Guildhall, there was no doubt but that, upon the merits, the
plaintiff was entitled to the money ; and accordingly a verdict was there
found for Moses, the plaintiff in this court, for 6/. (the whole sum paid into
the Court of Conscience), but subject to the opinion of the court upon this
question, " Whether the money could be recovered in the present form of
action, or whether it must be recoverea by an action brought upon the
special agreement only." "
DiTSaturday the 26th of April last
Mr. Morton, on behalf of the defendant ^Macferlan, moved to set aside
this verdict found for the plaintiff, and to have leave to enter up judgment
against the plaintiflF, as for a nonsuit.
And in order to show that the action was not maintainable in its present
form, he laid down a position, " that indebitatus assumpsit will not lie but^
where debt wUl lie : " it lies not upon a wager ; nor upon a mutual assump-
sit ; nor against the acceptor of a bill of exchange ; neither will it lie for
money won at play : for it will never lie but where debt will lie, and can
never he upon mutual promises. 1 Salk. 23, Hard's case, and Smith v.
Aiery ^ are expressly so in terms.
And to maintain debt, there must be either an express contract broken,
or an implied contract broken. But there is no contract either express or
implied " that Moses would have this cause of action against Macferlan ; "
Chapman Jacob was only to pay Moses the money when it should be
recovered by Macferlan. An indorsement of a promissory note is a just
1 6 Mod. 128.
SECT. I.] MOSES V. MACFERLAN. 363
cause of action : aud Macferlan recovered this money of Moses the indorscr
by judgment of a court of justice.
But this action " for money had and received to liis use " is not the
proper way of setting right the judgment of a court of justice.
This agreement could not repel the action before the Court of Conscience ;
it was only the subject of an action to be brought upon itself This appears
from the case of Beston v. Robinson, in Cro. Jac. 218 ; where Boston was
in execution upon a statute merchant at the suit of Eobinson ; and brought
an audita querela, and produced articles between him and Robinson as a
discharge ; which was holden not good to discharge him of the execution ;
but that his remedy was to have an action of covenant upon them. So iu
1 Bulstr. 152. Anon. ; by Williams and the rest of the judges, " if the
party be taken and imprisoned upon a judgment and execution, where he
has paid the money, he shall not have a supersedeas quia erronice, nor no
remedy, but only an audita querela ; aud upon promise of enlargement, and
not performing it, an action on the case only lieth for this, and no other
remedy."
Mr. A^orton, contra, for the plaintiff.
We have not misconceived our action ; we were not confined to bring an
action upon the special agreement, but were at liberty to bring this action
" for money had and received to our use," to recover this money unfairly
received by the defendant.
I do not agree to the position, " that assumpsit will not lie but where
debt will lie."
Iu the case of Astley v. Reynolds,^ this principle was settled, viz : " That
wherever a person has wrongfully paid money he may have it back again,
by this action for money had and received to his use." And yet in that
very case there was another remedy. And there was the consent of the
payer too.
So likewise, for money paid on a contract which is never performed.
So, on a wager (on a horse-race) against the stakeholder, after the thing
is completed and over.
And no inconvenience can arise : everything is done and finished in the
present case, and no writ of error lies to the Court of Conscience ; nor can
its judgments be over-haled.
The court, having heard the counsel on both sides, took time to advise.
Lord Mansfield now delivered their unanimous opinion, in favor of the
present action.
There was no doubt at the trial, but that upon the merits the plaintiff
was entitled to the money ; and the jury accordingly found a verdict for the
6^., subject to the opinion of the court upon this question, " Whether the
money might be recovered by this form of action," or " must be by an
action upon the special agreement only."
1 M. 5 G. 2 B. R. (V. 2 Strange, 915).
/I
!l
(^:.
3o-i MOSES V. MACFEKLAN. [CIIAP. V.
Many other objections, besides that which arose at the trial, have since
been made to the propriety of this action in the present case.
/•/ , The 1st ojjjectiou is, " That an action of debt would not lie hnrfi ; nni\
no assumpsit will lie where an action of debt may not be brought ; " some
ayings at nisi prius, reported by note-takers who did not understand the
force of what was said, are quoted in support of that proposition. Eut
ythere is no foundation for it.
It is much more plausTBTe to say, " That where debt lies an action upou
the case ought not to be brought." And that was the point relied upon in
Slade's case ; ^ but the rule then settled and followed ever since is, " That
U an action of assumpsit will lie in many cases where debt lieSj and in n^ttny
where it does not lie."
A main inducement, originally, for encouraging actions of assumpsit was,
" to take away the wager of law ; " and that might give rise to loose ex-
pressions, as if the action was confined to cases only where that reason
held.
2d Objection. " That no assumpsit lies except upon an express or implied
contract ; but here it is impossible to presume any contract to refund nlouey
which the defendant recovered by an adverse suit."
Answer. If the defendant be under an obligation, from the ties of natural
I i justice, to refund, the law implies a debt, and gives this action, founded,
y-T^l in the equity of the plaintiff's case, as it were upon a contract (" quasi ex
I / coniraau," as the Roman law expresses it).
This species of assumpsit (" for money had and received to the plaintifTs
use ") lies in numberless instances for money the defendant has received
from a third person ; which he claims title to, in opposition to the plaintiff's
right ; and. which he had by law authority to receive from such third
person.
3d. Objection. Where money has been recovered by the judgment of
^< £ /r a court having competent jurisdiction, the matter can never be brought
over again by a new action.
Answer. It is niostj^leariil.hat the jnants_of^a judgment can never be
over-haled by an original suit, either at law or in equity." Till the judg-
ment is set aside or reversed, it is conclusive, as to the subject-matter of
it71d^ir intents and purposes.
""But the ground of this action is consistent witli the judgment of the
Court of Conscience ; it admits the commissioners did riglit. They decreed
upon the indorsement of the notes by the pliiintiff, whicli indorsement ia
not now disputed. The ground upon whicli this action proceeds was no
defence against that sentence.
It is enough for us, that the commissioners adjudged "they had no
cognizance of such collateral matter." We cannot correct an error in their
proceedings ; and ought to suppose what is done by a final jurisdiction, to
1 4 Co. 92.
SECT. I.]
MOSES V. MACFERLAN.
36{
be right. But we think " the commissioners did right, in refusing to go
into such collateral matter." Otherwise, by way of defence against a
promissory note for 30s., they might go into agreements and transactions
of a great value ; and if they decreed payment of the note, their judgment
might indirectly conclude the balance of a large account.
The ground_^f_this_acti(2iLJs_not " that the judgment was wrong," but
" that (for a reason which the now plaintiff could not avail himself of against
that judgment) the defendant ought not in justice to keep the money,"
And at Guildhall I declared very particularly, " tliat the merits of a ques-
tion determined by the commissioners, where they had jurisdiction, never
could be brought over again in any shape whatsoever."
Money may be recovered by a right and legal judgment ; and yet the
iniquity of keeping that money may be manifest, upon grounds which could
not be used by way of defence against the judgment.
Suppose an indorsee of a promissory note, having received payment from
the drawer (or maker) of it, sues and recovers the same money from the
iudorser, who knew nothing of such payment.
Suppose a man recovers upon a policy for a ship presumed to be lost,
which afterwards comes home ; or upon the life of a man presumed to be
dead, who afterwards appears ; or upon a representation of a risk deemed
to be fair, which comes out afterwards to be grossly fraudulent.
But there is no occasion to go fuilher : for the admission " that, unques-
tionably, an action might be brought upon the agreement," is a decisive
answer to any objection fi'om the judgment. For it is the same thing, as to
the force and validity of the judgment, and it is just equally affected by the
action, whether the plaintiff brings it upon the equity of his case arising
out of the agreement, that the defendant may refund the money he re-
ceived ; or, upon the agreement itself, that, besides refunding the money,
he may pay the costs and expenses the plaintiff was put to.
This brings the whole to the question saved at 7iisi prius, viz : "Whether
the plaintiff may elect to sue by this form of action, for the money only ;
or must be turned round, to bring an action upon the agreement."
One sreat benefit which arises to suitors from the nature of this action
is, that the plaintiff needs not state the special circumstances from which
he concludes " that, ex aequo et bono, the money received by the defendant
ought to be deemed as belonging to him ; " he may declare generally " that
the money was received to his use," and make out his case at the trial.
This is equally beneficial to the defendant. It is the most favorable way
in which he can be sued : he can be liable no further than the money he
has received ; and against that may go into every equitable defence upon
the general issue : he may claim every equitable allowance ; he may prove
a release without pleading it ; in short, he may defend himself liy every-
thing which shows that the plaintiff, ex aequo et bono, is not entitled to the
whole of his demand, or to any part of it.
if-
f^
\J\\KLV^
\ flyv
366 MOSES V. MACFERLAX. [CHAr. V.
If the plaintiff elects to proceed in this favorable way, it is a bar to his
bringing another action upon the agreement ; though he might recover
more upon the agreement than he can by this form of action. And there-
fore, if the question was open to be argued upon principles at large, there
seems to be no reason or utility in confining the plaintiff to an action upon
the special agreement only.
But the point has been long settled, and there have been many prece-
dents ; I will mention to you one only, which was very solemnly considered.
It was the case of Dutch v. Warren.^ An action upon the case for money
had and received to the plaintiff's use.
The case was as follows : Upon the 18th of August, 1720, on payment
of 2G2/. 10s. by the plaintiff to the defendant, the defendant agreed to
transfer him five shares in the Welsh copper mines, at the opening of the
books; and for security of his so doing gave him this note: "18th of
August, 1720. I do hereby acknowledge to have received of Philip Dutch
262/. 10s. as a considerlition for the purchase of five shares ; which I do
hereby promise to transfer to the said Philip Dutch as soon as the books
are open, being five shares in the Welsh copper mines. Witness my hand,
Robert Warren." The books were opened on the 22d of the said month of
August, when Dutch requested Warren to transfer to him the said five
shares ; which he refused to do, and told the plaintiff " he might take his
remedy." Whereupon the plaintiff brought this action for the consideration-
money paid by him. And an objection was taken at the trial, " that this
action upon the case, for money had and received to the plaintifi''s use,
would not lie ; but that the action should have been brought for the non-
performance of the contract." This objection was overruled by the Chief
Justice, who notwithstanding left it to the consideration of the jury,
Whether they would not make the price of the said stock as it was upou
the 22d of August, when it should have been delivered, the measure of the
damages; which they did, and gave the plaintiff but 175/. damages.
And a case being made for the opinion of the Court of Common Pleas,
the action was resolved to be well brought ; and that the recovery was
right, being not for the whole money paid, but for the damages in not
transferring the stock at the time ; which was a loss to the plaintiff, and
an advantage to the defendant, who was a receiver of the difference-money,
to the plaintiff's use.
The court said, that the extending those actions depends on the notion
of fraud. If one man takes another's money to do a thing, and refuses to
do it, it is a fraud ; and it is at the election of the party injured, either to
attii'iu the agreement, by bringing an action for the non-performance of it,
or to disaffirm the agreement ah initio, by reason of the fraud, and bring an
action for money had and received to his use.
The damages recovered in that case show the liberality with which this
1 M. 7 (\. 1 (". B.
SECT. I.] MOSES V. MACFERLAN. 367
kind of action is considered ; for though the defendiint received from the
jjlaintiff 2G2^. lO.y., yet the dillerence-money only, of 175/., was retained by
him against conscience ; and therefore the plaintifl', ex cequo et bono, ought
to recover no more ; agreeable to the rule of the Roman law : " Quod
condictio indebiti non daUcr ultra, quam locupletior f actus est qui accepit."
If the five shares had been of much more value, yet the plaintiff could
only have recovered the 2G2/. 10s. by this form of action.
The notion of fraud holds much more strongly in the present case than
in that, for here it is express. The indorsement which enabled the de-
fendant to recover was got by fraud and falsehood for one purpose, and
abused to another.
This kind of equitable action to recover back money which ought not in
justice to be kept, is very beneficial, and therefore much encouraged. It
lies only for money which, ex cequo et bono, the defendant ought to refund :
it does not lie for money paid by the plaintiff, which is claimed of him as
payable in point of honor and honesty, although it could not have been
recovered from him by any course of law, — as in payment of a debt barred
by the statute of limitations, or contracted during his infancy, or to the
extent of principal and legal interest upon a insurious contract, or for money
fairly lost at play ; because in all these cases the defendant may retain it
with a safe conscience, though by positive law he was barred from recover-
ing. But it lies for money paid by mistake, or upon a consideration which
happens to fixil, or for money got through imposition (express or implied),
or extortion, or oppression, or an undue advantage taken of the plaintiff's
situation, contrary to laws made for the protection of persons under those
circumstances.
In one word, the gist of this kind of action is, that the defendant, upon
the circumstances of the case, is obliged by the ties of natural justice and
equity to refund the money.
Therefore we are all of us of opinion. That the plaintiff might elect to
waive any demand upon the foot of the indemnity, for the costs he had been
put to ; and bring this action to recover the 6/. which the defendant got
and kept from him iniquitously.
Rule. That the postea be delivered to the plaintiff.
368 MARRIOTT V. HAMPTON. [CHAP. V.
MARRIOTT V. HAMPTON.
In the King's Bench, May 20, 1797.
[Reported in 7 Term Reports, 269.]
The defendant formerly brought au action against the present plaintiff
for goods sold, for which the i)laintitf had before paid and obtained the
defendant's receipt ; but not being able to find the receipt at that time,
and having no other proof of the payment, he could not defend the action,
but was obliged to submit and pay the money again, and he gave a cog-
novit for the costs. The plaintiff afterwards found the receipt, and brought
this action for money had and received in order to recover back the amount
of the sum so wrongfully enforced in payment. But Lord Kenyon was of
opinion at the trial that after the money had been paid under legal process
it could not be recovered back again, however uncouscientiously retained
by the defendant, though the case of Moses v. Macfarlan ^ was referred to ;
and thereupon the plaintiff was nonsuited.
Gibbs now moved to set aside the nonsuit and to grant a new trial ; re-
lying on a subsequent case of Livesay v. Rider,^ where on a similar motion
the court held such an action maintainable. And he pressed for the opinion
of the court in order that the question might be settled.
Lord Kenyon, C. J. I am afraid of such a precedent. If this action
could be maintained I know not what cause of action could ever be at rest.
After a recovery by process of law there must be an end of litigation, other-
wise there would be no security for any person. I cannot therefore consent
even to grant a rule to show cause, lest it should seem to imply a doubt.
It often happens that new trials are applied for on the ground of evidence
supposed to have been discovered after the trial ; and they are as often
refused ; but this goes much further.
Ashhurst, J., of the same opinion.
Grose, J. It would tend to encourage the greatest negligence if we were
to open a door to parties to try their causes again because they were not
properly prepared the first time with their evidence. Of the general prin-
ciple there can be no doubt ; and though the last case cited seems to throw
some ambiguity upon it, yet some of the positions there stated' are so
entirely repugnant to every principle of law, that I liave loss difficulty in
disregarding the whole authority of it.
Lawuen-ce, J. If the case alluded to l)c law, it goes the length of estab-
lishing this, that every species of evidence wliich was omitted by accident
1 2 Burr. 1009. 2 p,. 22 Oco. 3, B. R.
8 Whicli his Lordship read from the- note of it.
SECT. I.] HAMLET V. KICHARDSON. 369
to be brought furwurd at the trial, may still be of avail in a new action to
overhale the former judgment; which is too preposterous to be stated.
Rule refused.
HAMLET AND Others v. RICHARDSON.
In the Common Pleas, January 31, 1833.
[Reported in 9 Bingham, 044.]
This was an action for money had and received, in which the plaintiffs
sought to get back a sum paid, as they alleged, to the defendant by mis-
take, in the course of some transactions arising out of a charter-party. It
appearedy-however, upon the trial of tl]is_cause, that the payment in ques-
tiou was made by the plaintiffs after, and in consequence of, the issuing of
a writ against them for the amount. The payment was proved to have
been made in the mouth of May, 18i:V7after process had been issued against
the plaintiffs, in the month of April preceding, for the purpose of recovering
this very sum, and after an appeai-ance entered to such process. Before
the writ was issued, the defendants in that action (the present plaintiffs)
had received letters addressed to each of them, stating the intention to sue
for the money now in question, in terms sufficiently explicit to call their
attention to the subject in dispute ; after which, the money claimed in that
action was paid.
But the jury having found a verdict for the plaintiffs, and also, that the
payment had been made without knowledge or reasonable means of knowl-
edge of the facts on which the demand had proceeded,
Jones, Serjt., Bonijjas, Serjt., with him, obtained a rule ni&i to set aside
the verdict.
Wilde, Serjt., contra. Car. adv. vult.
TiNDAL, C. J. Upon the motion to set aside the verdict for the plaintiffs
in this case, two points have been made ; first, that the verdict is against
evidence ; and secondly, that the payment made by the plaintiffs was a
payment made after, and in consequence of, the issuing of a writ against
them, and being a payment under compulsion of legal process, the money
paid cannot be recovered back. As to the first point, after full considera-
tion of the evidence in the cause, we think the jury have not drawn a right
conclusion from the facts proved before them ; but we hold it better not to
enter into a discussion upon the particular facts, in order that the case may
be laid before a second jury with the least possible prejudice against either
party.
The consideration of the second point becomes therefore unnecessary ;
but as it may be important for the plaintiffs to be acquainted with the
VOL. II. — 24
^X
370 HAMLET V. RICHARDSON. [CHAP. V.
opinion we have formed upon the hwv, as it applies to the facts given in
evidence on the former occasion, in order to reguhite the course of their
future proceedings, we shall state shortly such opinion. The payment was
proved to have been made in the month of May, 1827, after process had
been issued against the plaintiffs in the month of April preceding, for the
purpose of recovering this very sura, and after an appearance entered to
such process. Before the writ was issued the defendants in that action
(the present plaintiffs) had received letters addressed to each of them,
stating the intention to sue for the money now in question, in terms suffi-
ciently explicit to call their attention to the subject in dispute ; after which
the money claimed in that action was paid. We think this money was
paid under compulsion of legal process. In Marriott v. Hampton,^ it does
not appear to what precise point the action had been carried before the
money was paid, though, from the circumstance of a cognovit having been
given for the costs, it is probable the declaration had been delivered. But
the judgment of the court is expressed in very general terms, namely, that
"after a recovery by process of law, there must be an end of litigation."
In Brown v. M'Kinally,^ the payment made by the plaintiff in the former
action, which had been brought against him by the defendant, was a pay-
ment made after action brought, but in what stage of the action does not
appear. Lord Kenyon held the action not maintainable, for that to allow
it would be to try every such question twice. In ]\Iilnes v. Duncan," Mr.
Justice HoLROYD says, " if the money had been paid after proceedings had
actually commenced, I should have been of opinion that, inasmuch as there
was no ii:^ud in the defendant, it could not be recovered back." And as to
the case of Cobden v. Kendrick,* if it can be supported as to this point, we
think it can only be so on the ground of fraud in the defendant. We think
the rule of law is accurately laid down by Mr. Justice Holroyd ; and that,
as the money was paid in this case after the suing out process to recover
it, the defendants in the former action knowing the cause of action for
which the writ was sued out before they paid the money, and there being
no fraud on the part of the plaintiff in that action, it appears to us, that
no action is maintainable to recover it back. The rule for a new trial must
therefore be made absolute on payment of costs.
Rule absolute.
1 7 T. R. 269. 2 1 Esp. 279.
3 6 B. & C. 679. * 4 T. R. 432.
I
SECT. 1.1 THE DUKE DE CADAVAL V. COLLINS. 371
DON NUNO ALVAEES PEREIRA DE MELLO, DUKE DE
CADAVAL V. THOMAS COLLINS.
In the King's IJencii, April 27, 183G.
[Reported in 4 Adolphus ^ Ellis, 858.]
Assumpsit for money had and received, and on an account stated. Plea,
non assuvij)sit. On the trial before Lord Denman, C. J., in London, Feb-
ruary, 1835, it appeared that the plaintiff was a Portuguese nobleman, who
had been a member of the Portuguese Government under Don Miguel. In
July, 1834, the plaintiff arrived at Falmouth, with his family, from Por-
tugal. Soon after his arrival, he received a letter from the'lrefendant, dated
26th of Jidy, 1834, stating that he had claims on the government of Don
Miguel to the amount of 16,200/., for services performed and pay due, as
asserted ; but making no claim on the plaintiff individually.* The plaintiff
took no notice of this letter. On the 5th of August he was arrested at the
suit of the defendant, on a writ for 1 G,200/. against the plaintiff and Manuel
Viscount de Santarem. The affidavit was for 10,000/. and upwards for
work and labor. The plaintiff, who did not understand English, applied
to the Portuguese Vice-Consul at Falmouth, and had an interview, in his
presence, with the defendant, his brother, and an attorney, who attended
on behalf of the defendant ; and, after some negotiation, the following
memorandum was drawn up and signed : —
We, the undersigned, agree to the following conditions : —
First, his Excellency the Duke of Cadaval pays 500/. in lawful money of
Great Britain to Thomas Collins, as a payment in part of the writ issued in
London for 16,200/., and the remainder his Excellency to give bail imme-
diately ; to run the usual course of an action in the Court of King's Bench ;
both of us the undersigned to abide by the result ; the said 500/. to be
paid at nine o'clock to-morrow morning, for which Mr. Lake the consul is
responsible.
DuQUE DE Cadaval. .
Falmouth, 5th August, 1834. Thomas Collins.
The plaintiff was then released ; and, on the 6th of August, the following
agreement was signed by the parties : —
An agreement made and entered into, this 6th day of August, 1834,
between Thomas Collins, of Piatt Terrace, in the County of Middlesex,
Esquire, of the one part, and his Excellency the Duke de Cadaval, at
present residing at Falmouth, in the County of Cornwall, of the other part.
Whereas the said Thomas Collins did lately cause a writ of capias to be
issued out of His Majesty's Court of King's Bench at Westminster against
372 THE DUKE DE C.U)AVAL V. COLLINS. [CIIAP. V.
the said Duke do Cadaval aud one Manuel Viscount do Santarem, at the
suit of him the said Thomas Collins, for the sum of 1G,200/., aud whereas
the said Duke de Cadaval was, on the 5th day of the said month of August,
at Falmouth aforesaid, arrested and taken into custody by virtue of a war-
rant granted on the said writ of capias by the sheriff of Cornwall aforesaid,
aud whereas ^ the said Duke de Cadaval, not being at present prepared to
give the required bail to the said sheriff of Cornwall : and it is hereby
declared and agreed by and between the said Thomas Collins aud the said
Duke de Cadaval that, in consideration of the sum of 500/. of lawful British
money to the said Thomas Collins in hand paid by the said Duke de Cada-
val, at or upon the execution of these presents, the receipt whereof he doth
hereby acknowledge, he, the said Thomas Collins, doth hereby consent aud
agree that he, the said Duke de Cadaval, shall be forthwith discharged
from his said a^st, and shall not be taken or deemed liable to be taken
again into custody by virtue of the aforesaid warrant or otherwise, except
in execution ; and the said Duke de Cadaval doth for himself, his executors
and administrators, covenant, promise, aud agree to and with the said
Thomas Collins, his executors and administrators, that he will, within
twelve days from the date hereof, give bail to the action, according to the
form of the statute in such case provided, being in accordance with the
tenor of an agreement entered into between the said parties, bearing date
the 5th day of the said month of August (which agreement has been this
day destroyed, but is to be held in full force and vigor by these presents)
as follows, that is to say : " We, the undersigned," etc. [here the agreeraeut
of the 5th of August was set out.]
In witness whereof the said parties have hereunto set their hands, the
day and year first above written.
DuQUE DE Cadaval.
Thomas Collixs.
The plaintiff, at the time of the execution of this agreement, paid 500/.
to the defendant. The writ was set aside for irregularity by a judge at
chambers, on the 30th of August, 1834. A rule nisi for setting aside the
judge's order was obtained by the defendant in this court, but discharged
in Michaelmas term, 1834 ; and no steps had since been taken in that
action by the defendant against the plaintiff. No evidence was given, at
the trial of the present cause, of any debt due from the plaintiff to the
defendant ; and it was proved that the latter had taken the benefit of the
Insolvent Act in 1833, and that his schedule, though of a date later than
the greater part of the claims set up by him in his first letter to the plain-
tiff, made no mention of any such claims. It was objected, for the defend-
ant, that the money had been paid by the plaintiff voluntarily, and under
an agreement between the parties, and with full knowledge of the facts,
and could not, therefore, be recovered back in this action. The Lord Cuiep
1 Sic.
SECT. I.] THE DUKE DE CADAVAL V. COLLINS. 373
Justice directed the jury to find for the defendant, if they thought that he
believed himself entitled to sue the plaintiff in the first action, but other-
wise for the plaintiff. The jury found a verdict for the plaintiff, and stated
it as their opinion that the defendant knew that he had no claim upon the
plaintiff. In Easter term, 1835, Piatt obtained a rule to show cause why the
verdict should not be set aside, and a nonsuit entered, or a new trial had.
Sir John Campbell, Attorney-General, Kelly, and Alexander, who were to
have shown cause, were stopped by the court.
Piatt and Butt in support of the rule.
Lord Denman, C. .J. It is asserted that the principle of decision in
Marriott v. Hampton ^ has not been adhered to in this case. But that case
does not warrant the argument drawn from it. It does not decide that
money obtained under the compulsion of legal process can never be recov-
ered back ; but only that, after the defence in an action has failed, and
money has been recovered in the action, it cannot be recovered back iu
another action. This is the ground upon which the decision is put by Lord
Kenyon. He says, " After a recovery by process of law " — not extortion
— " there must be an end of litigation." And Grose, J., says, " It would
tend to encourage the grossest negligence if we were to open a door to
parties to tiy their causes again, because they were not properly prepared
the first time with their evidence." The question there arose, not upon
an extortion by legal process, but upon the want of means of defence in a
previous action, which means a party ought to have when such action is
brought. On the other hand, I certainly felt that there might arise, in
this case, an inconvenience from our allowing the plaintiff's claim, since
there may be another action for a malicious arrest. After the judgment in
this case, there will nevertheless be no bar to that action. We must, how-
ever, see whether there be anything to defeat the plaintiff's right here, if
the money be still his. For Mr.- Piatt has put the question in its true
form : Is it still the plaintiff's money 1 How is it shown not to be so 1
"Why, by striving to give effect to a fraud. That is the finding of the jury :
the arrest was fraudulent ; and the money was parted with under the arrest,
to get rid of the pressure. This case differs from all which have been cited
as being otherwise decided : in none of those was the bona fides negatived,
not even in Marriott v. Hampton ; i for, in default of evidence to the con-
trary, the party there might have believed the debt to be due. But here
the jury find that the defendant did know that he had no claim. The
property in the money, therefore, never passed from the plaintiff, who
parted with it only to relieve himself from the hardship and inconvenience
of a fraudulent arrest.
LiTTLEDALE, J. The casc of ]\Iarriott v. Hampton ' was different from
the present. There the plaintiff in the original action claimed a debt,
which the defendant asserted that he had paid, but he could not produce
1 7 T. R. 269.
374 THE DUKE DE CADAVAL V. COLLINS. [CIIAP. V.
the receipt ; and, finding he could not defend, he paid the money and gave
a cognovit for the costs. Afterwards he found the receipt ; and sued, in
order to recover hack what he had paid. But, as the money had been
originally recovered by legal proceedings, it was held that he could not
recover it back as money had and received. That was the ground on
which Lord Kenyon and Grose, J., proceeded. They considered that an
action did not lie to recover back that which had once been recovered under
a legal decision. But here there was no such recovery. The plaintiff was
arrested ; and the jury find that the arrest was merely colorable, and the
money was paid for time to get bail. The arrest must have been merely
colorable, since the debt was not inserted in the defendant's schedule. I
admit the difficulty which arises from the liability of the defendant to an
action for a malicious arrest : no doubt such an action would lie ; for, as
Collins knew that there was no debt, there is distinct malice. Still we can-
not prevent the plaintiflF from recovering back his money as money had and
received.
Pattesox, J. I think this verdict was right. I put the matter en-
tirely upon the special circumstances of the case. I admit, in general, that
money paid under compulsion of law cannot be recovered back as money
had and received. And, further, where there is bona fides, and money is
paid with full knowledge of the facts, though there be no debt, still it can-
not be recovered back. But here there is no bona fides, and on that I
ground my opinion. When a man sues to recover back money paid under
compulsion of law, it lies upon him to show that there w^as fraud. Has the
plaintiff shown that here] The jury find that the arrest was fraudulent,
in consequence, I suppose, of the debt not appearing in the schedule ; for,
if such a debt existed, the defendant was bound to insert it in the schedule,
under the act of parliament ; and the omission of it would have been a
misdemeanor severely punishable. The jury, therefore, concluded that the
defendant knew that the debt did not exist, and that he used the process
colorably. To say that money obtained by such extortion cannot be recov-
ered back, would be monstrous. Then the terms of the agreement form a
very strong circumstance. The defendant, having a man in custody for a
debt for which he knew that he had no claim, is to get the 500/., whether
he recover in the action or not ; for there is no provision for the defendant
refunding the money in case of his failure. Now suppose the plaintiff had
put in bail to the sheriff, instead of entering into this agreement, what
would the conseqiience have been 1 On application to my Brother Aldebson
the writ was cancelled, though perhaps on a paltry objection ; but the result
would have been, in the case supposed, that nothing would have got into
the pocket of the defendant. It would be a scandal to the law if this
money could not be recovered back.
Coleridge, J. I quite agree. Although the decisions liave gone as far
as they can go, yet I will not attemj)t to disturb them : and they are quite
SECT. I.] DE MEDINA V. GROVE. 375
consistent with the decision which we are now giving. Tt is clear that, if
money be paid with full knowledge of fticts, it cannot be recovered back.
It ia clear, too, that if there be a bona fide legal process, under which
money is recovered, although not actually due, it cannot be recovered back,
inasmuch as there must be some end to litigation. That is the substance
of the decisions. But no case has decided that, when a fraudulent use has
been made of legal process, both parties knowing throughout that the
money claimed was not due, the party paying under such process is not to
have the assistance of the law. If, indeed, the property were changed, it
would follow that the plaintiff" must fail ; but the defendant's counsel as-
sumed that. I rely on the position which is laid down in 1 Selwyn's Nisi
Prius, 89,^ " If an undue advantage be taken of a person's situation, and
money obtained from him by compulsion, such money may be recovered in
an action for money had and received." For this, Astley v. Reynolds'^ is
cited, in which the circumstances of compulsion were much less strong than
in the present case. My opinion, therefore, is founded upon the particular
circumstances of the case. When it is said that we are not to look to the
degree of hardship, so as to -depart from the legal prmciple, I agree ; but
here the particular circumstances make the law of the case. Here is a
foreigner, at a great distance from his friends, at a great distance from
London, ignorant of the law of England (though I do not rely upon that),
charged with owing a very large sum. Then, first, is not the payment
compulsory ? Next, is there hona fides ? According to the finding of the
jury, the defendant commits perjury, and uses legal process colorably to
enforce an unjust demand. I should have been sorry to find that our
hands were tied iu such a case. Rule discharged.
SOPHIA DE MEDINA v. GROVE.
In the Queen's Bench, February 14, 1846.
[Reported in 10 Queen's Bench Reports, 157.]
In De Medina against Grove, the plaintiff" sought to recover back from
Grove the excess of the sum levied by the sheriff over the amount actually
unsatisfied at the time of the execution. The declaration was in assumpsit
for money had and received. Plea : nan assumpsit. Particular of demand,
claiming 324Z. Is. M., being part of a sum of 32-5^. Is. which defendant ob-
tained from plaintiff" by means of an execution issued by him on November
2.3, 1843. The pleadings in De Medina v. Grove and others,^ and the
judgment of this court,* make any further detail of the facts unnecessary.
1 Assumpsit II. 8th Ed. 1831. 2 2 Str. 915.
3 10 Q. B. 152. * 10 Q. B. 166.
376 DE MEDINA V. GKOVE. [CIIAP. V.
On the trial, before Lord Dexmax, C. J., at the sittings in London after
Hilary term, 1845, the plaintiff obtained a verdict for 324^, ; but leave was
given to move for a nonsuit. Watson, in Easter term, 1845, obtained a
rule to show cause why a nonsuit should not be entered, on the ground
(taken at the trial) that an action for money had and received did not lie,
the judgment being conclusive between the parties ; or why, if the verdict
proceeded on a supposition of fraud practised on the plaintiff, a new trial
sliould not be had, inasmuch as the verdict on this point (as well as in
other respects) was against the evidence, no fraud having been proved. In
Michaelmas term, November 10, 1845,
AShee, Serjt., F. V. Lee, with whom was Allen, Serjt., showed cause.
Watso7i and Corrie, contra.
Lord Dexman, C. J. This was an action for money had and received,
to recover the amount levied under the fieri facias mentioned in the
second count of the declaration in the actiou upon the case upon which
our judgment has just been given.
The plaintiff obtained the verdict : and the question is, whether money
levied under a regular execution upon a regular judgment unsatisfied can
be recovered back again as for money had and received to the plaintiflf's
use, upon the ground that the judgment has been partly satisfied, and that
the execution, though for less than the amount recovered, is for more than
is actually remaining due.
"We ai-e clearly of opinion that this action is not maintainable, and that
the entire or partial validity of a judgment good upon the face of it cannot
be inquired into in this form of action ; and that the only remedy in such
a case is by application to the equitable jurisdiction of the court, or to a
court of equity.
If such an action as the present would lie, gi'eat inconsistency might
follow. The court might refuse, upon application, to interfere with the
judgment or execution, and yet, if such an action could be brought, the
defendant in the original action might recover the money levied, and so
defeat both judgment and execution.
If there was any fraud in the case, that might be a gi'ound for the inter-
ference of the court to set aside the judgment or the execution ; but, whilst
both remain unreversed, it would be contrary to principle to reverse them
in effect by an action to recover back the amount levied. No case was
cited, nor are we aware of any that could be cited, to warrant such a pro-
ceeding ; and we arc therefore of opinion that the rule should be absolute
for a nonsuit.
Eule absolute for a nonsuit.
„Ot,^ £4^-^'^^'l^<
SECT. I.] CLARK V. PINNEY. 377
/
CLARK & CLARK Vy PINNEY.
In the Supreme Court of New York, August Term, 182G.
[Reported in 6 Cowen, 297.]
Assumpsit for_nioney had_ and received, tried at the^ Onondaga Circuit,
September, 1825, before^THgooP? C., Judge.
It appeared by the N. P. record that the suit was commenced as early as
February term, 1825. The declaration contained the usual money counts.
Plea, non assum2mt, with notice of set-off.
~ On the trial, the plaintiffs' counsel offered in evidence the record of a
judgment in the Onondaga Common Pleas of ^he term of February, 1822,
in favor of thedefendant against the jjaJntigkjFor^l 93. 11 ; a Ji. fa. in-'V^ ''>>^^*.
dorsed satisfiednby~the sheriff, June 21, 1822, except sheriff's fees; that the^/ ,^_<-/r ^.^;^*'<^*i^
execution was paid by a note of Walker & Clark, by which they promised^ ^^v/^^^^^^
the defendant To^^iyhimJTS 1.2 7 on the 1st day of February, 1823, witlf ^' ^'
interest, provided the judgment in the Common Pleas should not be re-
versed before that day. That this was received as and towards payment of
the judgment by Pinney and his attorney. The couusel also offered the
record of a judgment for $216.73 in the Onondaga Common Pleas on this ' ""^^ ^** -— <-*^ j
note, recovered at May term, 1823, and an execution returnable at the ^^^^^^^ /-^i^^^^
next August term, which had been paid before the return day, and was
returned by the sheriff satisfied. They also offered an exemplification of a
judgment record in the Supreme Court infavor" of the present plaintiffs
agamst the present defendant, whereby it appeared_that the judgment first^
above mentioned had been reversed on a writ of error, at the October term,
IS2i^ All these facts werelTdmitted by the defendant's counsel, on whoso /'^
motion the judge nonsuited the plaintiffs, with leave to move to set aside It^,.,,^^ ...^
the noasuit,_and for a new trial
E. Griffin for the plaintiffs.
S. M. Hopkins, contra.
Curia, per Savage, C. J. The important question in this case is, whether ^
indebitatus assumpsit for money had and received lies to recover money y^e^fuy**-^ r-*-^
paid on an execution upon a judgment which was afterwards reversed. ,i
The general proposition is, that this action lies in all cases where the
defendant has in his bauds money which, ex a'quo et bono, belongs to the
plaintiff. When money is collected upon an erroneous judgment, which,
subsequent to the payment of the money, is reversed. The legal conclusioii
is irresistible, that the money belongs to the person from whom it was col-
lected. Of course he is entitled to have it returued to him. The only
question is, whether this be the proper remedy.
/ ' -^Ai^/C, ^/«-/i-k-k.
378 CLAKK V. riNNEY. [CIIAP. V.
The cases referred to by counsel do not fully decide the point ; nor have
I found any case where this very point lias been decided except Green v.
Stonc.^ It was raised in Isora v. Johns. '^ There the defendant had been
plaintiff in a former action; recovered judgment, and issued execution,
upon which the defendant's property was sold by the sheriff. On the argu-
ment, most of the English cases which are now cited were referred to. The
court decided against the plaintiff on the ground that the money did not
appear to have come to the defendant's use ; not denying the doctrine,
however, that, if the defendant had received the money, the plaintiff might
recover it in this action.
In Green v. Stone this very point was decided in favor of the plaintiffs.
The principle in question is supposed to have been acted on in Feltham
V. Terry,^ which was an action for money had and received by the church-
wardens against the overseers of the poor, for money levied by the latter,
on a conviction of one of the former, which was subsequently quashed. The
court held the plaintiff might sue for the money collected by a sale of the
property ; or, by bringing trespass, he might have recovered the value of
the property. This conviction, I apprehend, must have been irregular;
otherwise the court would not have said trespass might have been brought.
Trespass surely would not lie for collecting the amount of a judgment which
.was merely erroneous! In that case, therefore, the court must have acted
on the principle thaFthe money was collected by a void authority. The
authorities are clear and abundant that, in such a case, indebitatus assump-
sit lies. 1 Bac. Abr. 261 ; Newdigate v. Davy.*
In the case of Mead v. Death & Pollard,^ it was decided that money paid
upon an order of the Quarter Sessions could not be recovered back, though
the order had been quashed on certiorari. And Teacy, Baron, before whom
the cause w^as tried, compared it to the case where money is paid upon a
judgment which is afterwards reversed for error, in which case indebitatus
assumpsit will not lie. No reason is given why this action will not lie ; nor
is any case referred to in support of the dictum. It is shown, however, that
p pin the English courts the proper remedy, upon the reversal of a judgment,
i'Wv u-i^ t*^ IS B, scire facias quare restitutionem noii, upon which the party recovers all
n^ . 1 1^ A*i^ 1 1 that he has lost by reason of the judgment.® And if it appear on the record
J ^ ' that the money is paid, restitution will be awarded without a scire facias?
Cases have been cited in which it is said that this action does not lie to
recover money collected under legal process afterwards vacated, which is
true as applied to those cases ; but the principle is not applicable in this
case.
Upon the whole, my view of the question is this : the general principle
1 1 Har. & .Tolin. 405.
2 2 Muiif. 272. 8 Lofft, 207.
* 1 L(l. Raym. 742. ^ 1 LJ. Riym. 742.
6 Com. 1)!-. (3 B. 20.) Cro. Car. 699. "^ 2 Salk. 588.
SECT. I.] BANK OF UNITED STATES V. BANK OF WASHINGTON. 379
is, undoubtedlj;jnJavor of siistiiining the_action. Isom v. Johns, decided
by the court of appeals of Virginia, is a plain recognition of the })riuciple as
governing this very case ; and Green v. Stone is an authority in point.
These are opposed only by a nisi pruis decision, at a time when the action
for money had and received had not come into general use. I am inclined
to sustain the action. The inclination of courts is to extend the action for
money liad and received. It is not denied that the plaintiff is entitled to '
"some remedy for the money, though it was taken from him by process erro-
"Tieous merely. — TlTenT^wIiy'turn him round from this simple action to the^ 7-"^
"antiquated remedy by scire facias ? I do not think the purposes of justice
require it.
^1
IFiTalso contended that the facts in this case do not amount to a pay-
ment of money to the defendant. A note was received by the sheriff as -^ J^ '—
payment of the execution, by the direction of the plaintiff and his attorney. • -^ ^ '^^*^**7^
And the execution was returned satisfied. Nay, more; a judgment has /^ /
been obtained ; and the money actually paid upon that note. To what '*7 '
would the plaintiffs be restored on a sci.faj To the money paid by tho^;:^/^ jU^ .
note, as money. Restitution could be of nothing else. The difficulty in /
Isom V. Johns was that the sheriff could not be held the plaintiff's agent.
The facts show him to be so in this case.
In my opinion there should be a new trial.
THE BANK OF THE UNITED^' STATES, Plaintiffs in Error, ,„^^£^^ ^..;;,,^ ,^
V. THE BANK OF WASHINGTON, Defendants in Error. ,..,^^^.,^^^ ^'V*-*^ y
In the Supreme Court of the United States, January Term, 1832..^*''^ 7 «:^^—'^ TV?
[Reported in 6 Peters, 8.] Z^i^ ^,^ tO^^uJ^ c^tTZf. -v-.-^-'w ^■'*- "^ "^ ^
Mr. Lear and Mr. Sergeant for the plaintiffs in irrorT _2^;^:*^ '^T^^^^T'l^ ^ ^^^
Mr. Dunlap and Mr. Key for the defendants in error. ^^^-^^^-^ • fyUf~^ -^ < ^'**-.^
Mr. Justice Thompson delivered the opinion of the court. J-rJi^^ ^<>A^-w^ l^^^ ^
This case comes up on a writ of error to the Circuit Court of the United _. '/'
States for the District of Columbia. The judgment in the court below was ' ^ ^-v*^
given upon a statement of facts agreed upon between the parties, sub- \^t^ c^^^ ,^
stantially as follows : — ^ 1'^ ±^
Triplett and Neale, in April, 1824, recovered a judgment against the |'^ ' ^'^^/^A
Bank of Washington for eight hundred and eighty-one dollars and eighteen I ^^Ci% ^TVC' >^
cents. A writ of error was prosecuted by the Bank of Washington, and I
that judgment was reversed by this court at the January term, 1828. But '■'^ ^^^H ^ »T
whilst that judgment was in full force, and before the allowance of the writ 3 ^ >Kwii«« ,^
1 The facts being sufficiently stated in the opinion of the court, the statement of facts >^^I.,^ Lv*-**.* A^
380 BANK OF UNITED STATES T. BANK OF WASHINGTON. [CIIAP. V.
of error, Triplet! and Neale, on tlie 30th of August, 1824, sued out an ex-
ecution against the Bank of Washington, and inclosed it to Richard SmittTT"
cashier ot the othce~^f discount and deposit of the Bank of the United
States at"^\V;ishington7 with the followmg jndorsementj —
Triplett and Xeale v. The Bank of Washington.
" Use and bene6t of the office of discount and deposit U. States, Wash-
ington city." Chr. Neale. " Pay to Mr. Brooke Mackall." Rd. Smith,
cashier. " Received eight hundred and eighty-one dollars and eighteen
cents." B. Mackall.
B. Mackall, who was the runner in the branch bank, presented the ex-
ecution to the Bank of Washington, and received the amount due thereon,
on the 9th of September, 1824. At the time of receiving tlie s^me^ WiUmn
A. Bradley, cashier of the Bank oflVashington, verbally gave notice to said
Mackall, that it was the intention ofHie Bank of W^ashington to appeal to
the Supreme Court, and that the said office of discount and deposit would
be expected, in case of reversal of the^udgment, to refund the amount.
iMackall paid the money over to Smith, who entered it to the credit of
Neale, one of the plaintiffs in the execution. Before the execution was
sent to Smith, Neale._had . promised Jhim^to^appropriate the money ex-
pected to be recovered from the Bank of "Washington, to reduce certain
accommodation discounts, which he had runiiing in the office of discount
and depositT Smith, when he received the execution with the indorsement
thereon, understood and considered that it was for collection, and the
money when received by him was deposited to Xeale's credit generally, and
he would have sent the money to him at Alexandria if he had requested
him so to do, or would have paid his check for the amount. Immediately
on the receipt of the money, Smith wrote to Xeale informing him thereof,
and asking him for specific directions how to apply it ; which letter Xeale
immediately answered, giving him directions, and the money was applied
according to such directions.
Upon this statement of facts the court below gave judgment for the
plaintiffs ; to reverse which, the present writ of error has been brought.
That the Bank of Washington, on the reversal of the judgment of Triplett
and Xeale, is entitled to restitution in some form or manner, is not denied.
The question is, whether recourse can be had to the Bank of the United
States, under the circumstances stated in the case agreed. When the
money was paid by the Bank of Washington, the judgment was in full
force, and no writ of error allowed, or any measures whatever taken, which
^ could operate as a avp'^rsedeas or stay of the execution. Whatever there-
fore, was dune under tlie execution, towards enforcing payment of the judg-^
inent, was ilmic under authority of law. Had the marshal, instead ot the "
'. runner ot ttie bank, gone witli the execution and received the money, or
coerced payment, he would have been fully justified by authority of the
execution ; and no declaration or notice on the part of the Bank of Wash-
SECT. I.] BANK OF UNITED STATES V. BANK OF WASHINGTON. 381
ino-tou of an intention to appeal to the Supreme Court would liavc rendered
his proceedings illegal, or made him in any manner responsible to the de-
fendants in the execution. Suppose it had become necessary for the mai--
shal to sell some of the property of the bank to satisfy the execution, the
purchaser would have acquired a good title under such sale, although the
bank might have forbid the sale, accompanied by a declaration of an inten-
tion to bring a writ of error. This could not revoke the authority of the
officer, and while that continued, whatever was done under the execution
would be valid. It is a settled rule of law,jthat upon an erroneous judg-
ment, if there be a regular execution, the party may justify under it until
the judgment is reversed ; for an erroneous judtrment is the act oftho ^/^ *^^'^ h'-'CnT^
court.^ If the marshal might have sold the property of the bank and given /-
a good title to the purchaser, it is difficult to discover any good reason why^^'**^/^>^^'****a.
a payment made by the bank should not be equally valid, as it respects the^^X^t^t- '^■^-i-.-VTj^v
rights of third persons. In neither case does the party against whom the , ^
erroneous judgment has been enforced, lose his remedy against the party to i , /
the judgment. On the reversal of the judgment, the law raises an obliga-
tion in the party to the record, who has received the benefit of the erro-
neous judgment, to make restitution to the other party for what he has
lost. And the mode of proceeding to effect this object must be regulated
according to circumstances. Sometimes it is done by a writ of restitution,
without a scire facias ; when the record shows the money has been paid,
and there is a certainty as to what has been lost. In other cases, a scire
facias may be necessary, to ascertain what is to be restored.^ And, no
doubt, circumstances may exist where an action may be sustained to recover
back the money .^ But as it respects third persons, whatever has been don^i
under the judgment, whilst it remained in full force, is valid and binding.
A contrary doctrme would be extremely inconvenient, and in a great meas-^>
ure tie up proceedings under a judgment, during the whole time within
which a writ of error may be brought. If the bare notice or declaration of
an intention to bring a writ of error will invalidate what is afterwards done,
should the judgment at any future day be reversed, it would virtually, in
many cases, amount to a stay of proceedings on the execution. No such
rule is necessary for the pi-otection of the rights of parties. The writ of
error may be so taken out as to operate as a sujyersedeas. Or, if a proper
case can be made for the interference of a court of chancery, the execution |/
may be stayed by injunction.
It has been argued, however, on the part of the defendants in error, that
the Bank of the United States stands in the character of assignees of the
judgment, and is thereby subjected to the same responsibility as the origi-
nal parties, Triplett and Neale.
Without entering into the inquiry whether this would vary the case, as
1 1 Stra. 509 ; 1 Ver. 195. ^ 2 Salk. 587, 588 ; Tidd's Prac. 936, 1137, 1138.
8 6 Cow. 297.
7^
\ ii*
382 BANK OF UNITED STATES V. BANK OF WASHINGTON. [CIIAP. V.
^^^^^t^,v*tt.,fc,>^ to the responsibility of the plaintiff in error, the evidence does not warrant
. the cunelusion tliat the Bank of the United States stands in the character
/?7*»i^wv^^t-.«-. of assignees of the jiidgui«»±^ There is neither the form or the substance
t^t-^A^of an assignment of the judgment. No reference whatever, either written
or verbal, is made to it. The mere indorsement on the execution, "use
and benefit of the office of discount and deposit of the United States,
"Washington city," cannot, in its utmost extent, be considered anything
more than an authority to receive the money, and apply it to the use of
the party receiving It! It is no more an assignment of the judgnienf than
if the authority had been given by a power of attorney in any other man-
nei', or by an order drawn on the Bank of Washington. The whole course
of proceeding by the cashier of the office of discount and deposit, shows
that he understood the indorsement on the execution merely as an author-
ity to receive the money subject to the order of Neale, with respect to the
disposition to be made of it. He did not deal with it as an assignee,
having full power and control over the money, but as an agent, subject to
the order of his principal. He passed it to his credit on the proper books
of the office ; aud wrote to him, asking specific directions how the money
should be applied. He received his directions, and applied it accordingly ;
and all tliis was done six months before the allowance of the writ of
error.
It is said, however, that although Mr. Smith might have considered him-
self a mere agent to collect the money, the Bank of Washington had no
reason so to consider him. There is nothing in the case showing that the
Bank of Washington had any information on the subject, except what was
derived from the indorsement 6n the execution ; and if that did not au-
thorize such conclusion, the plaintiff in error is not to be prejudiced by such
misapprehension. It was a construction given to a written instrument, and
if that construction has been mistaken by the defendant in error, it is not
the fault of the opposite party.
But again, it is said the payment of the money was accompanied with
notice of an intention to appeal to the Supreme Court ; and that, in case
of reversal, it would be expected that the office of discount and deposit
would refund the money.
If the plaintiff in error could be made responsible by any such notice,
given even in the most direct and explicit manner, that which was given
( could not reasonably draw after it any such consequence. It is vague in
its terms, and docs not assert that the office of discount and deposit would
be held responsible to refund the money, but only that it would be ex-
pected that it would be done. This is not the language of one who was
j^l asserting a legal right, or laying the foundation for a legal remedy. And
I there is no evidence that even this was communicated to the office.
But tiic answer to the argument is, that no notice whatever could change
the rights of the parties, so as to make the Bank of the United States
SECT. I.]
STEVENS V. FITCH.
383
responsible to refund the monej. When the money was_paidj there \vas_a
TegaTobngation on the part of the Bank of "Washington to pay it ; and a
le^al rio'ht on the part of 'I'riplett and Neale to demand and receive it, or
to enforce payment of it under the execution^ And whatever was done
under that execution, whilst the judgment was in full force, was valid and
binding on the Bank of Washington, so far as the rights of strangers or
third persons are concerned. The reversal of the judgment cannot have a
retrospective operation, and make void that which was lawful when done
The reversal of the judgment gives a new right or cause of action against
the parties to the judgment, and creates a legal obligation on their part to
restore what the other party has lost, by reason of the erroneous judgment ;
and as between the parties to the judgment, there is all the privity neces-
sary to sustain and enforce such right ; but as to strangers there is no such
privity : and if no legal right existed when the money was paid, to recover
it back, no such right could be created by notice of an intention so to do.
Where money is wrongfully and illegally exacted, it is received without any
legal right or authority to receive it ; and the law, at the very time of pay-
ment, creates the obligation to refund it. A notice of intention to recover
back the money does not, even in such cases, create the right to recover it
back ; that results from the illegal exaction of it, and the notice may serve
to rebut the inference that it was a voluntary payment, or made through
mistake.
The judgment must accordingly be reversed ; and judgment entered for
the defendant in the court below.
Ball
<
^f-
JONATHAN C. STEVENS v. GERSHOM M. FITCH and Another.
In the Supreme Judicial Court of Massachusetts, September
Term, 1846.
[Reported in 11 Metcalf, 248.]
Assumpsit to recover $709.89, money had and received by the defen-
dants to the use of the plaintiff. At the trial before Dewey, J., the fol-
lowing facts appeared in evidence : —
The defendants, in 1840, recovered judgment, in the Court of Common
Pleas, against Stephen Stevens, for damages and costs of suit, on a com-
plaint against him for flowing their lands by means of a mill dam. Ex-
ecution issued on that judgment, and was levied, on the 9th of March,
1841, upon said Stephen's real estate. On the 1st of March, 1842, the
plaintiff paid the defendants $709.89^ and they gave him a receiptJor_that
sum, " in full of an execution against Stephen Stevens." Said Stephen
died in 1842, "
^
t-
384 STEVENS V. FITCII. [CIIAP. V.
At the Septeurbcr term of this court, in 1845, the aforesaid jud^mieut of
" , . y / . the Court of Common Pleas was vacated, oua writ of certiorari brouj^ht by
^■'^^^ ^y^ theadmiuistrator of sajd_Step.hcu's estatet See 7 Met. G05.
/ The dcfeudauts insisted thfit the cause of action, if any, accrued to said
^ Stephen, and that an action for the recovery of said $709.89 could be maiu-
'A^iA^'^'uM^ry^li taiued only by his administrator, and that there was no such privity be-
' / ' tween the defendants and the plaintiff, as entitled him to maintain thiia
action.
-^ f Ji
The plaintiff showed that he was the sole party in interest, and that,
'Ay^ although the proceedings on the complaint for flowing the defendants' lands
,)^^ iC^U- ■ftcre nominally against Stephen Stevens, on whose land the said mill-dam
H-wto^ ^^ uU- was erected, yet that the mill, which was carried by the water raised by
said dam, was owned by the plaintiff, and was on his land ; that the plain-
tiff had assumed all the responsibility, and that this was known to the
defendants; and that the plaintiff had given a bond to said Stephen to
save him harmless from all damages and costs that might be recovered
against him on the defendants' aforesaid complaint.
The case was taken from tlie jury, under an agreement of the parties
that if it would have been competent for the jury to find a verdict for the
plaintiff, and if the court would have sustained such verdict, then the de-
fendants should be defaulted ; but that the plaintiff should become non-
suit, if he is not, in the opinion of the court, entitled to recover in this
action.
Barnard and Sumner for the plaintiff.
BisJiop for the defendants.
Wilde, J. We ai-e clearly of opinion that a verdict for the plaintiff
would be well maintained by the evidence, and that a verdict for the de-
fendants could not be sustained upon the facts proved, as to which there
is no conflicting evidence.
The only defence relied on is, that there is no privity of contract between
2^v. w. ' the present parties, and that the action should have been broughtin the name
V / 1?^ of Stephen Stevens's administrator. But there is no ground for this defence.
'w^'^'^^jtc
le money now sued for was paid by the plaintiff, not as the agent or at-
torney of Stephen Stevens, who was only a nominal party. The plaintiff
was the sole party in interest, and he paid the money, on his own account,
\vliich He was obliged to pay, on a consideration which has failed ; and this
shows a privity of contract implied by law. In the cases cited in support
ot tlie defence, it appeared that the money paid was paid by an agent.
The contrary is proved in the present case ; for the plaintiff paid his own
money, and in no sense can he be considered as the agent of Stephen
Stevens. Judgment for the plaintiff would be a good bar to an action by
the administrator of Stephen Stevens.
Defendants defaulted.
SECT. I.] CHANDLER V. SANGER. 385
MALCOLM CHANDLER v. SAMUEL SANGER and Another.
In the Supreme Judicial Court of Massachusetts, January Term, 1874.
[Reported in 114 Massachusetts Reports, 364.]
Contract for money had and received. At the trial in the Superior
Court, before Rockwell, J., the plaintiff, in opening his case, stated that
he expected to prove that the plaintiff was a dealer in ice, and furnished
ice each week-day to parties in Boston, under contracts to fm*nish a certain
amount daily, upon all week days ; that his custom was to have his carts
loaded by twelve o'clock on Sunday night, in order to start early Monday
morning : that any failure on the part of the plaintiff to furnish his cus-
tomers with ice on Monday would be a great injury to him; that Monday
morning, July 12, 1869, he had standing in his sheds at Brighton, adjoin-
ing his ice-house, five heavy two-horse teams loaded with ice, ready to start
for Boston before light ; that the defendant Sanger held his promissory
note and had proved it against his estate in insolvency ; that in the insol-
vency proceeding he had obtained his discharge ; that the defendants knew
these facts ; that the defendant Sanger and the other defendant, who was
an attorney-at-law, brought an action on this promissory note, under cir-
cumstances which would satisfy the jury that the action was commenced
and carried on by them fraudulently, with the purpose of extorting money
from the plaintiff by duress, under color of legal process ; that in pursu-
ance of this purpose, they went about two o'clock on Monday morning
with a writ in the hands of an officer and made an attachment of the carts,
horses, and harnesses; that the attorney-at-law, who had been with the
officer in making the attachment, went to the plaintiff's house and informed
him of the attachment, and told him that none of the property so attached
could go to Boston unless the claim should first be settled by the payment
of $300 ; that the plaintiff told the attorney that he did not owe anything,
and said he would dissolve the attachment by giving a bond; that the
attorney then told him that it would take three days to dissolve it, and
that for that time the property would be held under it, and that his dis-
charge in insolvency did not cut off the claim ; that the plaintiff believed
these statements, and being ignorant of the method of dissolving attach-
ments and being in fear of great loss in his business, to relieve the property
from attachment he paid the $300 to the attorney under protest, stating
that he should claim and enforce his rights, and recover back the money.
The presiding judge being of the opinion that these facts, if proved,
would not sustain the action, so ruled ; whereupon, by consent of the par-
ties, he reported the case to this court for their decision. It was agreed
that if the court should lie of opinion that these facts, if proved, were
VOL. IL — 25
386 SCHOLEY V. HALSEY. [CHAP. V.
sufficient to sustain the actiou, then it was to staud for trial ; otherwise
judgment was to be entered for the defendants.
G. Stevens and /. F. Colby for the plaintiff.
T. H. Sweetser, J. W. Uammond with him, for the defendants.
Gray, J. This is not an action of tort, to recover damages for malicious
prosecution, or abuse of legal process, but an action of contract, in the
nature of assumpsit, for money had and received by the defendants, which
they have no legal or equitable right to retain as against the plaintiff. Al-
though the process sued out for the defendant was in due form, yet if, as
was offered to be proved at the trial, he fraudulently, and knowing that he
had no just claim against the plaintiff, arrested his body or seized his goods
thereon, for the purpose of extorting money from him, then, according to
all the authorities, the payment of money by the plaintiff, in order to re-
lease himself or his goods from such fraudulent and wrongful detention,
was not voluntary, but by compulsion ; and the money so paid may be
recovered back, without proof of such a termination of the former suit as
would be necessary to maintain an action for malicious prosecution. Wat-
kins V. Baird ; ^ Shaw, C. J., in Preston v. Boston ; ^ Benson v. Monroe ; '
Carew v. Rutherford ; * Richardson v. Duncan ; ^ Sartwell v. Horton.*
Gibson, C. J., in Col well v. Peden;'' Cadaval v. Collins;^ Parke, B., in
Gates V. Hudson,* and in Parker v. Bristol & Exeter Railway Co.^°
New trial ordered.
'\y^^*^ i/if0 0^\ T,^. (j/V\/^y^
JOHN B. SCHOLEY, Executor, et al, Respondents, v. WILLIAM L.
HALSEY, Executor, etc.. Appellant.
In the Court of Appeals op New York, February 19, 1878.
[Reported in 72 Neio York Reports, 578.]
Appeal from judgment of the General Term of the Supreme Court, in
the fourth judicial department in favor of plaintiff, entered upon an order
overruling exceptions and directing judgment upon a verdict.
This action was brought originally against George Hart Mumford and
Anne E. Mumford to recover a sum of money, upon grounds stated in the
compliiiut substantially as follows : On the 10th of September, Elizabeth
G. Sclioley died, leaving a will, under which tlie plaintiff, one Worcester,
and George H. Mumford were appointed her executors. Worcester was re-
moved, and Mumford died September 30, 1871, leaving a will, of which
1 6 Mass. 506. « 12 Pick. 7, 14. « 7 Cush. 125, 131.
* 106 Mass. 1, 11, et seq. ^ 3 N. II. 503. « 28 Vt. 370.
7 3 Watts, 327, 328. » 4 A. & E. 858. » 6 Ex. 346, 348.
" 6 Ex. 702, 705.
SECT. I.] SCHOLEY V. HALSEY. 387
the said George Hart Muniford aud Anne E. Mumford were the executors.
At^the time of his death he had in his possession as executor of Mrs.
Scholey certain United States bonds, and these came into the hands of his
executors as such ; the plaintiff demanded the bonds, and afterwards (No-
vember 8, 1871), obtained an order from thq surrogate of Monroe county,
requiring one of them (George Hart Mumford) "forthwith to deliver the
bonds to the plaintiff"." Defendants refused to do so, alleging that commis-
sions were due to the estate of George H. Mumford, and that those should
be first paid. This claim was disputed by the plaintiff; and thereupon the
surrogate having jurisdiction of the matter of said accounts decided in favor
of the claim, and adjudged that they were as such executors entitled to the
money claimed in this action, as upon payment over by George H. Mum-
ford of said bonds in his lifetime. That the plaintiff thereupon paid the
money and received the bonds. The surrogate afterwards reversed his
decision as erroneous " in matter of law." The complaint then alleges
" that before the commencement of this action a demand was made upon
the said defendants in his behalf for said sum of $474.77, which was refused."
A judgment was asked against them for the amount.
The answer denies that the defendants refused to give up the bonds, but
on " the contrary agreed and offered to deliver them up " upon the payment
of such sums as should, upon accounting before the surrogate, be found due
to the estate of the deceased executor, George H. Mumford; that the
claim for commissions was submitted to the surrogate, who determined the
amount due for commissions, "and thereupon plaintiff called upon defend-
ants " aud paid them " the amount so determined, and the defendants there-
upon delivered up said bonds." The case has been to this court twice be-
fore the present appeal. (See 60 N. Y. 498 : G4 id. 521.) Between the
second trial and the decision in this court, George Hart Mumford
died, and the action was continued against Anne E. Mumford, as sur-
vivor. She subsequently died, and the action was revived and continued
against her executor, the present defendant. Upon trial it appeared that
the demand for a return of the sum paid was made of George Hart Muniford ;
the facts were proved substantially as alleged in complaint. Defendant's
counsel moved to dismiss the complaint, on the ground that plaintiff could
not maintain the action against the present defendant, which motion was
denied, and said counsel duly excepted. Said counsel moved for a nonsuit
upon the ground, among others, that no demand for repayment of the
money was made of Mrs. Mumford. The motion was denied, and said
counsel duly excepted. The court directed a verdict for plaintiff.
Geo. F. Danforth for appellant.
W. F. Cogswell for respondent.
Andrews, J. If it was necessary in this case to decide the question
whether the original defendants, having received the money claimed in this
action under and by virtue of the decision of the surrogate, made in a
388 SCHOLEY V. HALSEY. [CHAP. V.
matter within his jurisdiction, could be considered as having obtained it by
duress, the question would deserve serious consideration before deciding it
for the plaintiff. The plaintiff paid the money and the defendants received
it, after the surrogate had decided, upon a hearing of all tlie parties, that
the defendants were entitled to it.
Both parties, after the decision, maintained their original position ; the
plaintiff claiming that the decision of the surrogate was erroneous, and that
the defendants were not entitled to the commissions ; and the defendants in-
sisting that they were entitled to them, and that the surrogate's decision
was correct. The plaintiff while this decision was in full force paid the
commissions. The defendants were justified in receiving them, by the de-
cision of the surrogate. Can it be said, under such circumstances, that
they received them wrongfully, or that they obtained them by duress, al-
though the plaintiff paid them to obtain possession of the bonds 1 But we
pass this point without further observation, as we think the case is with
the plaintiff on the ground now to be stated.
The original decision of the surrogate was doubtless erroneous, and hav-
ing been subsequently reversed and set aside, the plaintiff was then entitled
to recover the money paid under the erroneous order. In Clark v. Pinuey,^
the court says : " That this action {indebitatus assumpsit) lies in all cases
where the defendant has in hands money which, ex a^quo et bono, belongs to
the plaintiff. AVhen money is collected upon an erroneous judgment which
subsequent to the payment of the money is reversed, the legal conclusion
is irresistible, that the money belongs to the person from whom it was col-
lected ; of course he is entitled to have it returned to him." The same
principle is recognized in subsequent cases. Maghee v. Kellogg,^ Garr o.
Martin.^
And it is not necessary in order to maintain the action, that the payment
should have been coerced by execution. It is sufficient if it was paid after
judgment or adjudication made. 1 Stark. N. P. 326, 357 ; Lott v. Swezey.*
The original defendants were bound, therefore, to restore to the plaintiff
the money received under the erroneous decision of the surrogate. But a
demand before bringing suit was necessary in order to enable the plaintiff
to recover upon this view of the case. If the original defendants are to bo
ref^arded as joint-debtors, and jointly responsible to the plaintiff, the de-
mand made of George Hart Mimiford would seem to have been sufficient
to sustain the action against both. Geisler v. Acosta ; ^ Blood v. Goodrich ; '
Baird v. Walker;' Com. Dig. tit. Condition L., 9.
The action was brought against the original defendants as individuals,
and not in their representative capacity as executors of George H. Mumford ;
and the complaint alleges that the money sought to be recovered was paid
1 6 Cow. 299. 2 24 Wend. 32. » 20 N. Y. 306.
4 29 Barb. 87. * 9 N. Y. 227. « 9 Wend. 68.
7 12 Harb. 298.
SECT. I.]
EXALL V. PARTRIDGE.
389
to the defendants, and a personal judgment was demanded against them.
The defendants, in their answer, allege that the plaintiff " called upon the
defendants and paid them" the money in question. We think the plead-
ings conclude the defendants from now raising the question that the de-
fendants did not receive the money as individuals, and that the action
could not be maintained against them personally to recover it. They had
no right to take any charge or control of the bonds, as executors of George
H. Mumford.-'
The suit was properly revived against the executor of the survivor of the
original defendants. Union Bank v. Mott.^
The judgment should be affirmed.
All concur. Judgment affirmed.
EXALL V. PARTRIDGE and Two Others.
In the King's Bench, June 8, 1799.
[Reported in 8 Term Rejwrts, 308.]
This was an action upon promises for money paid, laid out, and expended
for the use of the defendants. At the trial before Lord Kenyon at the
sittings after last term, it appeared in evidence that thejthree defendants
were lessees of certain premises by deed from one Welch, to whom they
thereby covenanted to pay the rent, and that two of the defendants after-
wards with the plaintift's knowledge assigned their interest to Partridge the
other co-lessee, who was a coachmaker ; subsequent to which assignment
the plaintiff put his carriage upon the premises under the careof Partridge,
where it was taken as a distress by Welch the landlc)rd_for rent jn arrear ;
and the plaintiff, in order to redeem it, was obliged to pay the rent due,
taking at the time a receipt from Welch's attorney as for so much received
on account of the three defendants. The present action was brought to
recover that sum. The plaintiff was nonsuited, on the ground that the
action should have been brought against Partridge alone, he being the
person in the sole possession of the premises at the time, with the knowl-
edge of the plaintiff, who had trusted him only with the possession of his
property, and he also being the person ultimately responsible to the other
two defendants ; and therefore it was said that the money must be taken
to have been paid for his use only.
Garrow obtained a rule, calling on the defendants to show «ause why the
nonsuit should not be set aside.
Erhsme showed cause.
Garrow and Espinasse in support of the rule.
Lord Kenyon, C. J. Some propositions have been stated on the part of
1 2R. S. 449, § 11. a 27 N. Y. 633.
twrT*v^..^UA' A.*-
390 EXALL V. PARTRIDGE. [cHAP. V.
the plaintiff to which I cannot assent. It has been said that, where one
person is benefited by the payment of money by another, the law raises an
assumpsit against the former : but that I deny ; if that were so, and I
owed a sum of money to a friend, and an enemy chose to pay that debt,
the latter might convert himself into my creditor, 7iolens volens. Another
proposition was that the assignment from two of the defendants to the
third was not evidence against the plaintiff, because he was no party to it :
that also I deny ; it surely was evidence to show in what relation the par-
ties stood to this estate. I admit that where one person is surety for an-
other, and compellable to pay the whole debt, and he is called upon to pay,
it is money paid to the use of the principal debtor, and may be recovered
in an action against him for money paid, even though the surety did not
pay the debt by the desire of the principal. But none of those points
affect the present question. As the plaintiff put his goods on the premises
knowing the interests of the defendants, and tEcrcb}^ placed himself in a
situation where he was_Liatjle to pay this money without the ooncnn-encn of
two of the defendants, I thought at the trial that it was money paid to the
use of the other defendants only; but on that point I have since doubted^
and I rather think that the opinion I gave at the trial was not well
founded.
Grose, J. The question is, whether the payment made by the plaintiff
under these circumstances were such an one from which the law will imply
a promise by the three defendants to repay ; I think it was. All the three
defendants were originally liable to the landlord for the rent ; there was an
express covenant by all, from which neither of them was released ; one of
the defendants only being in the occupation of these premises the plaintiff
put his goods there, which the landlord distrained for rent, as he had a
riglit to do ; then for the purpose of getting back his goods he, paid the
rent to the landlord which all the three defendants were bound to_pay.
The plaintiff could not have relieved himself Trom the distress without
paying the rent ; it was not therefore a voluntary, but a compulsory, pay-
ment ; tmder these circumstances the law implies a promise by the three
defendants to repay the plaintiff. And on this short ground I am of
opinion that the action may be maintained.
Lawrence, J. One of the propositions stated by the plaintiff's counsel
certainly cannot be supported, that wlioever is benefited by a payment
made by another is liable to an action of assumpsit by that other; for one
person cannot by a voluntary payment raise an assumpsit against another.
But here was a distress for rent due from the three defendants; the notice
of distress expressed the rent to be due from tlicm all ; the money was paid
by the plaintiff in satisfaction of a demand on all, and it was paid by com-
pulsion ; therefore I am of opinion that this action may be maintained
against the three defendants. The justice of the case indeed is that the
one who must idtimately pay this money should alone be answerable
SECT. I.] GKIFFINIIOOFE l\ DAUBUZ. 391
here: but ag all the three defendants were liable to the landlord for the
rent in the first instance, and as by this payment made by the plaintiff all
the three were released from the demand of the rent, I think that this
action may be supported against all of them.
Le Blanc, J. Not having been in court when this motion was first
made, I have not formed on the sudden a decisive opinion upon this case.
But at pi-esent the inclination of my opinion is, that this action may be
maintained against the three defendants, on this ground : the three defend-
ants were all by their covenant bound to see that the rent w^as paid ; by
their default in not seeing that it was paid the plaintiff's goods were dis-
trained for a debt due from the three defendants to Welch ; by compulsion
of law he was obliged to pay that debt ; and therefore I think he has his
remedy against the three persons who by law were bound to pay, and who
did not pay, this money. Rule absolute.
GRIFFINHOOFE v. DAUBUZ.
In the Exchequer Chamber, November 29, 1855.
[Reported in 5 Ellis ^- Blackburn, 746].
The first count of the declaration alleged that defendant, by deed dated
27th October, 1845, demised a farm in Sussex to plaintiff, from 29th Sep-
tember, 1845, for the term of twenty-one years, determinable as therein
mentioned. That plaintiff entered and was possessed till the demise was
determined on Michaelmas day, 1852, according to the provisions of the
deed. The count then stated aTBreach of a covenant as to taking straw at
a valuafioa.
Second count. That, after the determination of the term as in the first
count mentioned, to wit, 1st October, 1852, "a certain sum of money, to
wit, 41/. 12s. 10^(/., became and accrued due and payable fromjheTdeferid-
ani lu cerLaJLl persons ; that is to~say, to the Ecclesiastical Commissioners
for England and Wales, for and in respect of a certain sum or rent in lieu
and stead of tithes, or a tithe rent charged upon the said farm and land in
the said first count mentioned ; which said sum or rent the defendant as
owner of the said farm, and entitled to the rents and profits thereo^was___
liable to pay, and ought to have paid ; and which said farm and land_was
liable to the payment of the said sum or rent, as he the defendant well_
knew. And, the defendant having neglected and refused to pay the said
sum, anJ the same being in arrear and unpaid as aforesaid, that is to say,
on " 1st June, 1853, " the said Ecclesiastical Commissioners^_by^ their
bailiff, duly authorized in that behalf, for obtaining payment of the same
duly, and according to the provisions of the statutes in that behalf, distrained
392
GRIFFINHOOFE V. DAUBUZ.
[CIIAP, V.
for the said sum so iu arrear a certain stack of wheat of the plaintiff, then
lawfully being upon the said farm and land ; and afterwards, in pursuance
of the provisions of the said statutes, sold and disposed of the said stack of
wheat for and in satisfaction of the said sum so in arrear and the costs and
charges of the said distress. By reason of which premises the plaintiff lost
and was deprived of the said stack of wheat. And, although the defendant
had notice of the several matters hi this count mentioned, and was requested
by the plaintiff to indemnify the plaintiff against the said seizure and sale,
and to make good to him the loss so occasioned, yet the defendant has not
indemnified the plaintiff, or made good to him the loss so occasioned, but
has neglected and refused so to do."
Third count, for money paid.
Fourth count, on accounts stated.
Pleas. (1) As to 1st count and part of 3d and 4th counts, pay-
ment of money into court; (2) As to the residue of 3d and 4th counts,
Nxmquam indebitahcs ; (3) As to the same residue, Payment; (4)" As to
so much of the second count of the declaration as alleges that the defend-
ant was liable to pay, and ought to have paid, the sum or tithe x-ent in that
count mentioned," " that the defendant was not liable to pay, nor ought
he to have paid, the said sum or tithe rent, or any part thereof, as alleged ;"
(5) To the 2d count, " that the said stack of wheat therein mentioned was
not lawfully upon the said farm and land as alleged ; " (G) To the 2d count,
" that the said stack of wheat therein mentioned was not, at the time when
the same was so distrained as therein alleged, or at any time after the de-
termination of the said term, lawfully on the part of the said farm and land
where the same was so distrained."
The plaintiff took the money out of court ; and issue was joined on the
2d, 3d, 4th, oth, and 6th picas.
A verdict was found : on the 2d plea, for plaintiff ; on the 3d plea, for
defendant ; on the 4th plea, for defendant ; on the 5th plea for plaintiff;
on the 6th plea for plaintiff.
Judgment was entered up in the Court of Queen's Bench : " that the
plaintiff" take nothing by his said writ, except the said" sum paid into
court and his costs in that behalf; " and that the defendant do go thereof
without day, except as aforesaid ; and that the defendant do recover against
the plaintiff" his costs of defence, after allowing the plaintiff's said
costs.
The plaintiff, in the Court of Excheqticr Chamber, suggested error ; which
the dufendant denied.
The case was argued in the preceding term.^
Bramvjell, for the party suggesting error.
Bovill, contra. Cur. adv. vult.
^ November 16lh. Before Williams and Crowder, JJ., and Parke, Alderson, and
Platt, BB.
SECT. I.] GRIFFINIIOOFE V. DAUBUZ. 393
Parke, B., now delivered the judgment of the court.
The point which was decided in the Court of Queen's Bench ^ is not now
raised. That court quite rightly considered that the issue taken by the 4th
plea inYoTved a personaT liability, and was not satisfied by the existence of a
mere charge on the land ; and they considered that no such personal lia-
bility existed, and therefore directed the verdict on this issue to be entered
for the defendant. The allegation, therefore, which is traversed may be
considered as off the record ; and the question for us is, what is to be done
with the record so modified.
It is argued that enough remains untraversed to entitle the plaintiff to
judgment ; and that, there being also other traverses to the same count,
which are found for the plaintiff, the plaintiff, according to Negelen v.
Mitchell,^ would be entitled to judgment. But the question is, whether
enough does remain.
Thfi_jjnfigation,_that^the defendant well knew that the farm and land
were liable to the payment is clearly not enough. Then there is an aliega-
fioiTthat the stack was lawfully on the farm. Does that raise an implied ^
promise, or require the defendant to indemnify the plaintiff for the loss f^l^^^^ ''^^Vi
which he has suffered by his stack being distrained and sold] We all
agree that no such liability arises. There may be many cases in which ) / "^
the stack would be lawfully on the farm, and yet the defendant would not A-*--***, 4^.^/^
be bound to indemnify the plaintiff for the distress. One case may be put,
which seems in fact to have been shown at the trial to have actually oc-
curred : the plaintiff may have had permission to leave the stack on the ./Syji^/^i^'i^^ ^^^ H-
farm for his own convenience. Something seems to have been said, at . .
earlier stages of the case, as to this having been allowed on the terms of they*"^ / K
plaintiff paying the rent-charge which accrued next after the expiration of jA^Z^
the term. Supposing that to be so, there would be no implied undertaking
by the defendant to repay the plaintiff the value of the stack distrained ;
the stack would, in such a case, be lawfully on the land ; but the payment
of the rent ought to come from the plaintiff himself. Again, it is quite
consistent with this count that a new term may have been granted to a
stranger, who has given permission to the plaintiff to keep his stack on
the farm. That could raise no obligation on the part of the landlord.
Again, we might suppose that the stack was on a cart which was passing
over the premises in exercise of a right of way. There is therefore no al-
legation showing any privity entitling the plaintiff to recover in any form
of action. Jxidgment affirmed.
1 Griffinhoofe v. Daubuz, 4 El. & Bl. 230. 2 7 m. & W. 612.
394
ENGLAND V. MARSDEN.
[chap. V.
X
4-
Il a
ENGLAND v. MARSDEN.
In tue Common Pleas, April 23, 1866.
[Reported in Law Reports, 1 Common Pleas, 529.]
This was an action for money lent, money paid, interest, and money due
upon accounts stated.
First plea, never indebted.
The cause was tried before Montague Smith, J., at the sittings in
Middlesex after last Michaelmas term. The facts material to the present
question were as follows : On the 2d of June, 18G0, the_defendant, in_con-
sideration of a past debt of 100/., and a present advance of 80/., by bill of
sale assigueS to the plaintiff all the household furniture, goods, etc., upon
tlie messuage'and premises known as the Gospel Oak, Circus Road, Kentish
Town, subject to redemption on payment of the 180/. by_}veekly insta^
ments of SI. 10s. each; the whole to become due upouLdefault in paymen^t
Qf_any one weekly instalment, and^the plaintiff^o^ be_atUil>6rty_in_that
event to take possession and sellthe goods, etc. On the 9th of July, 1860,
the defendant was arrested, and he afterwards obtained his discharge under
the Insolvent Debtor's Act, 1 & 2 Vict. c. 110. On the 1 Oth_orjul;j^
1860, the plaintiff took possession under the bill of sale, but jillowed the
goods to remain upon the premises, and the defendant's wife and family to
resiHe there and carry on the business until the 23d of October, when the
landlord distrained for a quarter's rent which became due on the 29th of
September. On the 26th of October the plajnUff paid the quarter's reriL
I 'and 61. 9s. for expenses, which sums (amongst others) he now sought ^to_
1 recover from the defendant in this action as a payment made to release his,,
j goods from a claim for which the defendant was legally responsible^
In answer to a question put to them by the learned judge, the jury found
that the plaintiff had no express authority from the defendant to keep the
goods upon the premises ; and, under his direction, a verdict was found for
the plaintiff for 8/. 4s. 6c/., and leave was reserved to him to move to increase
it by the sum of 42/. 9s.
Montngii Chambers, Q. C, accordingly obtained a rule Jiisi, relying upon
the case of Exall v. Partridge.^
//. T. Cole showed cause.
Montagu Chambers, Q. C, and Butt in support of the rule.
Ekle, C. J. I am of opinion tliat this rule should be discharged. The
facts are these: The plaintiff having, on the lOth of July, 1860, taken
possession of certain goods in the defendant's house under a bill of sale,
1 8 T. R. 308.
SECT. I.] ENGLAND V. MARSDEN. 395
allowed them to remain upon the premises until after the 29th of Septem-
ber, on whicli day a quarter's rent became due. The landlord afterwards
distrained for the rent, and the plaintiff freed his goods fiom that distress
by payment of the sum claimed, and now seeks to recover it back from the
defendant as money paid for his benefit and at his request. The propo-l '
sition which has been contended for on the part of the plaintiff is, that
where the owner of goods places them upon the premises of another, and
rent becomes due, and the landlord distrains the goods, and the owner pays
the landlord's claim in order to release his goods, the payment so made is
a payment made under compulsion of law, and may be recovered in an
action against the tenant ; and for this Exall v. Partridge ^ is relied on.
There is, however, one great distinction between that case and this. There,
Partridge was a coachmaker, and Exall at his request bailed his carriage
with him. The landlord distrained it for rent, and Exall cleared it from
that burthen by paying the sum claimed ; and it was held that the action ^ J 'j^ ..
lay, because the carriage was left upon the defendant's premises at the ■' ^*
defendant's request and for his benefit. Here, however, the plaintiff's /
goods were upon the defendant's premises for the benefit of the owner of
the goods, and without any request of the defendant. The plaintiff hav-
ing seized the goods under the bill of sale, they were his absolute property.
He had a right to take them away ; indeed it was his duty to take them
away. He probably left them on the premises for his own purposes, in
order that he might sell them to more advantage. At all events, they
were not left there at the request or for the benefit of the defendant. It
is to my mind prec2sely_the same as if he had placed the goods upon the
defendant's premises without the defendants lgaverinrdl"heJ[andiord had
come in and distrained them.
Byles/7! I am of the same opinion. The case is clearly distinguishable
from Exall v. Partridge,^ which has been recognized often. As I collect the
facts, the payment was exclusively for the advantage of the plaintiff, and
in no degree for that of the defendant. There is no evidence of any re-
quest on the defendant's part. The leaving the goods upon the premises
was the plaintiff's own act, for his own advantage. There is nothing from
which the law can imply a promise to pay.
Keating, J. I am of the same opinion. The case of Exall v. Partridge,^
which is plainly distinguishable from this, is an illustration of the rule of
law, that, where one man is compelled to pay a debt for which another is
legally responsible, the law will imply a promise by the latter to indemnify ^
the former. But here the plaintiff was not compelled to pay the rent
within the meaning ofthat rule, because he vohmtaril^and for his own
advantage allowedthe goods to remain upon the premises whilst the rent /
was accruing. We jiojipt,tLerefQre^jn_any degree, impugn the rule which^
has been referred to. 1^
1 8 T. R. 308.
396 ' EDMUNDS V. WALLINGFORD. [CHAP. V.
Montague Smith, J. I am of the same opinion. The facts obviously
distinguish this case from Exall v. Partridge.^ The plaintiff by his own
voluntary act, and without any reques^_of_the_iieSDdaut, express_0T im-
plied, placed his goods ui a position to enable the landlord to seize them.
He^robably thought it would be more to his own advantage if he allowed
the floods to remain upon the premises until a new tenant was obtained,
inasmuch as tliey would in that case command a better price. He was not_
ignorant of the accruing claim of the landlord^ The jury found that he
had no express authority ffonTthe defendant to leave the goods on the
premises. If the defendant had been asked, in all probability he would
have declined to give such authority. This, moreover, is a very stale
claim. ^^^ discharged.
<s.,^,..s^..£PMUNDS V. WALLINGFORD,
'In the Court of Appeal, March 18, 1885.
, IRenorted in Law RepoTt&;\^ Queen's Bench Division, 811.]
Action upon an agreement dated the 8th of May, 1879, and in the
-^ ^i-^i^^Zi^ I j alternative for money received, and in the alternative for money paid. At
-zr2..,£^£d- ^ \ tbe trial before Huddleston, B., without a jury, the learned judge gave
judgment for the plaintiff for 1200/., and the dcfcnjan^ appealed.
The facts of the case are stated in the judgment of the Court of Appeal
hereinafter set forth.
A. R. Jelf, Q. C, and Johnston Watson, C. Johnston Edwards with them,
for the plaintiff.
Finlay, Q. C, and W. Baugh Allen, for the defendant.
Cur. adv. vult.
The following written judgment of the court (Lord Coleridge, C. J.,
Sir James Hannen, and Lindley, L. J.) was delivered by
LiNDLEY, L. J. The jlaintiff in this action is the trustee in bankruptcy
of two sons of the defendant, and the action is brought to recover 1 200/.
promised by the defen^anrtcTbe paid to the plaintiff, as such trustee, and
in the alternative the plaintiff claims 1300/., the sum realized by the sale
of goods belonging to the sons, but seized and sold under a judgment re-
covered against the defendant. The defendant alleges that there was no
consideration for his promise to pay the 1200/., and that the goods seized
■were his own goods and not those of his sons.
In order to understand this controversy, it is necessary to state the
circumstances which led to it. They were shortly as follows : —
/ In April, 1876, the defendant bought the business of an ironmonger in
Andover in his own name, but for his son William. The greater part of
1 8 T. R. 308.
SEQX. I.] EDMUNDS V. WALLINGFOKD. 397
the purchase-money was paid by the defendant. The lease of the place
where the business was carried on was taken in his name; his wife lived
on the place ; he came there every week, and assisted more or less in the
business, and the banking account of the business was kept in his name,
and he alone drew checks on that account.
Id August, 1876, the defendant's sons, William and Edward, carried on
the business as partners under the name of Wallingford Brothers ; but the
defendant continued to visit tlie place and to keep the banking account as
before, the business checks being signed by him in the name of the firm. ;'
From March, 1878, to September, 1878, the defendant lived at the place.
In the autumn of 1878 an action was brought against the defendant by the
Mutual Society, and in October, 1878, judgment was signed against him.
On the 24th of October, 1878, the goods on the premises where the busi-
ness was carried on were seized. The sons claimed them ; but upon an
interpleader summons taken out by the sheriff the claim was, on the 11th
of November, 1878, barred, and the goods seized were accordingly sold.
They realized 1300/., and this sum has been paid into court in the action
of Mutual Society v. Wallingford as a security for what may be found due
from the defendant to the society upon taking certain accounts directed to
be taken in that action.^ On the 28th of November, 1878, the sons were
adjudicated bankrupt. The plaintiff is their trustee, and on the 8th of
May, 1879, the defendant entered into the agreement sued upon in the
present action. The agreement is as follows : —
"I, John Wallingford, of 22 Chelsea Road, Southsea, hereby agree with
Henry William Edmunds, of 4 Sumner Eow, Birmingham, as trustee in the
bankruptcy of my sons William, John, and Edward, that in consideration
of their ironmongery stock in and about their shop and premises at High
Street, Andover, having been seized and sold on behalf of the Mutual
Society of Ludgate Hill, London, in payment of an alleged claim against
me, I undertake and agree that in the event of my succeeding in an action
I am about to bring against the said Mutual Society, to pay all the trade
creditors of my sons for debts contracted while in business at High Street,
Andover, in full, through the trustee, Henry William Edmunds ; and
further, I agree that whether my said action against the Mutual Society is
successful or not, I will pay three hundred pounds per annum to the said
trustee until I shall have paid him a sufficient sum to pay the trade-
creditors of my aforesaid sons in full."
Such being the facts, it is necessary to consider the legal questions to
which they give rise.
The first question is the liability incurred by the defendant to his sons
by reason of the seizure of what he has deliberately asserted to be their
goods for his debt. That, as between the father and the sons, the goods
were theirs, we consider establishe_d by the father's own_jtatements.^ Speak-
1 See Wallingford v. Mutual Society, 5 App. Cas. 685.
398
EDMUNDS V. WALLINGFORD.
[chap. V.
i^
ing generally, and exchidmg_cxceptional cases, where a person's goods_are^
lawfully seized for another's debt, the owner of the goods is entitled^to
redeem them and to be
the debtor against the mone^
'o redeem them, and "iiTthe event of the goods being" sold to satisfy the
^
"debt, the owner is^cntitlcd to recover the value of^^thcmJronL-tho, doTitnr.
TW authorities supporting this~general propositionwill be found collected
in the notes to Lamplcigh v. Brathwait,^ and Dering v. Winchelsea.^ As
instances illustrating its application, reference may be made to the case of
a person whose goods are lawfully distrained for rent due from some one
else, as in Exall v. Partridge;^ to the case of a surety paying the debt of
his principal ; to the case where the whole of a joint debt is paid by one
only of the joint debtors ; to the case where the joint property of a firm is
seized for the separate debt of one of the partners. The right to indemnity
or contribution in these cases exists, although there may be no agreement
to indemnify or contribute, and although there may be, in that sense, no
privity between the plaintili' and the defendant : see Johnson v. Royal Mail
Steam Packet Co." Butjt^is obvious tha^_thej-ight may be excluded by
l-^-^ '■ contractas well as by other circunistances. Where the^ownerj)f the goods
^ ' seized is, as between himself^^ the personjor^diose debt they are seized,
y:^ /^ I nableJojpayJlgJebtJUsj^^ I and
' lEi^xplains tiiTcase of Grffinhpoife -z^ Daiib^ There the plaintiff, who
' was the tenant oTthe^efendant, sued him to recover the value of a stack
of wheat distrained for tithe rent-charge. The declaration alleged that the
defendant was liable to pay, and ought to have paid, this rent-charge. The
defendant, on the other hand, denied this alleged liability ; and upon this
part of the case the verdict was entered for the defendant, and the defend-
ant succeeded in the action. The plaintiff, without attempting to disturb
the verdict, applied for judgment non obstante veredicto, for alleged error on
the record, on the ground that although the defendant was not personally
liable to pay the rent-charge, yet his fiirm and land were liable to pay it,
and therefore he ought to indemnify the plaintiff. But it was held that
many circumstances might exist rendering the plaintiff the person to pay
the tithe rent-charge, and that, having regard to the verdict, the record
did not show that the defendant was liable to indemnify the plaintifl
against it. The court said : " There is no allegation of any privity entitling
the plaintiff to recover in any form of action." We are not sure that we
quite appreciate the meaning of the word "privity" in this passage: but
the truth seems to have been, that the merits as disclosed at the trial were
against the plaintiff, and that the court was not disposed to be astute and
to give him judgment after his failure at the trial.
Another exception to the general rule has been held to exist, where the^
/y. owner of thfi {roods has left themjorjiis own convenience where they could
I 1 Smith's L. C. 151. M w. & T. (L. C.) IOC. « 8 T. R. 308.
* L. K. 3 C. P. 38. 6 5 El. & Bl. 746.
SECT. I.]
EDMUNDS V. WALLINGFORD.
)99
be lawfully seized jur the debt of the person from whom he seeks indem-
nity. England v. Marsdeu.^ The plaintiff in that case seized the defend-
an?8 goods under a bill of sale, but did not remove them from the
defendant's house. The plaintiff left them there for his own convenience,
and they were afterwards distrained by the defendant's landlord. The
plaintitf paid the rent distrained for, and brought an action to recover the
money from the defendant. The court, however, held that the action
would not lie, as the plaintiff might have removed his goods before, and
could not under the circumstances be considered as having been compelled
to pay the rent. This appears to us a very questionable decision. The
evidence did not show that the plaintiflF's goods were left in the defendant's
house against his consent; and although it is true that the plaintiff only
had himself to blame for exposing his goods to seizure, we fail to see how
he thereby prejudiced the defendant, or why, having paid the defendant's
debt in order to redeem his own goods from lawful seizure, the plaintiff
was not entitled to be reimbursed by the defendant. This decision has
been questioned before by Thesiger, L. J., in 15 Ch. D. 417, and by the
late Vaughan Williams, J., in the notes to the last edition of Wms.
Saunders, vol. 1, p. 361, and we think the decision ought not to be fol-
lowed. Be the case of England v. Marsden ^ however, right or wrong, it
is distinguishable in its facts from the case now before us.
In order to bring the present case within the general principle alluded
ix) above, it is necessary that the goods seized shall have been lawfully
seized ; and it was contended before us that the sons' goods were in this
case wrongfully seized, and that the defendant, therefore, was not bound to
indemnify them. But when it is said that the goods must be lawfully
seized, all that is meant is that as between the owner of the goods and the
person seizing them, the latter shall have been entitled to take them. It
is plain that the principle has no application, except where the owner of
the goods is in a position to say to the debtor that the seizure ought not to
have taken place ; it is because as between them the wrong goods have
been seized that any question arises. Now, in this case it has been decided
between the owners of the goods seized (i.e., the sons), and the sheriff
seizing them, that the goods were rightfully seized ; and although the
defendant is not estopped by this decision, and is at liberty, if he can, to
show that the seizure was one which the sheriff was not justified in making,
he has not done so. Indeed, the defendant's connection with his sons'
business was such asjtojustify^he iiiference that the sheriff Fadli right to
seize the goods for the defendant's debt, and if, in truth, any mistake was
made by the sheriff, the defendant had only himself to thank for it. His
own conduct led to the seizure, and although he did not in fact request it
to be made, he brought the seizure about, and has wholly failed to show
that the seizure was wrongful on the part of the sheriff.
1 L. R. 1 C. P. 529.
/A^>{1.
<
400 SNOWDON V. DAVIS. [CIIAP. V.
The case, therefore, stands thus : goods which the defendant has admitted
iu writing to be his sons', have, owing to his conduct, been legally taken in
execution for his debt, and the proceeds of sale have been impounded as a
security for w^hat is due from him to the execution creditors. The defend-
ant therefore, was liable to repay to his sons the amount realized hy tlTe
sale of Ihe goods. This liability the plaintiff, as the sons' trustee iu bank-
-TtiptcyTwasTn^ position to enforce,~and he has never released it or agreed
Fd lo do^'xcept iipbri payment of" 1200/: The plaliftiff is iiTTposition now~
lo^hfor'ce that liability, TftEe^defeudahFsucceetls' in showing that his ex-
press promTse to pay TJOO/.Js_no£iegallyJjmdmgJ^^ — Tiie^aintiff
is~conteDrtolbakethe^l200/. expressly promised to be paid instead of insist-
ing on his right to the 1300/.; and Huddlestox, B., has properly given
the pTalutltf judgment accordingly. This appeal must be dismissed with
costs. Judgment for the plaintiff.
SNO^YDON V. DAVIS.
In the Common Pleas, July 6, 1808.
[Reported in 1 Taunton, 359.]
This was an action for money had and received, etc. Upon the trial
at the last Reading spring assizes, before Chambre, J., it appeared, that
on the 12th of February, 1806, a writ of distringas had issued out of the
Court of Exchequer, directed to the sheriff of Berks, requiring him to
distrain the inhabitants of the Borough of New Windsor by their lands
and chattels, and to answer the issues of such lands, so that they should
appear to render an account as in the annexed schedule mentioned. The
schedule referred to was in substance, " Upon the inhabitants of the
borough of New Windsor, for the deficiency of George Dixon and John
Snow, collectors in the said borough, the several sums of 11. 8s. Id.
and 74/. 2s." By virtue of this writ, the sheriff issued a warrant to the
defendant, commanding him to distrain the inhabitants of New Windsor for
the insufficiency of Dixon and Snow the sums of 7/. 8s. Id. and 74/. 2s.
The defendant, under color of the warrant, demanded of the plaintiff, who
was an inhabitant of the borough of New Windsor, the two several sums of
11. 8s. 2d. and 74/. 2s. : the plaintiff at first refused to pay the money, hut
upon a subsequent demand made, he paid it ; upon which the defendant
gave him a receipt for so much money by him distrained under His Majesty's
I writ for that purpose issued against the inhabitants of New Windsor. On
' the 12th of February, 1806, another writ of distringas issued to the sheriff
of Berks, commanding him to distrain the several persons, collectors, in tlie
schedule thereto annexed named, by all tlieir lands and chattels, and to
,t-Ur^
SECT. I.] SNOWDON V. DAVIS. 401
answer the issues of such lands, so that they should appear to render an
account as in the said schedule mentioned. The schedule was, " Upon the
borough of New Windsor, G. Dixon and J. Snow, collectors, the sum of
132/. 14s, 7c/." Upon this writ the sheriff issued his warrant to the de-
fendant, to distrain upon Snow and Dixon, the collectors there, the sum of
132/. 14s. Id. ; upon which warrant the defendant demanded of the plaintiff
tliat sum, and also the sum of G/. \1s. od. for issues. Tlie plaintiff at first
refused to pay him, bxit the defendant took possession of his goods; upon
which the plaintiff paid him both sums, and the defendant gave him a re-
ceipt for the money, as received under His Majesty's writ of distringas for
arrears of taxes, and one shilling in the pound issues, viz., distringas 132/.
14s. 7(/., issues 61. 12s. 5d. The defendant proved, that before the time of
bringing this action, the sums levied by color of the first writ had been
paid over by himself to the sheriff, and by the sheriff into the Exchequer,
and that the sheriff had received his quietus. He also proved that the sums
levied under color of the last writ had been paid over by himself to the
under-sheriff before the action brought. Chambre, J., directed the jury, that
the plaintiff was entitled to recover the sums he had so paid, deducting the
issues upon the sums mentioned in the first writ, which issues the defend-
ant was, by the practice of the Court of Exchequer, authorized to levy.
The jury found a verdict for the plaintiff for 21G/. 13s. lOc/., beino; the i \/, ,■ if
amount oi the several sums oi money so paid by the plamtiit, deductmg .i,^,
thereout 4/. Is. 6(7. for the issues of Is. in the pound on the amount re- 1' / -> •
ceived under first writ. ''
Tr;.7/z'rt?;is, Serjt., had in the last term obtained a rule nisi that the verdict
might be set aside, and a nonsuit entered, upon the ground that as the
money had been paid over by the bailiff to his principal, the action for
money had and received could not be supported against the bailiff.
Shepherd, Serjt., on a former day in this term, showed cause against this
rule.
Williams, in support of his rule. Our. adv. vult.
Mansfield, C. J., on this day delivered the judgment of the court.
The facts of the case are short and few. A writ of distringas issued out
of the Exchequer to the sheriff of Berks, to levy issues on the inhabitants of
New Windsor. The sheriff made his warrant, following the words of the
distringas, and authorizing the defendant, his bailiff, to levy these issues.
The distringas did not order the sheriff, nor did the sheriff order his bailiff, ,
to levy the greater sums of 7/. 8s. 2f7. and 74/. 2s. The bailiff threatens!
Snowdon to distrain his goods for these two sums. For a part of them,
namely, for the issues he had, for the residue he had not a right to distrain.
The plaintiff, under the terror of a distress, pays both these suras. The
bailiff pays the money over to the sheriff, and the sheriff to the Exchequer ;
and it is objected, that as it has been paid over, the action for money had
and received does not lie against the bailiff ; and this is compared to the
vol.. II. — 26
402 JOHNSON V. ROYAL MAIL STEAM PACKET COMPANY. [CIIAP. V.
case of an agent ; and tlie authorities are cited, of Sadler v. Evans, Campbell
V. Hall,^ Duller v. Harrison,^ and several others. In the case of Sadler v.
Evans, the money was paid to the agent of Lady Windsor for Lady Wind-
sor's use ; in that of Euller v. Harrison, the money was paid to the broker,
expressly for the benefit of the assured. In Pond v. Underwood, the money
Uvru^y ) was paid for the use of the administrator. Can it in this case be said
yvj'i dU\r*\A ^ y./it' with any propriety, that the money was paid to the bailiff for the purpose
^»^W (n.-^-'^t^ (A^ cui/ \ ^^ P''^y'"o ^^ ^^ ^^® sheriff, or to the intent that the sheriff might pay it into
<lu/7't. U >jM^^^ viA^ - 1 Jj*e Exchequer ] The plaintiff paj^s it under the torror of process, to redeem
*^^»jZ-, <Hv<^f^ ''""^ j.his goods, not with an intent that it should be delivered over to any one in
jlparticuhir. To make the argument the more curious, if it had happened
/;/ 7 that the plaintiff had looked at the warrant, he could not have paid the
^^ ^ vtAX^/ir-"^ money with a view that it should be paid over to the sheriff; for he would
there have seen an authority to levy 4/. Is. Qxl. only. He clearlythen paid the
money under the terror of a distress. With respect to the other wi'it, the
circumstances are the same. Under the like terrors of a distress, he pays
the second sum. The warrant was, to levy upon the goods of the collectors,
not upon those of the inhabitants of New Windsor. The plaintiff pays
that sum also to the bailiff, the bailiff having no authority whatsoever to re-
ceive it. The action for money had and received very well lies under the
circumstances of this case, which in no respect resembles the cases cited,
i and the rule for a nonsuit must therefore be discharged.
JOHNSON AND Another v. EOYAL MAIL STEAM PACKET
COMPANY.
In the Court of Common Pleas, November 25, 1867.
[Reported in Law Reports, 3 Common Pleas, 38.]
Declaration in trover for two ships and for money paid. Pleas : Not
guilty, and never indebted. There were other pleadings, which gave rise
only to questions of fact.
The action was tried before Erle, C. J., at the sittings in London after
Michaelmas term, 18G4, and was then turned into a special case, and the
facts therein stated, as far as related to the present questions, were as fol-
lows : The European and Australian Royal Mail Company, Limited, were
the owners of two steam-vessels, which they mortgaged in November, 1857,
to the plaintiffs. In the month of April, 1858, the European and Australian
Royal Mail Company, under circumstances held to show acquiescence by
the mortgagees, entered into an agreement with the defendants, under the
terms of which the defendants were to work the steamers, witli a view to
1 1 Cowi). 204. 2 2 Cowp. 5G5.
i
SECT. I.] JOHNSON V. ROYAL MAIL STEAM PACKET COMPANY. 403
amalgamation, until further noticej paying all expenses, and receiving all
the profits, the European and Australian Eoyal Mail Company indemnifying
them for the loss they might sustain thereby, if any, upon a periodical
statement of accounts. The defendants at that time had no notice of the
mortgage. In tlie_beginning of Jiily^l858,^he plaintiffs gave tlie defend-/
ants notice of their mortgage, and, required them to deliver up the vessels
to their agent at Sytlney. The vessels were then running between Suez and
Sydney, and were at that time at Suez preparing to start for Sydney, and
the defendants had at that time entered into engagements with third par-
ties for the coming voyages, so that they had an interest in using them,
which would have entitled them to do so, in spite of any notice which they
might have received from the European and Australian Royal Mail Com-
pany, terminating the agreement. In accordance with the notice from the
plaintiffs, the defendants delivered up the vessels to their agent at Sydney
on~their arrivaTtEere^; but at the time of such delivery a sum of more than
1"
5000/. was due from jhe defendants to thejofficers and crews of the vessels
for^ their wages, for which the latteQverejgntiUed^tojjijaaritime lien upon
the vessel.
The officers and crews took proceedings in the Vice Admiralty Court at
Sydney, and shortly after the vessels had been delivered up to the plaintiffs
they were seized by the officers of that court, and a difficulty arising with
respect to the payment of the money, partly owing to the want of a prop-
erly authorized agent of the plaintiffs there, they were detained some
months. Ultimately the plaintiffs paid the_sum_claimed_jind^Qbtained pps-
session of the ships, which were then sold, but realized less than the amount
for which they were mortgaged.
TEe^plauvETIfs claimed a sum for the use and occupation of the ships from
the time of notice till the delivery up of the ships at Sydney ; the repay-
ment of the wages which had been paid by the plaintiffs ; and damages for
the detention of the ship, on the ground that the delivery of the ship,
subject to the lien for wages, was not a sufficient delivery of it in law.
Horace Lloyd, Maude with him, for the plaintiffs.
Mellish, Q. C, Bushhy with him, for the defendants.
The judgment of the court (Willes, Byles, and Keating, JJ.) was
delivered by
WiLLES, J. I will proceed to consider the claims in respect of the subse-
quent payments made by the plaintiffs, and the expenses incurred by
reason of their having had to make those payments.^
The Royal Mail Company, we must take it, received, as they had a right
to receive under the agreement, the earnings of the voyage, or perhaps to
speak more accurately, they received what was paid in respect of freight
upon the voyage from government, from passengers, and in respect of cargo ;
whether the voyage was favorable or not, in a pecuniary point of view, is
Ouly so much of the opinion is given as relates to this question. — Ed.
^+
Lh
404 JOHNSON r. ROYAL MAIL STEAM PACKET COMPANY. [CHAP. V.
immaterial, and altliougli freight cannot be said now, in so strict a sense as
formerly, to be the mother of wages, yet it would follow as a matter of busi-
ness, according to ordinary practice, that they onglit thereout to have dis-
charged the wages of the crew of the vessel. Those wages were incurred
during the period of their possession and control, and the crew were era-
ployed by them. Theirs were the hands which received what was paid for
freight, and theirs were the hands which ought to have paid the melTby
whose labor that freight was earned^ Moreover, it was expressly pro-
vided by the agreement between the European and Australian Mail Com-
pany and the defendants that the latter should pay the working expenses
in the first instance. Wages, of course, ought to be paid speedily, and iu
respect of that obvious piece of justice a remedy is given, whereby the sea-
men are authorized to have the vessel detained by the process of the Ad-
miralty in order to satisfy their claims. Now, these wages were left unpaid ;
the vessel was seized iu the Admiralty Court ; the money was not ready on
the spot ; various causes, partly resting with the plaintiffs, led to very great
delay ; but in the result the mortgagees did pay the wages, and the vessel
■was released, — and this gives rise to the second claim.
Now the mortgagees having had to pay sums of money for which the
Royal Mail Company were liable in the first instance, which they ought,
according to maritime usage, and by their contract with the Eui'opean aud
Australian Company, to have forthwith paid ; what answer is set up by the
Eoyal Mail Company against reimbursing the mortgagees who have paid
their debt 1 Of course there is, upon the surface, that by the law of this
country, differing, it is said, in that respect from the civil law, nobody can
make himself the creditor of another by paying that other's debt against
his will or without his consent ; that is expressed by the common formula
of tHe~count foFmoney paid for the defendant's use, at his request. That
is the general rule, undoubtedly ; but it is subject to this modification,Tliat
money paid to discharge the debt of another cannot be recovered unless it
was paid at his request, or under compulsion, or in respect of a liability
ImposedlJpon that other. This is the modification of the rule relied upon
by tTie plaintiff, and the question is, within which branch of the rule the
present case falls]
It was argued on the part of the defendants that the non-])ayment of the
wages was a breach of contract only ; and it was said the European and
Australian Company may recover, because they have an agreement with the
Royal Mail Company by which they have stipulated that the latter should
pay those wages ; so let them sue. They have, moreover, sued, and this I
court has held that the action was maintainable ; and it was held, if one j
may use such an expression m terrorem over the court, that if we decided ■
that the mortgagees should recover in this action for the wages that they j
paid, the European and Australian Company may also recover in their j
action, and so that the same sum of money would be recovered by two '
SECT. I.] JOHNSON V. ROYAL MAIL STEAM PACKET COMPANY. 405
different persons against the same defendants in respect of the same matter,
which would be absurd. That difficulty, however, is not a practical one,
because if the defendants pay the plaintiffs, the European and Australian
Company could only recover nominal damages in respect of the breach of
that contract ; they did not pay the wages in question ; those were paid by
the mortgagees, paid out of their moneys, and not out of the moneys of the
European and Australian Company. It would be, therefore, a matter of
nominal damages, simply founded upon the breach of contract, and by
reason of the technical rule that any breach of contract, although not the
cause of any damage, gives rise to a claim for nominal damages. But then
it is said if you get rid of that, how do you dispose of the objection that
there is no contract between the mortgagees and the Royal Mail Company ?
The answer was this, on the part of the plaintiffs, that the contract is not
set up by them as mortgagees to enforce any claim thereupon, the contract
is set up by the defendants, the Eoyal Mail Company, for the purpose of
justifying their detention of the vessel as against the mortgagees ; and if
they can justify the sailing of the vessel from Suez to Sydney, as against
the mortgagees, by reason of their having a bailment which gave them an
interest, and in respect of that interest and their being entitled to sail her
upon that voyage, it seems that it would be blowing hot and cold that they
should be allowed to give up the vessel upon other tei-ms than those of
the contract which has justified the course which they have taken. More-
over, the compulsion of law which entitles a person, paying the debt of
another, to recover against that other as for money paid, is not such a com-
pulsion of law as would avoid a contract, like imprisonment. It has been
decided in numerous cases that restraint of goods by reason of the non-
payment of the debt due by one to another is sufficient compulsion of the
law to entitle a person who has paid the debt in order to relieve his goods
from such restraint, to sustain a claim for money paid. This is a case which
■we have been compelled to consider very much upon its own circumstances,
which are very peculiar, and may be difl[icult to be made a precedent, per-
haps, in any future case. Perhaps the nearest case that could be put by ,
way of illustration would be this. A. lends B. his horse for a limited 1
period, which would imply that he must pay the expense of the horse's ll ^^'''^■^ "^ a c. ^^^
keep during the time he retains it. B. goes to an inn and runs up a bill, -vi^^^
which he does not pay, and the innkeeper detains the horse. In the mean \ "^ M-'Q^
time A. has sold the horse out-and-out for its full price to C, and C. is in-
formed that the horse is at the inn ; he proceeds there, to take him away,
but is told he cannot take him until he pays the bill, and he pays the bill }|sLf
accordingly and gets his horse ; can C, who in order to get his horse is
obliged to pay the debt of another, sue that other in an action for money ,
paid % We are clearly of opinion that he could ; and without heaping up
authorities where it has been held, independent of contract, that a person'
occupying a property in respect of which there is a claim that ought to
-^
406 PRESTON V. THE CITY OF BOSTON. [CIIAP. V.
have been discharged by another, being compelled to pay, is entitled to
reimbursement, we think that this is a case in which the mortgagees, by
compulsion of law, have paid a debt for which the Royal Mail Company
■were liable, — a ready money debt which they ought to have provided for on
the arrival of the vessel at Sydney, — and that, therefore, in respect to the
claim for wages the plaintiffs are entitled to recover as on the_coiinLfor
money paid.
"^ J%(,dgment for tJie defendants as to the first and third
claims, and for the plaintiff s as to the second claim.
REMEMBER PRESTON v. THE CITY OF BOSTON.
In the Supreme Judicial Court of Massachusetts, October Term, 1831.
{Reported in 12 Pickering, 7.]
Assumpsit to recover 8711.50, money had and received to the use of the
plaintiff, being the amount of a tax assessed upon him for the year 1828,
for his poll and personal estate, and by him paid to the treasurer and collec-
tor of the city of Boston.
At the trial, before Wilde, J., it was proved that the plaintiff, with his
wife, had lived at board in Medford several years, and had been taxed there
four years preceding 1828, and also that year, and that on the 1st of May,
1828, one of the assessors of Medford saw him there, at the house of his
son-in-law, with whom he and his wife were then boarders. The plaintiff
was usually in Boston some days every three or four weeks, where his prin-
cipal business was the taking care of his property, consisting chiefly of pub-
lic stocks and money, and on those occasions he boarded with a son-in-law
who resided there ; and the early part of the month of May, 1828, the plain-
tiff passed in Boston.
It was not questioned on the part of the defendants that the plaintiff had
his residence in Medford and was liable to be taxed there in the year 1828.
The defence set up was, that he had requested the assessors of Boston to
tax him there by the following note addressed to them. "Boston, Gouch
Street, May, 1828. You will please to be informed that I am a boarder at
my son's, E. D. Clarke, and you are requested to assess mo this year a light
tax for personal estate ; trusting in your prudence and moderation, it is ray
wish in future to pay a light tax to this city."
The plaintiff was the owner of real estate in Boston, for wliich he ad-
mitted that he was regularly taxed in 1828. The taxes of that year were
coinniitted to Mackay, the treasurer and collector, on the 1st of Novcmhcr,
and he soon gave notice to tlie plaintiff of his being taxed in Boston, and of
the amount of his tax, with the time when payment would be required. On
SECT. I.]
PRESTON V. THE CITY OF BOSTON.
407
the 20th of December, 1828, the plaintiff called upon Mackay, paid the tax
on his real estate, and then objected to the ta.x. on hi¥ poll and personal
estate as being an illegal assessment, saying that ho was taxed wrongfully,
thatlie had been taxedTrOIed^ford foFlils poll and personal cstaFiTfor 1828,
and had already paid his taxes there. Mackay replied thaTTTlTe "dTd not
pay~arthe~time limited^a warrant of distress must be issued against Tiim,
unless he obtained an "abatement. The plaintTtt' thereupon petitioned the
mayor and aldermen of the city for an abatement of his tax, which being
refused, he paid the amount to Mackay on the 17th of January, 1829.
Upon these facts such judgment was to be rendered, upon nonsuit or
default, as the whole court should direct.
Stearns and A. Bartlett for the plaintiff.
J. Pickering (City Solicitor) for the defendants.
Shaw, C. J., delivered the opinion of the court.
The only remainingj:|uestion is, whether this money was paid voluntarily
or under diiress.^ A party who has paid voluntarily under a claim of right
shall not afterwards recover back the money, although he protested at the
time against his liability. The reason of this is obvious. The party mak-
ing the demand may know the means of proving it, which he may after-
wards lose ; and because another course would put it in the power of the
other party to choose his own time and opportunity for commencing a suit.
Brisbane v. Dacres.^ But it is otherwise when a party is compelled by
duress of bis_person or~goods to_gaymoney for which he is not liable^; it js
not voluntary but compulsory, and he may rescue himseTT^'om such duress
by payment of the money, and afterwards, on proof of the fact, recover it
bacE Astley v. Reynolds7'
What shall constitute such duress, is often made a question. Threat of
a distress for rent is not such duress, because the party may replevy the
goods distrained and try the question of liability at ' law. Knibbs v. Hall.*
Threat of legal process is not such duress, for the party may plead, and
make proof, and show that he is not liable. Brown v. M'Kinally.^ But
the warrant to a collector, under our statute for the assessment and collec-
tion of tax^, is uTtheliatuiNe'of^!^^ the person
and property^of the jiartyTupon which he has no^ay m court, no^ opportu-
mtyTo plead and offer proof, and have a judicial decision of the question of
ElsTiabilityZ] Where,^ therefore, a party not liable to taxation is called on
peremptorily to pay upon suchajwarrant. and he can save himselfand^^is
pl^ertylri no other~way^than by paying the illegal demand, he may give
notice that he so pays it by^^dujpss arid not voluntarily, andjby^showing
tEaTh elsliot liable recover it back as monev had and received. _AmeS'
bury W. & C. Manuf. Co. v. Amesbury.®
1 Only so much of the opinion is given as relates to this question. -
2 5 Taunt. 143. » 2 Str. 916. * 1 Esp. 84.
6 1 Esp. 279. « 17 Mass. 461.
Ed.
lit
ptpL^
408 ELLIOTT V. SWARTWOUT. [CHAP. V.
It appears by the facts agreed that upon the first notice of the tax, the
plaintiti' applied to the treasurer and collector, setting forth his specific
ground of objection, namely, that he was not an inhabitant and not liable
to the tax on personal property. The plaintiff was informed by the collec-
tor that he had no discretion on the subject, and unless he obtained an
abatement a warrant of distress would issue against him. He then applied
to the city government, stated the grounds of his objection, and remon-
strated against the tax; but they decided that the tax must be paid, of
which the collector was duly informed. The law under which the treasurer
and collector acted obliged him to issue a warrant, under which the person
and property of the plaintiff would have been liable to be taken, and that
officer had.uotified him that such warrant would be issued. Under these
circumstances the money was paid, and we think it cannot be considered as
a voluntary payment, but a payment made under such circumstances of
constraint and compulsion, and with such notice on his part that it was so
paid, that on showing that he was not lial»le he may recover it back in this
action from the defendants, into whose treasury it has gone.
Defendants defaulted.
NELSON J. ELLIOTT v. SAMUEL SWARTWOUT.
In the Supreme Court of the United States, January Term, 1836.
[Repoi-ted in 10 Peters, 137.]
On a certificate of division from the Circuit Court of the United States
for the southern district of New York.
The suit was originally instituted in the Superior Court of the city of
New York, by the plaintiff against the defendant, the collector of the port
of New York ; and was removed by certiorari into the Circuit Court of the
United States.
The action was assumpsit, to recover from the defendant the sum of
thirty-one hundred dollars and seventy-eight cents, received by him for
duties, as collector of the port of New York, on an importation of worsted
shawls with cotton borders, and worsted suspenders with cotton straps or
ends. The duty was levied at the rate of fifty per centum ad valorem,
under the second clause of the second section of the act of the 14th of July,
1832, entitled "An act to alter and amend the several acts imposing duties
on imports," as manufactures of wool, or of which wool is a component part.
The plea of non-assumpsit was pleaded by the defendant in bar of the
action.
The following points were presented during the progress of the trial for
the opinion of the judges ; and on which the judges were opposed in
opinion : —
SECT. I.]
ELLIOTT V. SWAKTWOUT.
409
/
First. Upon the trial of the cause, it having been proved that the
shawls imported, and upon which the duty of fifty per centum ad valorem
had been received, were worsted shawls with cotton borders sewed on ; and
that the suspenders were worsted with cotton ends or straps ; and that
■worsted was made out of wool by combing, and thereby became a distinct
article, well known in commerce under the denomination of worsted.
The judges were divided in opinion whether the said shawls and suspen-
ders were or were not a manufacture of wool, or of which wool is a corapo-/*^/
nent part, within the meaning of the words " all other manufactures of
wool, or of which wool is a component part," in the second article of the
second section of the act of Congress of the 14th of July, 1832.^
Second. Whether the' collector is personally liable in an action to re-
cover back an excess of duties, paid to him as collector ; and by him, in the
regular or ordinary course of his duty, paid into the treasury of the United
States ; he, the collector, acting in good faith, and under instructions from
the treasury department, and no protest being made at the time of pay-
ment, or notice not to pay the money over, or intention to sue to recover
back the amount given him.
Third. Whether the collector is personally liable in an action to recover
back an excess of duties paid to him as collector, and by him paid, in the
regular and ordinary course of his duty, into the treasury of the United
States, he, the collector, acting in good faith, and under instructions from
the treasury department ; a notice having been given, at the time of pay- -CL^
ment, that the duties were charged too high, and that the party paying so X^ ^ -^ ^
paid to get possession of his goods, and intended to sue to recover back
the amount erroneously paid ; and a notice not to pay over the amount into
the treasury.
These several points of disagreement were certified to this court by the
direction of the judges of the Circuit Court.
Mr. Ogden for the plaintiff.
Mr. Butler, Attorney-General, for the defendant.
Mr. Justice Thompson delivered the opinion of the court.
2. The case put in the second point is where the collector has received
the money in the ordinary and regular course of his duty, and has paid it
over into the treasury, and no objection made at the time of payment, or
at any time before the money was paid over to the United States. The
manner in which the question is here put presents the case of a purely
voluntary payment, without objection or notice not to pay over the money,
or any declaration made to the collector of an intention to prosecute him
to recover back the money. It is therefore to be considered as a voluntary
payment, by mutual mistake of law ; and, injinch casej_rLO action will lie to
recover back the money. The construction of the law is open to both par-
ties, and each presumed" to know it. Any instructions from the treasury
1 So much of the case as relates to this point has been omitted. — Eu.
<\
410 ELLIOTT V. SWARTWOUT. [CHAP. V.
department could uot change the law, or affect the rights of the plaintiff.
He was not bound to take and adopt that construction. He was at liberty
to judge for himself, and act accordingly. These instructions from the
treasury seem to be thrown into the question for the purpose of showing,
beyond all doubt, that the collector acted in good faith. To make the col-
lector answerable, after he had paid over the money, without any intima-
tion having been given that the duty was not legally charged, cannot be
sustained upon any sound principles of policy or of law. There can be no
hardship in requiring the party to give notice to the collector that he con-
siders the duty claimed illegal, and put him on his guard, by requiring him
not to pay over the money. The collector would then be placed in a situa-
tion to claim an indemnity from the government. But if the party is
entirely silent, and no intimation of an intention to seek a repayment of
the money, there can be no ground upon which the collector can retain
the money, or call upon the government to indemnify him against a suit.
It is no sufficient answer to this that the party cannot sue the United
States. The case put in the question is one where no suit would lie at all.
It is the case of a voluntjxy payment under a mistake of law, and the
money paid over into the treasury ; and if any redres8jg_to_be had, it mnst-
beCy application to'the favor of the government, and not on the ground
ofa legal right.
The case of Morgan v. Palmer ^ was an action for money had and received,
to recover back money paid for a certain license ; and one objection to sus-
taining the action was that it was a voluntary payment. The court did uot
consider it a voluntary payment, and sustained the action : but Chief Jus-
tice Abbot, and the whole court, admitted that the objection would have
been fatal, if well-founded in point of fact. The court said it had been
well argued, that the payment having been voluntary it could not be recov-
ered back in an action for money had and received. And in Brisbain v.
Dacres,'^ the question is very fully examined by Gibbs, J., and most of the
cases noticed and commented upon, and with the concurrence of the whole
court, except Chambre, J., he lays down the doctrine broadly, that where a
man demands money of another, as matter of right, and that other, with
a full knowledge of the facts upon which the demand is founded, has paid a
sum of money voluntarily, he cannot recover it back. It may be, says the
judge, that, upon a further view, he may form a different opinion of the
law ; and it may be, his subsequent opinion may be the correct one. If we
were to hold otherwise, many inconveniences may arise. There are many
doubtful questions of law. When they arise, the defendant has an option
either to litigate the question, or submit to the demand and pay the money.
But it would be most mischievous and unjust, if lie who lias acquiesced in
the right by such voluntary payment slK)iild lie at liberty, at any timff
within the statute of limitations, to rip up the matter and recover back the
» 2 B. & C. 729. 2 5 Taunt. 154.
SECT. I.] ELLIOTT V. SWARTWOUT. 411
money. This doctrine is peculiarly applicable to a case where the money
has been paid over to the public treasury, as in the question now under
cousideratit)n. Lord Eldon in the case of Bromley v. Holland ^ approves
the doctrine, and says it is a sound principle that a voluntary payment is
not recoverable back. In Cox v. Prentice/ Lord Ellen borough says ; " I
take it to be clear, that an agent who receives money for his principal is
liable, as a principal, so long as he stands in his original situation, and
until there has been a change of circumstances, by his having paid over the
money to his principal, or done something equivalent to it." And in Buller
V. Harrison,^ Lord Mansfield says the law is clear, that if an agent pay
over money which has been paid to him by mistake, he does no wrong, and
the plaintiff must call on the principal ; that if, after the payment has been
made and before the money has been paid over, the mistake is corrected,
the agent cannot afterwards pay it over without making himself personally
liable. Here, then, is the true distinction : When the money is paid volun-
tarily and by mistake to an agent, and he has paid it over to his principal,
he cannot be made personally responsible ; but if, before paying it over, he
is apprised of the mistake and required not to pay it over, he is personally
liable. The principle laid down by Lord Ellenborough, in Townsend v.
Wilson,* cited and relied upon on the part of the plaintiff, docs not apply
to this case. He says, if a person gets money into his hands illegally, he
cannot discharge himself by paying it over to another ; but the payment,
in that case, was not voluntary ; for, says Lord Ellenborough, the plaintiff
had been arrested and was under duress when he paid the money. In
Stevenson v. Mortimer,^ Lord Mansfield lays down the general principle,
that if money is paid to a known agent, and an action is brought against
the agent for the money, it is an answer to such action that he has paid it
over to his principal. That he intended, however, to apply this rule to
cases of voluntary payments made by mistake, is evident from what fell
from him in Sadler v. Evans.® He there said, he kept clear of all payments
to third persons but where it is to a known agent ; in which case the action
ought to be brought against the principal, unless in special cases, as under
notice, or mala fides; which seems to be an admission that if notice is given
to the agent before the money is paid over, such payment will not exonerate
the agent. And this is a sound distinction, and applies to the two ques-
tions put in the second and third points in the case now before the court.
In the former, the payment over is supposed to be w ithout notice ; and in
the latter after notice and a request not to pay over the money. The
answer, then, to the second question is, that under the facts there stated
the collector is not personally liable.
3. The case put by tlie third point is where, at the time of payment,
notice is given to the collector that the duties are charged too high, and
1 7 Vesey, 23. 2 3 m. & S. 348. a 2 Cowp. 568.
* 1 Campb. 396. & 2 Cowp. 816. ^ 4 Bur. 1987.
'-yyi.
412 ELLIOTT V. SWAliTWOUT. [CIIAP. Y.
that the party paying so paid to get possession of his goods ; and accom-
panied by a declaration to the collector, that he intended to sne him to
, , . , . recover back the amount erroneously paid, and notice given to him not to
^C ^ ^-j—^^ p^y j^ Q^gj. ^Q j.|jg treasury.
This question must be answered in the affirmative ; unless the broad
proposition can be maintained, that no action will lie against a collector to
^^^^•^'xQQo^Qv back an excess of duties paid him ; but that recourse must be had
■r cL?^^i^M the government for redress. Such a principle would be carrying an
^ , exemption to a public officer beyond any protection sanctioned by any prin-
*''^*'^'' ciples of law or sound public policy. The case of Irving v. Wilson and
Another,^ was an action for money had and received, against custom-house
officers, to recover back money paid to obtain the release and discharge of
7 goods seized that were not liable to seizure ; and the action was sustained.
Lord Kenton observed, that the revenue laws ought not to be made the
means of oppressing the subject ; that the seizure was illegal ; that the de-
fendants took the money under circumstances which could by no possibility
justify them ; and, therefore, this could not be called a voluntary payment.
The case of Greenway v. Hurd ^ was an action against an excise officer,
to recover back duties illegally received ; and Lord Kenyon does say, that
an action for money had and received will not lie against a known agent,
hut the party must resort to the superior. But this was evidently consid-
ered a case of voluntary payment. The plaintiff had once refused to pay,
but afterwards paid the money ; and this circumstance is expressly referred
to by BuLLER, J., as fixing the character of the payment. He says, though
the plaintiff had once objected to pay the money, he seemed afterwards to
waive the objection by paying it. And Lord Kenyon considered the case
as falling within the principle of Sadler v. Evans,^ which has already been
noticed. In the case of Snowdon v. Davis,* it was decided that an action
for money had and received would lie against a bailiff, to recover back
money paid through compulsion, under color of process, by an excess of
authority, although the money had been paid over. The court say, the
money was paid by the plaintiff under the threat of a distress ; and al-
though paid over to the sheriff and by him into the Exchequer, the action
well lies ; the plaintiff paid it under terror of process to redeem his goods,
and not with intent that it should be paid over to any one. The case of
Ripley v. Oelston ^ was a suit against a collector to recover back a sum of
money demanded by him for the clearance of a vessel. The plaintiff ob-
jected to the payment, as being illegal, but paid it for the purpose of obtain-
ing the clearance, and the money had been paid by the collector into the
branch bank to the credit of the treasurer. The defence was put on the
ground that the money had been paid over ; but this was held insufficient.
The money, say the court, was demanded as a condition of the clearance;
1 4 T. R. 485. 2 4 t. R. 554. » 4 Bur. 1984.
* 1 Taunt. 358. ^ 9 Johns. 20L
SECT. 1.]
ELLIOTT V. SWARTWOUT.
413
and that being established, the plaintiff is entitled to recover it back, with-
out showing any notice not to pay it over. The cases wliich exempt an
ai'-ent do not apply. The money was paid by compulsion. It was extorted
as a condition of giving a clearance, and not with intent or purpose to be
paid over. In the case of Clinton v. Strong,^ the action was to recover
back certain costs which the marshal had demanded on delivering up a
vessel which h:id been seized, which costs the court considered illegal ; and
one of the questions was whether the payment was voluntary. The court
said the payment could not be voluntary. The costs were exacted by the
officer, colore officii, as a condition of the redelivery of the property ; and
that it would lead to the greatest abuse to hold that a payment under such
circumstances was a voluntary payment precluding the party from contest-
in» it afterwards. The case of Hearsey v. Pryn ^ was an action to recover
back toll which had been illegally demanded ; and Spencer, J., in delivering
the opinion of the court, says the law is well settled, that an action may be
sustained against an agent who has received money to which the principal
had no right, if the agent has had notice not to pay it over. And in the
case of Fry v. Lockw'ood,^ the court adopts the principle, that when money
is paid to an agent for the purpose of being paid over to his principal, and
is actually paid over, no suit will lie against the agent to recover it back.
But the distinction taken in the case of Ripley v. Gelston is recognized
and adopted ; that the cases which exempt an agent when the money is
paid over to his principal without notice, do not apply to cases where the
money is paid by compulsion, or extorted as a condition, etc. From this
view of the cases, it may be assumed as the settled doctrine of the law,
th at where money is illegally demanded and received by an agent, he can-
not exonerate himself from personal responsibility by paying it over to his
prmcipal ; if he has had notice not to pay it over. The answer, therefore,
to the thifd~point must be, that the collector is personally liable to an
action to recover back an excess of,_duties paid to him as collector, under
the circumstances stated in the point ; although he may have paid over the
money into the treasury.
This cause came on to be heard on the transcript of the record from the
Circuit Court of the United States, for the southern district of New York,
and on the questions on which the judges of the said Circuit Court were
opposed in opinion, and which were certified to this court for its opinion,
agreeably to the act of Congress in such case made and provided, and was
argued by counsel ; on consideration whereof, it is the opinion of this court,
on the first question, that the said shawls and suspenders were not a
manufacture of wool, or of which wool was a component part, within the
meTning oTTKelvords " all other manufactures of wool, or of which wool is
a componeiir'part," in~the second article of the second section d^_thejict^
Congress of July U, 1832.
1 9 Johns. 369. '^ 7 Johns. 179. » 4 Cow. 456.
/
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rv^Tl
^-A.^
414 BOSTON & SANDWICH GLASS CO. V. CITY OF BOSTON. [CIIAP. V.
\ ' Ou the second question, it is the opinion of this court, that, inider the
\M,i^n-' fiicts as stated iu the said second question, the collector is not personally
liable.
' I On the third question, it is the opinion of this cOurt tliat the collector,
under the circumstances as stated iu the said question, is liable to an action
to recover back an excess of duties paid to him as collector, although he
J ^ ^ —^, niay have paid over the money into the treasury. Whereupon it is ordered
and adjudged by this court, to be so certified to the said Circuit Court of
the United States for the southern district of New York.
THE BOSTON & SANDWICH GLASS COMPANY v. CITY OF
BOSTON.
L\ THE Supreme Judicial Court of Massachusetts, March Term, 1842.
{Reported in 4 Metcalf, 181.]
Indebitatus assumpsit for money had and received. The case was sub-
mitted to the court on the following statement of facts : " The plaintiffs
are a body corporate in this Commonwealth, chartered by St. 1825, c. 99,
for the purpose of manufacturing glass in the city of Boston and the town
of Sandwich. But they have, and always have had their manufactory, and
all their machinery, iu Sandwich, and a warehouse, for the general trans-
action of their business, in Boston.
"In the present action (commenced on the 7th day of March, 1840),
the plaintiffs seek to recover of the defendants $1075, under the following
circumstances : Taxes have been annually levied by the defendants upon
the personal property of the plaintiffs, from the year 1826 to the year 1839,
inclusive, — with the exception of the year 1831, — and have been paid
into the treasury of the defendants. The sums so levied and paid
amounted to $1066. The plaintiffs were also taxed for polls, in 1839 and
the two preceding years, to the amount of $9, which was also paid, as afore-
said, by them. These several poll taxes were assessed for the polls of
minors then in the service of the plaintiffs, at their warehouse in Boston,
and receiving salaries. The plaintiffs were also taxed by the defendants
(in addition to said taxes on personal property and polls), for their real
estate, in 1836 and the three following years. No State tax was levied on
the plaintiffs between 1826 and 1839, except in 1829 and 1830. In 1839
the plaintiffs paid the taxes levied on their personal property as aforesaid,
to the defendants' collector, without any verbal objection to paying the
same ; but they immediately presented to said collector the following
written protest: ' ISoston, November 2, 1839. To Richard D. Harris,
Esq., treasurer and collector of the county of Suffolk and city of Boston.
SECT. I.] BOSTON & SANDWICH GLASS CO. V. CITY OF BOSTON. 415
Sir : The undersij^ned hereby give you notice that they protest ii^iiinst the
payment of $141.25, and asses.sed to them as a tax upon their personal
estate, income, etc, for thePy'ear 1839, in said city and county, as an illegal
tax ; that they pay the same under duress and not voluntarily ; and that
they shall institute suit to recover back the same. Boston &. Sandwich
Glass Company, by Ueming Jakves, Agent.'
" This payment and protest were made on the day after said taxes be-
came payable, but before the usual summons required by law in case of the
non-payment of taxes, was issued or issuable.
"The taxes of the years preceding 1839 were paid by the plaintiffs, with-
out making any objection at the time, — the plaintiffs and defendants sup-
posin^ them to be vi<^
— upon and after the deliver}' to the
plaintiffs of the usual tax bills, so called, issued by the defendant's collector
and treasurer, which tax bills stated the amount of the city and county tax
on the plaintiffs, for polls, real estate, personal estate, and income, and to
which was added a printed statement, which is copied in the margin.'^
" If, upon the foregoing facts, the plaintiffs are entitled to recover the
whole or any part of the taxes so assessed, and are not barred by the
statute of limitations, or otherwise, judgment is to be rendered for such
sum as the court shall order. If the plaintiffs are not entitled to recover
any part of said amount, judgment is to be rendered for the defendants for
their costs."
Dexter and Barrett for the plaintiffs.
J. Pickering, City Solicitor, for the defendants.
The opinion of the court was given by
Dewey, .J, The next inquiry is, whether the payment of these taxes by
the plaintiffs was not so far a voluntary act as to absolve the defendants
from all legal liability to refund the amount thus paid.^ The legal prin-
ciple relied upon, on this point, is this : that if a party^, wnth full knowledge
of all the facts of the case, voluntarily pays money in satisfaction or dis-
charge of a demand-jinjustly made on him,_he cannot afterwards allege
such payment to have been made^by compulsion, and recover back thei
money, even though he should protest, at the time of such payment, that!
he waFnbt legally bound tojay the 8ame^__The reason of the rule, and its
1 "By a vote of the town, passed 27th May, 1811, the taxes must be paid within
sixty days from the time they are issued. At the expiration of the sixty days, the treas-
urer by law Ls directed to issue a summons to those who are then delinquent, and if the
tax Ls not paid in ten days after such summons, with twenty cents for said summons, to
issue his warrants to the special collectors, who will receive from delinquents, in addition
to the tax, the fees allowed by law on serving executions, viz. : four per centum on the
first one hundred dollars ; two per centum on the second one hundred dollars ; and one
per centum on all over two hundred dollars. Interest will also be charged.
"Richard D. Harris, Treasurer and Collector.
" BcsTON, September 1."
^ Only so much of the opinion is given aa relates to this question. — Ed.
1^
^-^
416 BOSTON & SANDWICH GLASS CO. l\ CITY OF BOSTON. [CHAP. V.
propriety, are quite obvious, whcu applied to a case of payment upon a
mere demand of money, unaccompanied with any power or authority to
enforce such demand except by a suit at law. In such case, if the party
would i-esist an unjust demand, he must do so at the threshold^' The
partieTTreat with each other on'equal terms, and if litigation is intended
by the party of whom the money is demanded, it should precede payment.
If it were not so, the effect would be to leave the party who pays the
money the privilege of selecting his own time and convenience for litiga-
tion ; delaying it, as the case may be, until the evidence, which the other
party would have relied upon to sustain his claim, may be lost by the lapse
of time and the various casualties to which human affairs are exposed.
The rule alluded to, when pi-operl}' applied, is doubtless a salutary one,
and is not to be departed from, but in cases resting upon a plain and
obvious distinction from such as are ordinarily and familiarly known as
embraced within it. But the rule has its exceptions ; and cases are not
unfrequent, in which the party paying money upon an illegal demand, and
knowing it to be such when making the payment, has been allowed to re-
cover back the money. If there be a controlling necessity in the case,
\ arising from the peculiar circumstances under which the money is de-
manded, the rule does not apply. Thus where money is extorted by duress^
of goods, assumpsit will lie for it, as was held in the early case of Astley
V. Keynoids,^ where the defendant had in pawn plate of the plaintiff, which
lie refused to dehver without the payment of the money illegally claimed ;
and it was held to be a payment by compulsion.
A payment of money illegally claimed by a collector, as tonnage duty or
light money, and which the plaintiff paid to obtain a clearance of his vessel,
was allowed to be recovered back. Ripley v. Gelstou.* So where money
was paid to liberate a raft of lumber detained in order to exact an illegal
toll, it was held to be a compulsory payment. Chase v. Dwinal.* And
generally, where money is paid to obtain the possession of property which
the party making the illegal demand has under his control, such pay-
ment will be considered as compulsory. Shaw v. Woodcock ; ^ Morgan v.
Palmer.*
Another class of cases, and one to which the present case more appro-
priately belongs, is where the payment of money is made upon an illegal
demand by one who has authority to levy upon the property of the person
upon whom such demand is made, and by a sale of such property to satisfy
and discharge such claim ; and where payment is made upon such a de-
mand, and to prevent such seizure and sale of property, the payment is
also compulsory. In most of the cases found in our own reports, where
an action for money had and received has been instituted to recover back
1 Jones ». Houghton, 61 N. H. 51, accord. — Ed.
2 2 Stra. 916. 8 9 j,ji„js. 201. * 7 Greenl. 134.
ti 7 H. & C. 73. 6 2 B. & C. 729.
SECT. I.] BOSTON & SANDWICH GLASS CO. V. CITY OF BOSTON. 417
money paid on an illegal assessment of taxes, either no (|uestion was raised,
or the facts sliowed the payment to have been made under a protest. The
question seems, however, to have been distinctly presented in the case of
Amesbury "Woollen and Cotton Manuf. Co. v. Inhabitants of Amesbury.*
This was an action to recover the amount of taxes paid by the plaintiffs,
from the year 1814 to 1818, inclusive. The payment for the year 1818
was upon a warrant of distress ; but the payment for the previous years
had been made without protest, or any denial of the defendants' right to
demand the money ; and it was insisted that the payments, for the years
preceding 1818, were voluntary, and being such, the plaintiffs could not
recover the money thus paid, although it was made to appear that such
taxes were illegally demanded. But the court held that the voluntary
payment of a part of the taxes thus assessed did not affect the right of the
plaintiffs to recover the amount of money paid by them upon an illegal
assessment. The obvious reason of the rale, though not prominently set
forth in that case, is clearly stated in the opinion of the court, in the case
of Preston v. City of Boston.^ It arises from the power and authority
placed in the hands of a collector of taxes, by virtue of his warrant, to levy
directly upon the property or person of every individual whose name is
borne on the tax list, in default of payment of the taxes. To use the lan-
guage of the court in the case just refeiTed to, "such warrant is in the
nature of an execution running against the property and person of the
party, upon which he has no day in court, no opportunity to plead and
offer proof, and have a judicial decision oTthe question of his liability^'
Such being the state of the case, the payments made to a collector of taxes
may be considered compulsory, and made under such circumstances as wiU
authorize the party paying the money to recover back the same, if the tax
was illegally assessed.
In addition to the sum thus paid, the party will be entitled to recover
interest from the date of the writ, or time of demanding repayment, in
cases where there was no protest or denial of right, at the time of paying
such taxes ; and when paid under such protest, or denial of liability to pay
the same, the interest will be added from the time of paying the taxes.
The plaintiffs are to have judgment for the amount of taxes paid by
them within six years next before action brought.
''7' ' / /
/^-CPy
^-7
1 17 Mass. 461.
2 12 Pick. 7.
VOL. II. — 27
418 CITY OF DETEOIT V. MARTIN. [CHAP. V.
THE CITY OF DETEOIT v. JACOB MARTIN.
In the Supreme Court of Michigan, June 6, 1876.
" [Reported in 34 Michigan Reports, 170.]
Error to Superior Court of Detroit.
D. C. Ilolbrook for plaintiif in error.
Brennan <£-• Donnelly and G. V. N. Lothrop, for defendant in error.
Marston, J. Plaintiff below, defendant in error, was the owner of a cer-
tain lot in the city of Detroit upon which there was assessed ninety-six
dollars and fifty-four cents on account of the opening of Labrosso street iu
said city. After the assessment was made he received a written notice
signed by the city attorney notifying him of the fact, and requesting him to
pay the amount thereof within sixty days from the date of service of the
notice, and that in case of failure, at the expiration of that time the property
so assessed would be advertised and sold by the receiver of taxes of said
city to pay said assessment. After_the expiration of the sixty days, and on
the 3d of March, 1874, he paid said assessment, to prevent the threatened
sale, undeF protest, and had the protest entered upon the books of the
treasurer. Plaintiffjemonstrated against the opening of said street, and
prior to the ^commencement of suit in this case petitioned the common
council of^said city to repay him thenmnnnt, gith interest, which was re-
fused. The provision of the city charter imder which said assessment, was
levied and collected was by thiscourt, at the June term thereof, 1875,
declared unconstitutionaTTm the case of Paul v. The City of Detroit.^
^ Y / ''^/Z ~Piamtitt brought assumpsit to recover back the amount so paid, and the
/ '^ above facts were found by the jury in a special verdict, upon which judg-
ment was rendered for the plaintiff. The city brought error, alleging that
the payment was a voluntary one, that plaintiff was not entitled to recover,
and that the facts found did not sustain the judgment.
As the case has been presented in this court upon the question whether
the payment was voluntarily made or not, it would be well for us to under-
stand clearly, not only the circumstances under which the money was paid,
but the legal result or effect upon i)laintifr's riglits in case he had not paid
this money, as by so doing we will be better enabled to determine the ques-
tion submitted.
Plaintiff was the owner of the lot assessed. The amount assessed thereon
" ^:a— a.-'T'^
•was illegal and void, the statute under which such assessment was made hav-
ingTiienunconstitutional. The city, through its proper officers, threatened
to sell the lot if the assessment was not paid. To prevent this threatened
sale the money_was paid under protest. Such are the facts in brief.
1 32 Mich. 108.
SECT. I.]
CITY OF DETROIT V. MARTIN.
419
If not paid and the property sold, what would have been the Jegal effect
of such sale ]
If plaintiff had not paid, we may assume the threat would have been
cai-ried out and the property sold. Haw would such sale have affected
plaintiff' 's right or title thereto 1 Would such sale have constituted a
cloud upon his title 1 Assuming that it would, in order to prevent this,
he could have paid the amount under protest, and afterwards have main-
tained an action to recover it back. If a sale under the facts stated would
not have constituted a cloud upon his title, then it may be at least doubtful
whether the plaintiff has any remedy, as it is not pretended there was any
fraud, duress, or seizure of his goods, either actual or threatened, or that
the officers of the city had any authority to seize them. "A cloud upon
one's title is something which constitutes an apparent incumbrance upon it,
or an apparent defect in it ; something that shows prima facie some right
of a third party, either to the whole or some interest in it. An illegal
tax may or may not constitute such a cloud. If the alleged tax has no
semblance of legality, if upon the face of the proceedings it is wholly
unwarranted by law, or for any reason totally void, so that any person
inspecting the record and comparing it with the law is at once apprised
of the illegality, the tax, it would seem, could neither constitute an
incumbrance nor an apparent defect of title, and therefore in law could
constitute no cloud." ^
Under the facts found in this case, and the law applicable thereto, the
sale and conveyance_thereunder would not have constitutedjj^cloud_upon
plaintiff's title, even although by the charter assessments may be declared
a lien upon the land, and the conveyance "privia facie evidence of the regu-
larity of the proceedings, because from an inspection of the conveyance,
which would recite the proceedings, and of the record, it would at once
a^ppear that the assessment was wholly unwarranted by law and totally
void.
The plaintiff at th^ timp hp paid this tax paid it with full knowledge of
all the facts and circumstances. He is conclusively presumed to know^th^
law applicable thereto. Hgis presumed to have known at the time he paid
this tax that the statute under which the assessment was made was void.
4~
and that a sale of the premises therefor would constitute no cloudupon his
title, and that he couldnotbe injured by such sale.
Such being the legal conclusion from the facts found, was the payment
voluntary or involuntary ]
The plaintiff, however, does not bring himself within the principles of
any of these cases.^ He knew all the facts at the time he made the pay-
ment 3 none of his property was held by the party making the demand ; no
1 Cooley on Taxation, 542.
* A portion of the opinion containing a citation and discussion of cases has been
omitted. — Ed.
420 CITY OF DETROIT V. MARTIN. [CIIAP. V.
f ^^ seizure had been made ^rjhreatcued, uor did it appear that the officer
U^i ^~^ making the demand or that any officer had the power to compel in any
^f ^. way payment of the amount, except by a threatened sale of the property
J%^ 7>fci^ ^^l^ssessed, and which if carried out could injure no one, unless it might have
r^^ / laeeu the purchaser. The threat therefore was a harmless one. It could
'^ ur ^f'^o not have alarmed the plaintiff, as it could not have affected his rights. If
^ ^ /-^^irunU^ carried out, the sale would have had no force, and the conveyance there-
1 J ^yf^^under no validity. The assessment was a mere nullity, and could not have
/f l^n/iCf. ^^'^v'-" ^een enforced in any way, there being no statute authorizing it. Yet the
UyuiU 9Mh 7^ plaintiff, knowing all this, voluntarily went to the treasurer's office and
/ / -2? /yi P^^*^ ^*^® amount claimed. The case " stands on no higher ground than it
-^/^C^^^^^^^-t^^^ould if the plaintiff, when the tax was demanded of him by the collector,
/uU-,VruX^'^<bAi/'^^^ said to him : ' I know your tax is illegal and void ; I am under no obli-
gation to pay it, but I shall pay it under protest, and with an intention to
"fficir^ Lv^cUa- (^ sue for and recover it.' ... All the authorities agree that money paid un-
/^/,A / . r der such circumstances cannot be recovered." Sheldon v. South School
iU^^ M/Uypif- District ; ^ Buckley v. Stewart.-
~f^ "yiii/^Jc IuTC^ Where taxes had been levied under an unconstitutional statute, demanded
and paid for a series of years, and the statute being then held void, suit
■(Xl/^ ■ was brought to recover the amount paid, Lowrie, J., said : " We state the
case as one of a voluntary payment of taxes, because there is no pretence
that the defendant's officers did any more than demand the tax under a
supposed authority of the law ; and there is no more a compulsion than
where an individual demands a supposed right. The threat that is supposed
to underlie such demands is a harmless one, — that, in case of refusal, the
appropriate legal remedies will be resorted to. It is supposed that there
was real compulsion, because no certificate would be granted by the health
officer to the ships without the payment of the tax, and without the certifi-
cate no entry would be allowed by the custom-house officers. If this be the
compulsion relied on, it is vain, for it proceeded from the federal officers,
and not from the defendant, who could have nothing to do with it."
Taylor v. Board of Health.^
If under the circumstances in this case the plaintiff could recover, I do
not see what there would be to prevent parties from in all cases voluntarily
paying their taxes under protest, and if at any time afterwards, witliin the
statute of limitations, it was discovered, or decided by a court of competent
jurisdiction, that the statute under which they were levied was illegal, then
bringing an action and recovering them back again. The consequences of
such a doctrine, to say the least, would be very serious.
Wliat effect then does a protest made at the time have 1 Under the
circumstances of this case it has none. It cannot make a payment other-
\\ wise voluntary involuntary. *^AJjarty who has j)aid voluntarily under a^
'^i claim of right shall not afterwards recover back the moneyTinthoughTe
' ' 1 24 Conn. 91. 2 1 Day, 133. 8 31 Pa. St. 73.
SECT. I.]
LAMBORN V. COUNTY COMMISSIONERS.
421
protested at the time against his liability." Shaw, C. J., in Preston v.
Boston ; ^ Lee v. Inhabitants, etc.'^
Where money is illegally demanded, but under a claim of right, and the
payment is an involuntary one, the protest is a notice to the person to
whom the payment is made that the person paying does not acquiesce in the
illegal demand, and thereby surrender up any right he may have to recover
back the money. Besides, a payment without protest would prevent the
party afterwards from recovering interest in an action brought to recover
back the amount paid. Atwell v. ZelufF.* The effect of a protest beyond
this, if any, may not be very clear or well settled.
In this case the city claimed the money imder color of right. The as-
sessment was illegal, and the city had no means of enforcing^ payment^_Qrjof-
eeizmg the person or property of the plaintiff, or of selling his property and
giving any~^ne a colorable title thereto. Knowing~all these facts, the
plan] till voluntarily paid the money, and cannornow reppvi^r it hnck.
The judgment must be reversed, and a judgment entered upon the
special verdict in favor of the city, plaintiff in error to recover costs in both
courts.
The other Justices concurred.
LAMBOEN V. COUNTY COMMISSIONERS.
In the Supreme Court of the United States, October Term, 1877.
[Reported in 97 United States Reports, 181.]
Error to the Circuit Court of the United States for the District of
Kansas.
The facts are stated in the opinion of the court.
Mr. C. E. Bretherton for the plaintiff in error.
Mr. aS'. 0. Thacher, contra.
Mr. Justice Bradley delivered the opinion of the court.
Lambom, the plaintiff in error in this case, is the trustee and represen-
tative of the National Land Company. This company had contracted with
the Kansas Pacific Railway Company for the purchase of a large quantity
of the lands in Kansas, to which the latter company was entitled vmder the
congressional grant made to it, under the name of the Leavenworth, Pawnee,
and Western Railroad Company, and the Union Pacific Railroad Company,
Eastern Division, by the Acts of July 1, 1862, and July 2, 1864. The
contract required the land company to pay all such taxes and assessments
as might be lawfully imposed on the lands. And it provided that the rail-
way company should, at the request of the land company, convey by deed
of general warranty any of the lands purchased, whenever the purchase-
1 12 Pick. 13. 2 13 Gray, 479. » 26 Mich. 120.
422 LAMBORN V. COUNTY COMMISSIONERS. [CIIAP. V.
money and interest and the necessary stamps should be furnished by the
latter. The hnid company, after acquiring this contract, had contracted to
sell large portions of the lands to third parties, taking from them agreements
to pay all taxes and assessments that might be imposed upon the lands sold
to them respectively. The lands in Dickinson County were assessed by the
defendants for taxes for the years 1870, 1871, and 1872, successively, when,
as yet, they were not taxable, no patent having been issued therefor, and
the costs of surveying, selecting, and conveying the same not having been
paid. These taxes, therefore, as decided by usjn the case of Railway
Company v. Prescott,^ were not legal. Nevertheless, the Supreme Court
of Kansas, in that case, had held such taxes legal ; and the taxes for the
year 1870, now in question, not having been paid, the treasurer of Dickinson
County proceeded to advertise and sell the lauds therefor in May, 1871, and,
no person bidding the requisite amount, the lands were bid in for the county.
The assessments for 1871 and 1872 were made against the lands whilst they
were in this position.
By the laws of Kansas, if lands sold for taxes are bid in for the county,
the county treasurer is authorized to issue a tax certificate to any person
who shall pay into the county treasury an amount equal to the cost of
redemption at the time of payment.^ And if any lands sold for taxes are
not redeemed within three years from the day of sale, the clerk of the county
may execute a deed to the purchase!', his heirs or assigns, on the presentation
to him of the certificate of sale.* It is further provided, that if the county
treasurer shall discover, before the sale of any lands for taxes, that on ac-
count of any irregular assessment, or from any other error, such lands ought
not to be sold, he shall not offer such lands for sale ; and if, after any cer-
tificate shall have been granted upon such sale, the county clerk shall discover
that, for any error or irregularity, such land ought not to be conveyed, he
shall not convey the same ; and the coimty treasurer shall, on the return
of the tax certificate, refund the amount paid therefor on such sale, and all
subsequent taxes and charges paid thereon by the purchaser or his assigns,
out of the county treasury, with interest on the whole amount at the rate
of ten per cent per annum.*
In 1872, the plaintiff in error paid into the county treasury the sums due
for taxes, interest, etc., on the said lands in Dickinson County, which had
been sold for taxes as aforesaid, and received tax certificates therefor, without
making any protest, not being aware at that time, as he alleges, that the
lands were exempt from taxation, but supposing that the taxes were legal
and valid. (h\ the second day of January, 1874, after the decision of this
court in Railway Company v. Prescott,* he offered to return the tax certificates
to the county treasurer, and demanded a return of the money paid by him
into the county treasury, with interest, which was refused by the treasurer;
1 16 Wall. 603. 2 Oen. Stats, of Kansas, c. 107, § Ol. " Sect. 112.
* Sect. 120. ^ 16 Wall. 603.
SECT. I.] LAMBORN V. COUNTY COMMISSIONERS. 423
and thereupon this suit, against the board of county commissioners of that
county, was brought to recover the same.
Under this state of facts the judges of the Circuit Court differed in opinion
on the following points of law : —
1. Whether judgment should be rendered for the plaintiff or for the
defendant.
2. Whether the acquisition of said tax certificates and the subsequent
payment of taxes by the plaintiff was a voluntary payment of the money
now sought to be recovered back, in such a sense as to defeat the right to
such recovery.
3. Whether the statute of Kansas ^ gives the right, upon the facts above
found, to the plaintiff to recover in respect of the causes of action set out
in the petition.
Judgment was given in favor of the defendant, in accordance with the
opinion of the presiding judge, and Lamborn sued out this writ of error.
The plaintiff insists that he is to be regarded as a purchaser, and entitled
under the statute referred to,^ or, if not under that statute, then on general
principles of law, to a return of the money paid by him to the county
treasui'er.
The next question to consider, therefore, is whether money thus paid by
way of redemption can be recovered back. There are only three grounds
on which such a recovery can be maintained, — fraud, mistake, or duress.
No fraud is charged.
Mistake, in order to be a ground of recovery, must be a mistake of fact,
and not of law. Such, at least, is the general rule.^ Hunt v. Rousmaniere ; *
Bilbie v. Lumley ; ^ 2 Smith's Lead. Cas. 398 (6th Ed. 458), notes to Harriot
V. Hampton. A voluntary payment, made with a full knowledge of all the
facts and circumstances of the case, though made under a mistaken view of
the law, cannot be revoked, and the money so paid cannot be recovered back.
Clarke v. Dutcher ; ^ Ege v. Koontz ; '' Boston & Sandwich Glass Co. v. City
of Boston ; ^ Benson & Another v. Monroe ; ^ Milnes v. Duncan ; ^^ Stewart v.
Stewart;" and see cases cited in note to 2 Smith's Lead. Cas. 403, 404 (6th
Ed. 466).i2
In the present case, there is no dispute that all the facts and circumstances
of the case bearing on the question of the legality of the tax, were fully
known to the plaintiff. He professedly relied on the law, as declared by the
Supreme Court of Kansas, and supposed that the tax was legal and valid.
The only other ground left, therefore, on which a right to recover back
the money paid can be at all based, is, that the payment was not voluntary,
1 Gen. Stats, p. 1058, §§ 120, 121.
2 So much of the opinion as relates to this question has heen omitted. — Ed.
8 3 Pars. Contr. 398. * 1 Pet. 1. ^ 2 East, 183. 6 9 Cow. (N. Y.) 674.
^ 8 Pa. St. 109. 8 4 Met. (Mass.) 181. 9 7 Cush. (Mass.) 125.
1" 6 B. & C. 671. 11 6 CI. & F. 911. ^ Marriot v. Hampton.
424 LAilBORN V. COUNTY COMMISSIOXEKS. [CIIAP. V.
but by compulsion or duress. It is contended that the plaintifF was obliged
to pay the taxes in order to remove the cloud from the title which had been
raised by the tax sale, and to prevent a deed from being given to some third
party after the expiration of the three years allowed for redemption.
It is settled by many authorities that money paid by a person to prevent
an illegal seizure of his person or property by an officer claiming authority
to seize the same, or to liberate his person or property from illegal detention
by such officer, may be recovered back in an action for money had and
received, on the ground that the payment was compulsory, or by duress or
extortion. Under this rule, illegal taxes or other public exactions, paid to
prevent such seizure or remove such detention, may be recovered back,
unless prohibited by some statutory regulation to the contrary. Elliott v.
Swartwout;^ Ripley v. Gelston;^ Clinton v. Strong/ and cases cited in
2 Smith's Lead. Cas. (6th Ed.) 468 ; Cooley, Taxation, 568.
But it has been questioned whether a sale or threatened sale of land for
an illegal tax is within this rule, there being no seizure of the property, and
nothing supervening upon the sale except a cloud on the title. This view
has been adopted in Kansas. In Phillips v. Jefferson County,* certain Indian
lands, not legally taxable, were nevertheless assessed and sold for taxes, and
a certificate issued to the purchaser. Phillips, having acquired title to the
land, paid the amount of said taxes, at the same time denying their legality,
and saying that he paid the money to prevent tax-deeds from issuing on the
certificates. The court hold that the payment was purely voluntary, and
add : " The money was not paid on compulsion or extorted as a condition.
A tax-deed had been due for nearly two years. Had the plaintiff desired
to litigate the question, he could have done so without paying the money ;
even had a deed been made out on the tax certificate, it would have been
set aside by appropriate proceedings. There was no legal ground for appre-
hending any danger on the part of the plaintiff. He could have litigated
the case as well before as after payment. Neither his person nor property
was menaced by legal process. Regarding, then, the payment as purely
voluntary, it is as certain as any principle of law can be that it could not
be recovered back."
It seems to us that this case is precisely parallel with the one before us.
We are unable to perceive any distinction between them. And as it is
the law of Kansas which we are called upon to administer, the settled
decisions of its Supreme Court, upon the very matter, arc entitled to the
highest respect. "\Vc are not aware of any decision which tends to shako
the authority of Phillips v. Jefferson County. On the contrary, the same
views have been subsequently reiterated. In Wabaunsee County v. Walker,*
a case precisely like it, with the exception that when the taxes were paid
to the county collector to redeem the tax certificates, under a mistaken view
1 10 Pet. 137. 2 9 Johns. 201. 3 9 Johns. 369.
* :, K:in. 112. s 8 Kail. 131.
SECT. I.] LAMBORN V. COUNTY COMMISSIONERS. 425
of the law, he charged twice as much interest as he was entitled to, the
party paid under protest. Yet it was held that he could not recover back
even the illegal interest. Tlie court relied on the previous decision in
Phillips V. Jefferson County, and, after examining various other authorities,
summed up the matter as follows : " A correct statement of the rule gov-
erning such cases as this would probably be as follows : Where a party pays
an illegal demand with a full knowledge of all the facts which render such
demand illegal, without an immediate and urgent necessity therefor, or
unless to release his person or property from detention, or to prevent an
immediate seizure of his person or property, such payment must be deemed
to be voluntary, and cannot be recovered back. And the fact that the
party, at the time of making the payment, files a written protest does not
make the payment involuntary."
The question was again discussed in the recent case of the Kansas Pacific
Railway Co. v. Commissioners of Wyandotte County ; ^ and although, in
that case, a personal tax paid by the railroad company under protest was
recovered back, such recovery was allowed on the ground that, if the tax
was not paid, it would be the immediate duty of the county treasurer to
issue a warrant to the sheriff to levy upon and sell the personal property
of the company therefor. But the principles of the former cases were
recognized and affirmed.
It has undoubtedly been held in other States (though perhaps not directly
adjudged) that a payment of illegal taxes on lands, to avoid or remove a
cloud upon the title arising from a tax sale, is a compulsory payment. The
case of Stephan v. Daniels et al} is of this character ; though in that case
the plaintiff relied on the provisions of a local statute ; and besides this, a
legal tax was combined with an illegal assessment, and perhaps a sale would
have conferred a valid title upon the purchaser. Where such would be the
effect of a tax sale, we cannot doubt that a payment of the tax, made to
prevent it, should be regarded as compulsory and not voluntary. The
threatened divestiture of a man's title to land is certainly as stringent a
duress as the threatened seizure of his goods ; and if imminent, and he has
no other adequate remedy to prevent it, justice requires that he should be
permitted to pay the tax, and test its legality by an action to recover back
the money. But as, in general, an illegal tax cannot furnish the basis of a
legal sale, the case supposed cannot often arise. If the legality of the tax
is merely doubtful, and the validity of the sale would depend on its legality,
according to the law of Kansas, the party, if he chooses to waive the other
remedies given him by law to test the validity of the tax, must take his risk
either voluntarily to pay the tax, and thus avoid the question, or to let his
land be sold, at the hazard of losing it if the tax should be sustained. Having
a knowledge of all the facts, it is held that he must be presumed to know
the law ; and, in the absence of any fraud or better knowledge on the part
1 16 Kan. 587. ^ 27 Ohio St. 527.
426 KAILKOAD COMPANY V. COMMISSIONERS. [CHAP. V.
of the officer receiving payment, he cannot recover back money paid under
Buch mistake.
In conclusion, our judgment is that the questions submitted by the Circuit
Court must be answered as follows : —
To the first : that judgment should be rendered for the defendant.
To the second : that the acquisition of the tax certificates and the subse-
quent payment of the taxes by the plaintiff were a voluntary payment, in
such a sense as to defeat the right to recover in this action.
To tlie third : that the statute of Kansas, refen-ed to in the question,
does not, upon the facts found, give to the plaintiff the right to recover in
respect of the causes of action set out in the opinion.
Judgment affirmed.
RAILROAD COMPANY v. COMMISSIONERS.
In the Supreme Court of the United States, October Term, 1878.
[Reported in 98 United States Reports, 541.]
Error to the Circuit Court of the United States for the District of
Nebraska.
The facts are stated in the opinion of the court.
- Mr. A. J. Popjyleton for the plaintiff in error.
Mr. J. M. Woolworth and Mr. W. H. Mimger, contra.
Mr. Chief Justice Waite delivered the opinion of the court.
This was a suit to recover back taxes for the years 1870 and 1871, paid
by the Union Pacific Railroad Company upon certain lands in Dodge County,
Nebraska. The lands were among those granted by Congress to the com-
pany to aid in the construction of its railroad,^ but the patents were with-
held until after the taxes had been paid, by reason of the joint resolution
of Congress " for the protection of the interests of the United States in the
Union Pacific Railroad Company, the Central Pacific Railroad Company,
and for other purposes," approved April 10, 1869.^
The lands were returned by the United States land officers to the State
auditor and by him to the county clerk for taxation, as required by the
General Statutes of Nebraska, and were placed upon the assessment list of
the county. The general and the local taxes levied for the respective years
were carried out against these lands, with others upon the lists, and the
railroad company designated as owner. In due time the tax-lists, with
warrants attached for their collection, were delivered to the treasurer of
the county. The taxes for the year 1870 became payable May 1, 1871,
and those for 1871, May 1, 1872. The warrants authorized the treasurer,
if default should be made in the payment of any of the taxes charged upon
1 12 Stats. 489. ^ ^j stats. 56.
SECT. I.] RAILROAD COMPANY V. COMMISSIONERS. 427
the lists, to seize and sell the personal pi'opcrty of the persons making the
default to enforce the collection.
No demand of taxes was necessary, but it was the duty of every person
subject to taxation to attend at the treasurer's office and make payment.
During the years 1870, 1871, and 1872, the railroad company was the
owner of other lands in the county, and other property, both real and per-
sonal, on which taxes were properly levied. On the 11th of August, 1871,
the company attended at the treasurer's office, and paid all taxes charged
against it for the year 1870, and on the 20th of July, 1872, all that were
charged for the year 1871. Before these payments were made there had
been no demand for the taxes, and no special effort had been put forth by
the treasurer for their collection. The company had personal property in
the county which might have been seized : but no attempt had been made
to seize it, and no other notice than such as the law implies had been given
that payment would be enforced in that way.
At the time the several payments were made the company filed with the
treasurer a notice in writing that it protested against the taxes paid, for
the reason that they were illegally and wrongfully assessed and levied, and
were wholly unauthorized by law, and that suit would be instituted to
recover back the money paid.
This suit was begun Aug. 20, 1875, and on the trial the judges of the
Circuit Court were divided in opinion as to the question, among others,
" whether the payment of the said taxes under the written protests above
appearing, without any demand therefor or effiart to collect the same, made
the payment a compulsory one in such sense as to give the plaintiff (the
railroad company) the right to recover back the amount thereof as at com-
mon law, there being no statute giving or regulating the right of recovery
in such cases." The presiding judge being of the opinion that the payment
was voluntary and not compulsory, judgment was entered against the rail-
road company, and the case has been brought to this court upon a writ of
error for a determination of the question upon which the judges were divided,
and which has been duly certified upon the record.
We have no difficulty in answering the question in the negative. We
had occasion to consider the same general subject at the last term in Lam-
born V. County Commissioners,^ which came up on a certificate of division
from the Circuit Court for the District of Kansas. As that was a case from
Kansas, we followed the rule adopted by the courts of that State, which is
thus stated in AVabaunsee County v. Walker:^ "Where a party pays an
illegal demand with a full knowledge of all the facts which render such
demand illegal, without an immediate and urgent necessity therefor, or
unless to release his person or property from detention, or to prevent an
immediate seizure of his person or property, such payment must be deemed
voluntary, and cannot be recovered back. And the fact that the party at
1 97 U. S. 181. 2 8 Kan. 431.
428 RAILED AD COMPANY V. COMMISSIONEES. [CHAP. V.
the time of making the payment files a written protest does not make the
payment involuntary."
This, as we understand it, is a correct statement of the rule of the com-
mon law. There are, no doubt, cases to be found in which the language of
the court, if separated from the facts of the particular case under considera-
tion, would seem to imply that a protest alone was sufficient to show that
the payment was not voluntary ; but on examination it will be found that
the protest was used to give effect to the other attending circumstances.
Thus, in Elliott v. Swartwout ^ and Bond v. Hoyt,'^ which were customs cases,
the payments were made to release goods held for duties on imports ; and
the protest became necessary, in order to show that the legality of the de-
mand was not admitted when the payment was made. The recovery rested
upon the fact that the payment was made to release property from deten-
tion, and the protest saved the rights which grew out of that fact. In
Philadelphia v. Collector* and Collector v. Hubbard,* which were intemal-
revo.nue tax cases, the actions were sustained " upon the ground that the
several provisions in the internal-revenue acts referred to warranted the con-
clusion as a necessary implication that Congress intended to give the tax-
payer such remedy." It is so expressly stated in the last case, p. 14. As
the case of Erskine v. Van Arsdale ^ followed these, and was of the same
general character, it is to be presumed that it was i)ut upon the same ground.
In such cases the protest plays the same part it does in customs cases, and
gives notice that the payment is not to be considered as admitting the right
to make the demaiad.
The real question in this case is, whether there was such an immediate
and urgent necessity for the payment of the taxes in controversy as to im-
ply that it was made upon compulsion. The treasurer had a warrant in
his hands which woujd have authorized him to seize the goods of the com-
pany to enforce the collection. This warrant was in the nature of an exe-
cution running against the property of the parties cliarged with taxes upon
the lists it accompanied, and no opportunity had been afforded the parties
of obtaining a judicial decision of the question of their liability. As to this
class of cases Chief Justice Shaw states the rule, in Preston v. Boston," as
follows : " When, therefore, a party not liable to taxation is called upon
peremptorily to pay upon such a warrant, and he can save himself and hia
property in no other way than by paying the illegal demand, he may give
notice that he so pays it by duress and not voluntarily, and by showing
that he is not liable, recover it back as money had and received." This,
we think, is the true rule, but it falls far short of what is required in this
case. No attempt had been made by the treasurer to serve his warrant.
He had not even personally demanded the taxes from the company, and
certainly nothing had been done from which his intent could be inferred
1 10 Pet. 137. 2 13 Pet. 266. 3 r, ^y^n. 730.
« 12 Wnll. 13. * 15 AVall. 75. « 12 Pick. 14.
SECT. I.] PARCHER V. MARATHON COUNTY. 429
to use the legal process he held to enfoi'ce the collection, if the alleged ille-
gality of the claim was made kiiowu to him. All that appears is, that the
company was charged upon the tax-lists with taxes upon its real and per-
sonal property in the county. After all the taxes had become delinquent
under the law, but before any active steps whatever had been taken to en-
force their collection, the company presented itself at the treasurer's office,
and in the usual course of business paid in full everything that was charged
against it, accompanying the payment, however, with a general protest
against the legality of the charges, and a notice that suit would be com-
menced to recover back the full amount that was paid. No specification
of alleged illegality was made, and no particular property designated as
wrongfully included in the assessment of the taxes. The protest was in
the most general terms, and evidently intended to cover every defect that
might thereafter be discovered either in the power to tax or the manner of
executing the power. Three years afterwards, and after the decision in
Railway Company v. McShane,^ which was supposed to hold that the par-
ticular lands now in question were not subject to taxation, this suit was
brought. Under such circumstances we cannot hold that the payment
was compulsory in such a sense as to give a right to the present action.
As the answer to this question disposes of the case, it is unnecessary to
consider the other questions certified.
Judgment affirmed. .
luA^'^ PAECHER AND Others v. MARATHON COUNTY. ^{L ^2::;,,t^c,.^^ A ^
' I ' ' rs THE Supreme Court of Wisconsin, May 10, Tsq,!L_ —
\Reportedinb2 Wisconsin Reports, Z^^.] ., / . / i ^ ^<-^ ^'^U.sry^
Appeal from the Circuit Court for Marathon County.
This action was brought to recover back the amount of a tax assessed
ppon the personal property of ISe plaintifis injthe year 1877, in the city
of "Wausau, which the plaintiffs allege they paid by compulsion and undgr
protest. It was admitted on the trial, by the defendant county, that the
tax was illegal. It appears that the treasurer of "Wausau demanded the
amount of such tax from the plaintiffs, who refused to pay it on the ground
that it was illegal and void. The city treasurer returned the tax as de-
linquent to the county treasurer of Marathon County, who afterwards
issued his warrant to the sheriff to collect the same pursuant to the
statute. It is alleged in the complaint that " the said sheriff did present
said warrant for the collection of said personal-property tax, for the year
1877, to these plaintiffs, and demanded payment thereon, but that these
plaintiffs refused to pay the same for the reason that the same was illegal
J 22 Wall. 444.
l^^
/
430 PARCHER V. MARATHON COUNTY. [CHAP. V.
and void ; that said sheriff threatened to levy upon the personal property
of these plaintiffs, and advertise and sell the same to satisfy said personal-
property tax, whereupon, to save said personal property from sale, and
under compulsion and protest, they paid the sheriff' the amount of said
tax, together with interest and his costs, and took his receipt therefor ; but
that they notified said sherill' that they considered said tax illegal and void,
and that they should attempt to recover the same." It is further alleged
that the sheriff paid the amount of the taxes so paid by plaintiffs, into the
county treasury for the use of the county. The substance of the answer
is, that the plaintiffs, with full knowledge of all the facts which invalidated
the tax levy, voluntarily paid the sheriff the amount of taxes so assessed
against them. A trial of the action resulted in a verdict and judgment
for the defendant ; and plaintiffs appealed from the judgment.
The case is further stated in the opinion.
For the api)ellants there was a brief by James & Crosby, and oral
argument by Mr. Crosby.
C. F. Eldred for the respondent.
Lyon, J. It is not denied that the complaint states a cause of action.
The testimony given on the trial tended to prove all the material aver-
ments in the complaint, and was undoubtedly sufficient to support a verdict
for the plaintiffs had the jury found for them. The only question litigated
on the trial was, whether or not the plaintiffs paid the illegal tax volun-
tarily. On this question, after submitting to the jury the question whether
the payment was made by them with the view of preventing a levy upon
and seizure of their goods, with an instruction that if made for that pur-
pose the plaintiffs should recover, the learned circuit judge further in-
structed the jury as follows: " It_js^iot_ enough that an officer gets a
warrant in^isjiand and notifies all taxpayers. ' The amount of this tax
must be paid, or I j^vill e_nforce the collection by levy.' That is not enough.
It nrust b^a present purpose, an intent, of levying, — of taking the_goods_
I then and there ; not that he will do so in the course of some future days,
I iHiftliat he intends to levy, and having that intention and purpose, and
warrant of authority to do it, the party pays to prevent his goods being
seized ; — if he docs it under such circumstances it is compulsory payment.
If it is not under such circumstances, it is what the law calls a voluntary
payment. However the man may squirm about the tax, it is called a
voluntary payment, and he cannot recover it back. A threat to levy, to
levy now at the time, and with the purpose to take the goods then and
there, and the money paid then and there to prevent the act, is what ia
meant by compulsory payment in the law ; and a person who pays that
way, the tax being illegal, can recover it back ; not otherwise."
In Van Bnren v. Downing,' this court had occasion to consider the ques-
tion (jf the liability of an officer or agent to refund an illegal tax or duty
1 41 Wis. 122.
SECT. I.] PARCHER V. MARATHON COUNTY. 431
collected by him and paid over to his principal. The defendant in that
case was an assistant treasury agent, and as such collected of the phiintilf
a license fee imposed by a statute afterwards adjudged invalid, and paid the
fee into the State treasury. The action was to recover back the sum so
paid. Because the plaintiff did not pay the fee under protest, or deny his
liability therefor, or notify the agent of his intention to bring suit to recover
it back, we held the payment voluntary, and that the agent was not liable
after he had paid the money into the treasury in good faitli. The cases
cited in the opinion abundantly show that the rule of the liability of officers
or agents in such cases is correctly stated in Erskine v. Van Arsdale.^ That
was an action against a collector of internal revenue to recover the amount
of an illegal tax assessed against and paid by Van Arsdale. This is the
rule laid down by the court : " Taxes illegally assessed and paid may
always be recovered back if the collector understands from the payer that
the taxes are regarded as illegal, and that suit will be instituted to compel
the refunding of them." Judge Cooley, in his treatise on the Law of
Taxation, says that " all payments of taxes are supposed to be voluntary
which are not made under protest or under the apparent compulsion of
legal process," and that " when a protest is relied upon, nothing very
formal is requisite." Page 548. He also quotes approvingly the rule
laid down by the Supreme Court of the United States in Erskine v. Van
Arsdale.-^
Such is the rule in an action against the officer or agent to whom the
money was paid in the first instance. Certainly no stronger rule prevails
in favor of the principal after the money has been paid over by such officer
or agent. Indeed, there are authorities to the effect that the rule is more
favorable to the plaintiff in the latter case than when the action is against
the officer or agent. This distinction is mentioned in Atwell v. Zeluff.^
We need not discuss this distinction. We prefer to consider this case on
the theory that to entitle the plaintiff to recover against the county he
must make as strong a case as he would be required to make were his
action against the sheriff*. Atwell v. Zeluff" is an instructive case on the
general question of what are and what are not voluntary payments. The
rule is there stated as follows : " Where an officer demands a sum of money
under a warrant directing him to enforce it, the party of whom he demands
it may fairly assume that, if he seeks to act under the process at all, he will
make it effectual. The demand itself is equivalent to a service of the writ
on the person. Any payment is to be regarded as involuntary which is ^
made under a claim involving the use of force as an alternative, as the .^^fc^v^ '^ ,j^'^^rf
party of whom it is demanded cannot be compelled or expected to await >
actual force, and cannot be held to expect that an officer will desist after z
once making demand. The exhibition of a warrant directing forcible pro- ?
ceedings, and the receipt of money thereon, will be in such case equivalent /
1 15 Wall. 75. 2 26 Mich. 118.
432 BRUECHER V. VILLAGE OF PORT CHESTER. [CHAP. V.
to actual compulsion. " We do nut say that we would assent to that rule
as broadly as there stated. Perhaps a protest, at least, should be requh-ed,
especially if the action be brought against the officer or agent after he has
paid over to his principal the money illegally collected. The opinion in
the Michigan case recognizes the hardship of the rule, and suggests a
modification of it by the legislature.
But whether the rule of the Michigan case is or is not correct, we think
it must be held, on principle and authority, that the payment of a demand
^Y^'C'f-^- ^A^.*~V-ti"der compulsion of legal process, such payment being accompanied by
/ ^^ a protest that the demand is illegal and that the payer intends to take
'-^^C^yu^^^^*^ Ml^^1^t\ measures to recover back the money paid, is not a voluntary payment
'/^iJZ^ ^W
And further, to constitute compulsion of le^^al process it is not essential
that the officer has seized, or is immediately about to seize, the property
of the payer by virtue of his process. It is sufficient if the officer demands
Q ■ 1^1 jP^y^^G^^t ly virtue thereof, and manifests an intention to enforce collection
' J^^-^ ■^<^ jby seizure and sale of the payer's property at any time. On the general
question we are considering, numerous authorities are cited in Cooley on
■Taxation, in the notes on pages 5G8-571, The case of Powell v. Sup'rs of
IZ (f^^^LiJl^^ZJ^ ^^- Ci'oix Co.,^ is an illustration of what constitutes a voluntary payment.
_^ TS^T^^oA^ ^^ follows, from the views above expressed, that when the learned circuit
'^ ^ I judge instructed the jury that unless, when the tax was paid, the sheriff
had the present intention and purpose to seize the plaintiffs' goods then
and there, the plaintiffs could not recover, and that an intention to seize at
a future day was not sufficient, he laid down a limitation of the liability of
the defendant which the law does not sanction.
For this error the judgment must be reversed, and the cause remanded
for a new trial. '
^^ , By the court. _ So ordered, i /
FRANCIS BRUECHER, Respondent, v. THE VILLAGE OF PORT^o^
CHESTER, Appellant. f iPMvwuuiX . tO^v^ ^
In tue Court of Appeals of New York, jANUARTn^.^TSlBS;*^ ^^.
[Reported in 101 New York Reports, 240.] [^^ ^ jfti .- . /JV,,
Appeal from judgment of the General Term of the Supreme Court, in tUe Aa
first judicial department, entered upon an order made the first Monday of .|
March, 1883, which reversed a judgment in favor of defendant, entereci/fM-
upon an order sustaining a demurrer to plaintiffs complaint, and whichkr -
overruled the demurrer. L/Y ^^Aflr ''-o Ka\>'
The substance of the complaint is set forth in the opinion. Tjvt £*^ti\^^ irvf»TiT
^ / 1 40 Wis. 210. /^-^ iA-^cyC^^ u^ cJrvt.'V^^^ i/^ '
J
SECT. I.] BRUECHER V. VILLAGE OF PORT CHESTER. 433
David B. 0(jde)i and Charles W. Sloane for appellant.
/. T. WiUiams for respondent.
Earl, J. The plaiutift' in his complaint alleged that in 1875 he owned
certain lands situated in the village of Fort (Jhester, and that they were
assessed for certain local improvements ; that the commissioners of estimate
and assessment appointed under the defendant's charter to apportion and
assess the expenses of the improvement upon the adjacent premises did not
take the oath required by the charter to be taken by them, nor did they,
after making their estimate and asseswient, publish a notice^ of the^time
and place when and where interested parties could be heard, in manner and
form as required by the charter, whereby, and by means of such omissions,
the report of the commissioners and the confirmation thereof, and the
assessment upon his lands, were illegal and wholly void at law ; and ■ he
further alleged that the defendant was estopped from denying that the
assessment was totally void in law, for the reason that, since the payment
of the assessment, the defendant was impleaded by one Sarah Merritt and
others in an action presenting the same identical issues and question pre-
sented in this action, wherein it was adjudged that the assessment was
utterly void for the reasons and upon the grounds above stated. Merritt
V. The Village of Port Chester.^ And he further alleged that on the 27th
day of February, 1875, a warrant w^as issued for the collection of the assess-
ment upon his premises, and the defendant by virtue thereof threatened to
sell and was about to sell his premises for the payment of the assessment,
and that he, having before that time sold his premises and being under
contract to convey the same free from all incumbrances, was unable to do so
by reason of the assessment, which was an apparent lien and cloud upon
the premises, and thus he was compelled, in order to complete the convey-
ance of his premises, to pay and did pay to the treasurer of the village and
into the treasury thereof the sum of $489.30 under protest, nevertheless,
and the same was received by the treasurer and into the village trea8^r^•,
as so paid under protest, to wit : that the said assessment was utterly void
and of no elTect, and that all the rights of the plaintiff should be and re-
main reserved to him, and in no way waived, foregone, or pretermitted by
such payment; and he demanded judgment for the sum so paid and in-
terest. To the complaint the defendant demurred on the ground that it
appeared upon the face of the complaint that it did not state facts sufficient
to constitute a cause of action.
It does not appear from anything alleged in the complaint that this
asaasamenFwas invalldjipon Tts face, or that its mvalidtty wOiiM appearin
an^_4a:Qgeeding_la-ken to enforce it. The contrary must have beeir^e-
termined in the case of Merritt v. Village of Port Chester ; but it is dis-
tinctly alleged in the complaint, and was decided in this court in that case,
that the assessment was in fact utterly illegal and void. Hence it was not
1 71 N. Y. 309.
VOL. II. — 28
y^
43-4 BRUECHER V. VILLAGE OF PORT CHESTER. [CHAP. V.
necessary for the i)laiiitiff to institute any action or proceeding to vacate
the assessment and thus liave it annulled and set aside before commencing
this action. If the assessment had been merely irregular, informal, or un-
just, the assessors having jurisdiction to impose the same, then, before an
action to recover back the money paid in satisfaction thereof could be main-
tained, it would have been necessary to have the same vacated or annulled
in some way, and thus removed as an obstacle out of the way. But where
an assessment is in fact utterly void on the ground that the assessors had
no jurisdiction to impose the same, then an action may be maintained to
recover back money paid in satisfaction thereof without first haying the
assessment set aside or vacated. And so it has been held. Newman v.
Supervisors of Livingston Co. ; ^ Strusburgh v. Mayor, etc. ; " Horn v. New
Lot8.8
These rules in reference to money paid upon assessments were established
from the analogy which was supposed to exist between completed assess-
ments and judgments. Money paid upon a judgment which is merely ir-
regular or erroneous cannot be recovered back while the judgment remains
in force. But money involuntarily paid upon a judgment which is utterly
void can be recovered back without first causing the judgment to be re-
versed or vacated.
This was not a voluntary payment by the plaintiff within the rules of
law applicable to such payments. We must assume that the assessment
was valid uponjts face, and that a valid warrant was out for its collection ;
and it has been repeatedly held that payment to an officer who has a valid
process which he can enforce and which he threatens to execute is not a
j voluntary payment. Peyser v. Mayor, etc.* And the moneyjhaving been
j T;aken from the plaintiff wrongfully and the defendant having no right to
j retain the same, no demand prior to the commencement of the action was
"necessary^
We are, therefore, of the opinion that the judgment should be afl&rmed,
with costs.
All concur. Judgment affirmed.
1 45 N. Y. 676. » 37 N. Y. 452. » S3 N. Y. 100. * 70 N. Y. 497.
SECT. II.] BKOWN V. HODGSON. 435
SECTION 11.
PAYMENT IN DISCHAKGE OF AN OBLIGATION.
BROWN V. HODGSON.
In the Common Pleas, November 26, 1811.
\Reported in 4 Taunton, 189.]
Payne sent butter to London consigned to Pen, by the hands of ihe
plaintiff; a carrier, who by mistake delivered it tojthejJefendant, and he
appropriated it^tojiis own use, selling it and_j;ece[ving^jhejnoirey^ Pen
had paid i^ayne for the^butter, and Brown, admitting the mistake he had
made, paid Pen the value^ The plaintiff decla7edlor"goods sold and deliv-'
ered, and for money paid ; and delivered to the defendant a bill of particu-
lars, " To seventeen firkins of butter, 551. 6s.," not saying for goods sold.
It was objected for the defendant, that there was no contract of sale, either
express or arising by implication of law between the parties, upon this
transaction, and that although the plaintiff might have recovered in trover,
he could not bring assumpsit for goods sold ; the count for money paid was
not adverted to at the trial. The jury found a verdict for the plaintiff.
Vaughan, Serjt., in this ternVobtained a rule nisi to set aside the ver-
dict; and
Shepherd, Serjt., now showed cause against it,
Mansfield, C. J. At the trial my attention was not called to the count I
for money paid, but upon this count I think the action may be sustained. | ^<iX^ A>- ^ru^
The plaintiffs pay Pen on account of these goods being wrongfully detained ' -^ cL^d, J...^ A .^^
by -Hodgson; they pay the value to the person to whom botli they and / - ■ '
:Pen were bound to pay it; and this, therefore, is not the case of a man'
I officiously and without reason paying money for aiiother; and therefore
the action may be supported. As to the objection taken respecting the bill
tot particulars, bills of particulars are not to be construed with all the
jstrictness of declarations ; this bill of particulars has no reference to any
founts, and it sufficiently expresses to the defendant that the plaintiff's*
claim arises on account of the butter.
Heath, J. We must not drive parties to special pleaders to draw their
bills of particulars.
' Rule discharged.^
' 1 Sills V. Lamg, 4 Canipb. 81, contra. — Ed.
.^^
N^
"^■^""^^^^ ^ 436,il^,^^"^:ZJt^^ > HALES t". FREEWAN. / c^
^7^15 ^ . ;; SIja PHILIP hales, Bart., and Another, tv, FREE^MA
/^ /*^^^. ^^>^ C^^ <^c^-_^ ''"^^ *-^^ ^<^-i^-^- ^^«^— ' '
^ ' ^^ In the Common Pleas, November 13, 1819.
-_v / Assumpsit on the money counts ; plea, general issu*<^ At the trial before
^•'^''^*^ Dallas, C. J., at the Westminster sittings after Hilary term, 1819, a ver-
' ^xxtn**/>^'<-^ct was found for the plaintiffs for 114^. 15s., subject to the opinion of the
i-u,^^/ ■ court on the following case.
Dame Mary Liuch, by her last will dated the 31st Januaiy, 1786, de-
/» //Z-cotA, r fHy^^^^ ^^^ ^^^ ^^^^ estates to the plaintiffs and Sir Brooke Bridges and John
J Conant, both since deceased (upon trust), and bequeathed to the defendant,
W/ -^-K. tuiu.' Nancy Freeman, an annuity of lOOL, clear of all deductions, during her life,
and declared, that the same should be payable quarterly on the usual
Liyp^^4yf}-- " quarter days, and secured upon her real estates ; the first payment was
directed to be made on the quai'ter day after her decease. The testatrix
died in June, 1808. By indenture of assignment dated the loth August,
1809, the defendant, in consideration of 400/. advanced, assigned to ilary
Mayo the sum of 58/. 16s., part of the said annuity, with proviso for re-
demption on payment of the 400/. By an indenture of assiginuent of
several parts, dated 15th April, 1813, to which the defendant, Mary Mayo,
and Jane Peckharnis were parties, the defendant and Mary Mayo, in con-
sideration of 250/. paid to the defendant, and 400/. paid to Mary Mayo,
assigned to Jane Peckharnis the whole of the said annuity of 100/., with a
covenant from the defendant that the annuity was free from incumbrances.
The plaintiffs omitted to pay the legacy duty of 10/. per cent per annum,
until the time hereinafter mentioned, and regularly paid the annuity to
the defendant in full, without demanding, receiving, or deducting the said
duty chargeable thereon, down to the 25th March, 1813, and afterwards to
Jane Peckharnis. The plaintiffs, on the 24th May, 1816, paid to the
Stamp Office the sum of 57/. 7s. M., and on the 28th August, 1816, the
further sum of 57/. 7s. 6c/., making together the sum of 114/. 15s., the full
amount of the duty. The first application to tlie defendant for payment
was made on behalf of Mrs. Peckharnis, on the 21st May, 1817. The
plaintiffs afterwards, on the 9th January, 1818, applied for payment to
the defendant on their own behalf.
The question for the opinion of the court was, whether the plaintiffs
were entitled to recover ] If the court should be of that opinion, then the
verdict was to stand, otherwise a nonsuit was to be entered.
Lens, Serjt., for the plaintiff.
Taddy, Serjt., contra.
SECT. II.] HALES V. FREEMAN. 437
Dallas, C. J. This case depends on the construction of clauses in two
different statutes, viz., the 36 G. 3, c. 52, and the 45 G. 3, c. 28. By the
former statute, whicli relates to personal property only, it is directed ^
"that the duty chargeable upon annuities shall be paid by the person or
persons having or taking the burthen of the execution of the will, or other
testamentary instrument, or the administration of the personal estate of
any person deceased, or upon retainer for his, her, or their own benefit, or
for the benefit of any other person or persons of any legacy, or any part
of any legacy, or of the residue of any personal estate, or any part of such
residue which he, she, or they shall be entitled so to retain, either in his,
her, or their own right, or in the right or for the benefit of any other person
or persons ; and also upon delivery, payment, or other satisfaction or dis-
charge whatsoever, of any legacy or any part of any legacy, or of the residue
of any personal estate, or any part of such residue, to which any other per-
son or persons shall be entitled ; and in case any person or persons having
or taking the burthen of such execution or administration as aforesaid, shall
retain for his, her, or their own benefit, or for the benefit of any other
person or persons, any legacy or any part of any legacy, or the residue of
any personal estate, or any part of such residue which such person or per-
sons shall be entitled, so to retain either in his, her, or their own right, or
in the right or for the benefit of any other person or persons, and upon
which any duty shall be chargeable by virtue of this act, not having first
paid such duty, or shall deliver, pay, or otherwise howsoever satisfy or dis-
charge any legacy or any part of any legacy, or the residue of any personal
estate, or any part thereof, to which any other person or persons shall be
entitled, and upon which any duty shall be chargeable by virtue of this
act, having received or deducted the duty so chargeable, then, and in every
of such cases the duty, which shall be due and payable upon every such
legacy and part of legacy, and residue and part of residue respectively, and
which shall not have been duly paid and satisfied to His Majesty, his heirs
and successors, according to the provisions of this act, shall be a debt of
such person or persons having or taking the burthen of such execution or
administration as aforesaid, to His Majesty, his heirs and successors, and
in case any such person or persons so having or taking the burthen of siich
execution or administration as aforesaid, shall deliver, pay, or otherwise
howsoever satisfy or discharge any such legacy or residue, or any part of
any such legacy or residue, to or for the benefit of any person or persons
entitled thereto, without having received or deducted the duty chargeable
thereon (such duty not having been first duly paid to His Majesty, his
heirs or successors, according to the provisions herein contained), then and
in every such case such duty shall be a debt to His Majesty, his heirs and
successors, both of the person or persons who shall make such delivery,
payment, satisfaction, or discharge, and of the person or persons to whom
1 S. 6.
438 HALES V. FREEMAN, [CIIAP. V.
the same shall be made," The legacy in question is an annuity charged
on a real estate, and the 45th of the King puts that on the same footing
as personal property. The 8th section of the first act directs, " That the
value of any legacy given by way of annuity, whether payable annually or
otherwise for any life or lives, or for years determinable on any life or lives,
or for years or other period of time, shall be calculated, and the duty
chargeable thereon shall be charged according to the tables in the schedule
hereunto annexed ; and the duty chargeable on such annuity shall be paid
by four equal payments, the first of which payments of duty shall be made
before or on completing the first year's annuity, and the three others of
such payments of duty shall be made in like manner successively, before
or on completing the respective payments of the three succeeding years'
annuity respectively." In this case the payment is made after four years,
the executor not having deducted the duty within that time, and the action
is brought on the clause of the statute, which enacts, that^ jf_the duty be
not deducted, it shall be the debt both of the executor and the legatee.
With respect to the latter party, he remains unquestiona})]}'^ liable, not-
withstandlng^the^ower of the executor to deduct, if the executor, having
omitted^To deduct, incur a debt to the crown ; if he pay tliat debt out of
Eis own fund, the amount^ the duty becomes a-debt from th^Jcgatee to
the executor. It is urged that all the instalments ought to be paid in four
years, but the statute goes on, and anticipating the case of an omission of
payment by the executor, makes the legatee also a debtor : that puts by
all the argument as to the four years. There is no necessity to travel back
to former decisions, because I go on this statute alone. This does not re-
semble the case of a voluntary payment, or a payment made in ignorance
of fact'oF law] So far from being a voluntary payment, it is clearly cona-
pulsory on the clause of the statute holding both executor and legatee
liSble at any time. Both parties, therefore, bemg^ Tia5Te~Tn this case, the
payment made by^The plaintiff was in substance a payment for the legatee,
and the plaintiff is entitled to recover.
Park,"!] At first sight it seems a hardship on the legatee, that, after
some time had elapsed, and after an assignment of tlie annuity, she should
be called on to pay the duty ; but it would be much harder if the executor,
who has no interest whatever in the annuity, should pay the duty_out_of
his own pocket. It is not necessary to resort to former decisions, because
the statute on which the present case turns, is so different from the stat-
utes on which those decisions are grounded, that no comparison can arise
between them. In tlie decisions on tlie property tax, paving, and land tax
acts, the court went on the words of the statute, which make the occupier
liable. The executor here is only made liable for_the J2encfit of goverfl-
ment, and not on his own account. He has not paid the money voluntarily,
as in Brisbane v. Dacres and Bilbie v. Lumly, but upon compulsion. He^
pays, not on his own account, but on that of the legatee. The executor is
SECT. II.] BLEADEN V. CHARLES. 439
no more than surety for the legatee, and his case falls within the principles / < <-
applied to the case of sureties. " i
BuRROUGH, J. This cas"e~turns entirely on the clause of the act of par-
liament. The party who receives the benefit of the legacy certainly ought
to bear the charge of the duty ; and the annuitant here not only had the
whole beneht oflier legacy, but received more than she was entitled to, the
duty not having been deducted. It has been urged that this was a volun-
tary paymetiTj but a payment cannot be called voluntary, where, if the
party omit to make it, he may be compelled to do so, and here the plain-
tiff might have been compelled to pay ; now, where a party may be com- 1,
pelledto make a payment, he is always entitled To^ make it without f,/ V
compulsion. Here the plaintiff is made liable as a trustee, whcTappResliIl, '
the money arising under the will for the benefit of others. If the plaintitf
had been sued by the crown, and had paid this money, can there be a
doubt that it would have been a payment made for the legatee 1 The ex-
ecutor is not to bear the burthen, but the legatee. The case on the land tax
act does not apply ; that is a tax falling completely on the tenant of the
land, and he must pay on account of his own possession. It is so much a
tax on the tenant, that, except for the purpose of enabling the landlord to
vote at elections, the landlord's name would not be on the rate.
EiCHARDSON, J. This case is distinguishable from Denby v. Moore and
Andrew v. Hancock, by reason of the clause in the sixth section of the act.
In Denby v. Moore, the tenant had paid an excess of rent voluntarily, so in
Andrew v. Hancock ; and nothing in either case remained due from the
tenant to the crown. But in the present instance the duty remains a debt
as welljn_the legatee as the executor._ It is urged, that the executor can-
not recover from the legatee, because the duty is the debt of both of them ;
but the contrary seems to result from the act : ^he^ executor standsin_the_
situation of a surety, and his principal becomes liable to him for'whatever
he "has paid. In this case, therefore^tTiere must Te^ judgment fot" the-
plaintiST "^ Judgment for the plaintiff accordingly.
^- "--^ ^^^-^^^^^^^ fc^/>-;=^LEADE]Sr V. CHARLES. ^^-^^-—^ ^X>^.*^^-^ «<i-^^-^
,fs^l jt. ^^,^^^^-In THE Common Pleas, January, 15, 1^^^^,^^^.^
^-^^■^7^^ ^^^;^^ /^Eeported in 7 Bingham, 246.] —----7 y^^~^ ^ .i^^
Assumpsit for money paid by the plaintiff to the use of the defendant,^^^.^^ /^^^^-^ ^i,.^^
under the following circumstances : — ^^^^ ' ^^^ ^^ ^u^c^
Early in the last year, one Hay, who was indebted to the plaintiff, upon / ^ T
a certain emergency drew a bill for 68^. 15s., which the plaintiff accepted,'^ — -^^^^—f
and delivered to Hay to assist him in his difficulty. inr^^cTd^A^^ . <^
440 BLEADEN V. CIIAKLES. [CIIAP. V.
Hay, however, got over the difficulty without having recourse to the bill,
and shortly afterwards gave it up to the plaintiff; but before the plaintiff
had destroyed it, Hay bargained with the defendant for 20/. worth of goods,
which the defendant refused to sell without some security for payment ;
whereupon Hay again obtained from the plaintiff the bill for 68/. 15s.,
which he indorsed, and, disclosing the circumstances under which it had
been obtained, placed in the hand of the defendant as a security for the pay-
ment of the goods m question ; the goods were thereupon delivered to Hay.
Hay afterwards paid for them by a check on his banker, and requested
the defendant to restore the bill for 08/. 15s. Hay, however, being still
• indebted to the defendant to a considerable amount, the defendant refused
jto restore the bill, and afterwards indorsed it to one Henderson, to whom
I he was himself indebted. Henderson sued the plaintiff, who was thereupon
I obliged to pay the bill and the costs of the action.
The plaintiff then commenced this suit against the defendant, for the
amount of the bill and the costs of Henderson's action.
The declaration contained a special count and a count for money paid,
but the special count was abandoned.
• Gaselee, J., before whom the cause was tried, left it to the jury to say
I whether the bill was left as a security for the 20/. worth of goods supplied
jby the defendant to Hay, or for the whole of Hay's debt.
The jury found that the bill was left as a security for those goods only,
]/ , / , and gave a verdict for the plaintiff for the amount of the bill and the costs
!^r^ of Henderson's action. An objection having been made on the part of the
■Ufi^'f,^ ''-'^^''^•^■^^defendant, that the action did not lie, the learned judge saved the point;
^ ^ P ^ ^iL. whereupon
I Spankie, Serjt., obtained a rule nisi to enter a nonsuit instead of the
verdict, on the ground that there was no privity between the plaintiff and
defendant, and that, therefore, the money could not be said to have been
paid to the use of the latter. At all events the defendant was not respon-
sible for the costs of Henderson's action, which the plaintiff ought not to
have resisted.
Wilde, Serjt., showed cause.
Spankie, contra.
TiNDAL, C. J. It seems to me that this transaction amounts to money
paid by the plaintiff for the use of the defendant. The money has been
paid by him in a way which has been serviceable to the defendant, and
there appears to liave been a privity between them arising out of^tlie man-
ner in wliich tlie lull uus ulilMiiTTHi"1uKrdcj)ositci]. ns a -t»c<:^U44t^; tiifi drtfmid-
aut being apprised that nothing was due from the plaintiff to. Hay. Ijut
it is clear tliat afterTTay had paid tlie clefcndantfor yie^go^ds^_th£jndorse2
mcut of tlic i)iTrby the doleiidant wtlFwrongful, and the payment hyjhc^
plaintiffupon Henderson's suing him7cony)uliiQry^ There has been, there-
fore, acompulsory payment by tTie plaintiff, induced by an act of the de-
SECT. II.] SrENCEIt V. PAKKY. 441
fendant, — an act of which he has had the full benefit. That is money paid
to the defendant's use. If the defendant had sued the plaintiff on the hill,
the circumstances under which it was deposited, and the payment by Hay,
would have been a good answer to the action ; it would be singular, there-
fore, if he could put the bill in circulation, and make the plaintiff pay the
amount for his benefit, indirectly, without rendering himself liable to
repayment.
Gaselee, J. The plaintiff is entitled to the judgment of the court. I put
it on the ground that where the price of the goods for which the bill was
deposited as a security was tendered or paid, the defendant had no longer
any right to the bill, but was in the condition of a person who had simply
found it. The plaintiff, therefore, _was_compclled to pay by^th.e wrongful
act of the delendant, and as the defendant had the henetlt of the payment.
the money must be considered as paid to his use.-
BosANQUET, J. I am of opinion that the plaintiff is entitled to recover
for money paid to the use of the defendant. The defendant was in pos-
session of an acceptance of the plaintiff which he had no right to retain,
much less to make use of. No value had been received by the acceptor,
nor after the payment by Hay had any been given by the defendant.
Nevertheless he negotiates the bill, and the plaintiflt" is compelled to pay it.
Even if he had negotiated it with the consent of the plaintiff, it would
have been the ordinary case of an accommodation bill, in which the ac-
ceptor would have been entitled to recover the amount again ; and as the
case stands the money has clearly been paid to the use of the defendant.
Alderson, J. The money was clearly paid to the use of the defendant,
inasmuch as it released him from so much of his debt to Henderson. The
plaintiff, therefore, is entitled to recover.
Eule discharged.
SPENCER V. PARRY.
In the King's Bench, May 13, 1835.
[Reported in 3 Adolphus Sr Ellis, 331.]
Debt for money paid and laid, out, and on an account stated. Plea,
nil debet. At the trial before Patteson, J., at the sittings in Middlesex
after Easter term, 1834, the facts appeared to be as follows. The plaintiff let
a house to the defendant under a written agreement by which the defendant
undertook to pay 42Z. a year rent, " free and clear from all land-tax and
parochial taxes." The defendant held the premises twelve months, and then
left them, not paying the land-tax or poor-rates. Upon his refusal to dis-
charge these, the collector of land-tax recovered the arrears of that duty
from the succeeding tenant, and the collector of poor-rate distrained for the
442
SPENCER r. FAKRY.
[CIIAP. V.
^-^^
year's rates uivn tl\o plaintiff's roooivor of routs, jnirsuaut to a local act
for the jvirish iu which the premises won? situate, viz., 11 G. 4, c. x. sa.
i>2, iK> (local aud jvrson;vl. publieX for roirulatiug the affairs of the p;\rishe8
of St. Giles iu the Fields axul St. Goorgo. Rloouisburv. bv which the huul-
lorvls o( oortaiu houses are subjected to the p^x^r-rate ; but it is euacted that
the jxTsou authorized to receive or collect, or the jxtsou receiving or col-
lecting the routs, shall l>o conijx'Uable to jviy the n^tes, unless the real land-
lorvl shall vUvlaro himself and jvay. or shall be distinctly or certainly known
to Iv such by the vestrymen, etc.* The rates were jv\id by the receiver on
the plaintiff's account, and the plaintiff reimbui-soii the new tenant for the
laud-tax levioil ujhmi him. This action was brought to recover the amount
so jviid ; and it was provovl that the defendant, after the commencement of
the action, had promisevl to give the plaintiff a coi/Hont to settle it, but
had not done so. For the defendant it was objected that, if he was liable
to the present claim, he was so by virtue of the special agreement, juid
that the declaration should have been framed upon that. For the plaintiff
it was urgoil that, the cvnitnvct having Kvn detonuinevl. a count for money
jviid was sustainable, and further, that the prv^mise to give a aynoriV was
pnx^f of an account stateil. The learned judge was of opinion that there was
no prvx^f of an account stated, and that the evidence did not support the
count for money jv\id to the defendant's use, inasmuch as the defendant waa
never liable For tlie tax or rate to any person but the plaintiff. He thert;fore
dir. " '' "^Tisuit, giving leave to move_to enter a vervlict,
moved accordingly in Trinity teiui, lSo4, and cited (as to the
count tor money jviid) Exall r. Partridge,* IKiwson r Luiton,' and Bn>wn r.
Ho^igs^ni.* He also relied ujx^u the otter of a co^Horit as evidence of an
accoimt stated. [1\vunton- J. The offer of a rtVHonV is matter subsequent
to the suing out of the writ.] It shows a pre-existing demand. [Lord
Pexmax, C. J. It does not follow that there had Kvn an account stated.
LiTTLKDALK, J. To Support that allt^tion. there should have Ixvn some-
thing of a settlement Ivfore the action w;vs brought,] On the question as
to the count for money paid, the court gnuited a rule nisi.
AlejnsnJtrr now sliowed cause.
Sir W. W. FiUlt^tt t\>Htrxi. Cur. adr. mft.
Lorvi Denman. C J„ now delivered the judgment of the court.
The plaintiff in this case had demised a house to the defond.ant, at a cer-
tain rent, clear of land-tax and of .all parvvhial taxes^ by a written agreement
The defendant quitte\l the premises .at the end of his ye:ir. h.aving j«id his
rent, but leaving the laud-tax and rates univsid. The plaint itt' relet the
house ; the new tenant w.as obligoil to j\ay the land-tax ; and the plaintiff's
agent, tinder a loc:»l act of jv»rliament, W5\s distrainovi ujxni for the rates, and
paid them ; Ix^h these sums werv repaid to the jvirties by the plaintiff,
* S«if the oUusrs citevl in Rex r. Dwr, 2 A. & E. 607. 60Sc
« S T. K. SOS. » 5 R i AU. 5:1. « 4 Taunt. 1S?».
HKCT. II. I UIMITAIN /'. I,I,()VI>. A'\{\
'riiiH (U'lioii wivH hroii^Iii to HMMivcr l.lio imioiiiiL of llin Iniid lux itinl imIch,
m luoiK^y paid t<> Mio (IcrcndMiil 'h iiho. It. wiiH olijoctud, lit I lit) trini, tlint.
tlio form ol'iK^lioii WIIH mi.scoiK rived, luid lliiil, the duruiidiuit, llinii|j;li liuliln
on his n^^nuiiiiitiit, t.o pay tlio vvliolo aniomit. nl' llm iciit, incliidiiij^ tlio
ratoH, could not, l)o cliar^od wit.li tliiH inonoy aw paid In Ihk iinr. My I'.rollioi" ,
Pattiohon, liniii^^ of tliJH opinion, diroctod a noiiHiiit., wliicli we t.liink r\0\l.
Tlio oidy doulit. wo li^lt in llio roinHo of tlio ar^iinionl ainHP IVoni tlio
caHOH of Hidwn ?'. llodj^Hon', and Diivvhom /». Linton,''' which Hoomcd miuly l.o /^.
roHoinlilo tho iiroKcnl. In l-lio loniK^r cmho the plainlill', a. oarrior, hnviiip; hy
MiiKtaKo dolivon^d A.'h ^ooiIm t.o I'., who niado Ihoiii Imh own, paid A. I.ho
priiu', and waH al'LorwardH allowed to rocovrr it. IVoni I'., ati inoncy paid to
liiH iiHo. Ihit. thiH WIIH in fact, nioiioy paid to liin iiho, lor il, wan in diKchar^o / -y ^_j /,
of his dehl. to A. ; and it, may lio fairly Hiiid to lia.vo hniwi paid at, Imh itiHlaiir-.o, /
hocauHo ho know t.hnl. I.Ih^ plninl iH'w iiiiHla.ko in dclivcriiif; llio i^oodH to him, ''^*''>« '^ /*-»^ r
miido tho plaint.iir liahlo t.o pay tho pri(;o to tho tino owiici'. "ih no ro-//^l ^.♦/^j^/*-./'/*
foivini,' tho f:;oo(lH may l»o coiiHidorod aH oipiivalont to Hiiyiiif,', " If yon pay/ ^
him (iiH yon may l)o oompclird to do) for tho {okkIh, I will itiinImiiki^ y""-" ' ' "^ * ' -^^^^
In tho ciiHo Im^Ioco iih^ tho <l(MriidauL wuH not liuhlu lo pay Lhu muuoy tu , . /.^Ji /^n^k"
any one hnt tho plaint ill", and that waH liy virtiio of tho ujiiroumont. / ^
in DawHoiP/A ITinton,''' goodw of tho pliiiiitill', an oiil|';oiii('; Iciiinil, loft hy // '''*M ,
hinj on Iuh farm, woro diHtrainod for a, la.x mado payahlo hy tho tonimt, y;, ''-,'! ,tz%f/ /*,
but wliicdi tho local act |^'avo him power to dodnct from hiw ront. Tho ^
pluintiif paid t.hi! tax to rodoom liiH goods, and tho court thouf^ht that
nioni^y jxiid t.o tho landlord'H iih(>, hocauHO tho landlord wan ultimately
liul)l(i. 'I'ho dofonco wiiH, that tho money wiw paid to tho iiho of tho teniiut t ■■ /*<>^oJi
for tho time lamifj;, who wiih primaiil}' liahlo. I'.iil liiiro the; plaiutiU'H pay-
ment roliovod tho dofondant from no liability hut what aroHO from tlio con
tract botwoon tiKsm, Tho tax romainod duo by his dofault, which would
givo a mncVdy on tlic a^'roorrKiiit ; bid, Tt waH^palcncroiio who Tiad no clniiu
upon Jiiin, and thcrcforo not to Iuh iiho. ~~
liuk duckarycd.
If..
<«!*-» -
^ — ^^c — ^^ u^..//^ c^ /; ■-.// -^ ' ,. <f ^-- /> » * ^-^<^ r^/- A , /Z /.^ -w. .
..-..;v-.v^^ •^"^/^'-/^^.-/.'/TBKITTAIN V. LLOYD. - ./i.^ ^V'//i/.--^-^..w
^^ '^/..^^ J ... y.,L,. J y./ /,,,./.: /••'• -.- ' •^- ^••^/y^^'^
/*...V/'*— ,^*»^*^,^ In tiir ExonicQUKH, Novkmiuou 21, 1845. y^,^. ^^^^^ **^ f .
«i*»«2i;»'TliiH WIIH an action of aHHiimpHit for money paifl by the plaiutiH', an
auctione(!r, for tlie w.^ dC llie defeudaiit, and on no a.ccoimt Htal(!<l,
-^Xy/ Tho ihdendatit plea,ded vmi umiimpi^il, on which inHiie waw joined ; and
=*^ tho cauHO wan triisd, before Tinoai,, (!. .1., at tlu; herbyshiro Hpriiig aHHi/.fsH,
^ 1844, when it waH a<,'reed that a, venlict ;,li(.nld he found S^a- the plaintilf
444 BEITTAIN V. LLOYD. [CHAP. V.
for 107/. 35. 9t/. damages, the sum claimed by the plaintiff, and 40s. costs,
siiliject to the opinion of this court on a special case ; the court to have
power to draw all inferences from the facts which a jury could or might
draw.
The defendant, being tlic owner of a frcLhold estate, consisting of a farm-
house, out-buildings, and lands, situate at W'oolow, near Buxton, in Derby-
shii'c, employed the plaintiff, who long before and at the time of the auction
hereinafter mentioned, and ever since, has been an auctioneer duly licensed,
to sell the said estate by an auction, to be holden at the Bull's Head Inn,
at Fairfield, near Buxton aforesaid, on the 25th of January, 1843. Pre-
vious to the commencement, and on the day of the auction, the defendant
delivered to the plaintiff the following authority to bid for her, signed by
herself and John Poundall : " To Mr. John Brittain, Auctioneer, Green,
Fairfield. Take notice, that ^Ir. John Poundall is appointed by Mrs.
Charlotte Lloyd, the real owner of the estate intended to be by you put ^^
up to sale by way of auction, at the Bull's Head Inn, Fairfield, on the^j^ ,
25th day of January instant ; the said Mr. Poundall being actually em- V /
ployed by the vendor of such estate to bid at the said sale for the use and
behoof of the said Charlotte Lloyd. And take notice, also, that the said
Mr. John Poundall hath agreed and doth intend accordingly to bid at the
said sale for the use and behoof of the said Charlotte Lloyd. As witness
the hands of the said Charlotte Lloyd and John Poundall, the 25th day
of January, 18-15. Charlotte Lloyd, John Poundall. Witness, Samuel
Wood." Which notice, duly signed by the defendant and the said John
i Poundall, being the person intended to make the bidding, was duly given
to the plaintiff before the commencement of the sale, and before the bidding
' by the said John Poundall hereinafter mentioned.
The estate was put up for sale by auction by the plaintiff on the said
25th of January, 18-43, and several persons attended and bid, and Poundall
attended in the sale-i'oom during the auction, and bid as hereinafter men-
tioned. The estate was put up for sale by the plaintiff, subject to the
following (amongst other) conditions of sale, which were prepared by the
plaintiff in the course of his employment as such auctioneer, and read by
the plaintiff at the commencement of the auction, viz. : " That the highest '
^bidder should be the purchaser. That no bidding sliould be retracted. /♦
v^ That the vendor or her agent should have the riglit of bidding once for the
property. That a deposit should be paid on the fall of the hammer, as also ^***
the whole of the auctif)n-dut3% ^° ^^ auctioneer by the purchaser. That
the residue of tlie piircliase-money should be paid at a future day, when the
estate should be conveyed. All fixtures, articles, and things, timber and
timber-like trees growing on the premises, down to and incbiding those of
the value of Is. each, were not to be included in the purchase-money of the
premises, but to be paid for in addition to such purchase-money, at a fair
vahiation, at the time of completing the purchase."
SECT. II.] BEITTAIN V. LLOYD. 445
The biddings then commenced, the defendant being in a room in the inn
adjoining to that in which the auction was held, and having a servant in
attendance in the room, to give her information respecting the biddings, etc.
Among the bidders were the names of two persons of tlie name of Barker
and Shaw, the latter of whom ultimately became the purchaser of the
estate, as hereinafter mentioned. After several biddings, including several
by Sliaw, Barker bid £3150, and Shaw shortly afterwards bid £.3300 : this
was communicated to the defendant by her aforesaid servant, and she
immediately sent him to desire Mr. Barker to come to her in the private
room, and there was a suspension of the auction for a few minutes ; Mr.
Barker went to the defendant, who inquired of him whether he was bidding
for any one in the room, and offered to let him bid a time or two, if he
liked ; and stated that he might go up to £3800, and he should not be
charged with the auction duty ; and that if he bid she would not take any
advantage of it. He objected, that it was more than the estate was worth ;
she then requested him to bid for her, to which he acceded, and returned
to the auction-room, and the sale was resumed by Barker bidding £3350
for the defendant. Shaw then bid £3400, which was communicated by her
said servant to the defendant, and who was immediately sent to fetch Shaw
to the defendant out of the auction-room. Shaw was taken to the room
where defendant was, when she asked him if he would give her the auction
duty over his last bidding ] Shaw replied, he did not know^ what the
auction duty was, but he would wait upon her the following day. It was
agreed upon between them that Shaw would wait on her at her residence,
at Woolow, the following day, and the hour of two o'clock in the afternoon
was fixed. She then told Poundall, in Shaw's presence, to go and bid the
reserved bidding, which he did, and bought in the estate at £3800, and the
plaintiff knocked down the estate to Poundall, observing, that all the par-
ties attending the sale were then at liberty, according to the usual practice,
to bid by pi'ivate contract ; but Shaw would, according to the usage, have
the first option. There had been no bidding after Shaw's, of £3400, before
Poundall bid the reserved bidding.
The next morning, Shaw met Poundall (who acted for the defendant) at
her residence at Woolow, and there saw the defendant. Poundall and
Shaw looked over the estate, and Poundall named £3550 or £3560 for the
estate, including timber, fixtures, etc., which were estimated in a lump at
the sum of £45 : he had not received any previous instructions so to do.
Shaw then offered £3500 for the estate, and £40 for the fixtures, etc., and
said, if he could not have it at that price, he would not have it at all.
Poundall then consulted the defendant, and they agreed to split the differ-
ence, and that the purchase-money should be £3545. The bargain was
made, according to the testimony of Shaw, without any reference to the
sale by auction at all.
The defendant then sent for the plaintiff to come to the defendant's house.
446 BKITTAIN V. LLOYD. [CHAP. V.
on the 27th of January, 1843, being two days after the sale, to prepare the
agreement between the defendant and Shaw ; and the plaintiff and Shaw,
on the 27th of January, 1843, came to the defendant's house, when an
agreement, to which the plaintiff was an attesting witness, of which the
following is a copy, was copied by the defendant's daughter, at the request
of plaintiff, from a book of the plaintiffs.
Memorandum. — That Mr. William Shaw is declared the highest bidder
and purchaser of the""\Voolow estate, situate ui the parish of Hope an3.
township of Fairfield, in the county of Derby, at the sum of £3545, in-
cluding the timber plantations and fixtures on the premises ; at which sum
the said Mr. "William Shaw doth agree to become the purchaser thereof
accordingly, and doth also agree, on his part, to perform the before-written
v^ I conditions of sale; and, in consideration thereof, Charlotte Lloyd, the
I [Vendor, doth agree to sell and convey the said estate and premises unto
the said Mr. "William Shaw, his heirs and assigns, or as he or they shall
I direct, according to the said before-written conditions of sale. And it is
also agreed, that the sura of £350 shall be paid as a deposit, which sum is
to be considered as part of the purchase-money. Dated this 27th day of
January, 1843.
[Signed] Charlotte Lloyd,
William Shaw.
John Poundall, ^
EicHARD Shaw, V Witnesses.
John Brittain, )
There are no other conditions than those set out in the early part of this
case.
In March, 1843, the plaintiff duly made the return of the sale to the
•^ ,, proper officers of Excise, and that the estate was bought in by defendant
for £3800, and duly verified and produced, and left, as required by the act
of parliament, the notice of the said appointment of Poundall, etc. ; and
also verified the fairness and reality of the transactions to the best of his
knowledge and belief, and did all other acts required by law by him to be
done, to get the duty on the said auction and sale allowed and remitted to
the defendant ; but the Commissioners of Excise refused to allow or remit
the same.
On the 22d of March, 1843, the plaintiff had an interview with the
defendant, in order to settle his account against the defendant for the sale
of the estate hereinbefore mentioned, and also for another sale the plaintiff
had had for the defendant. Some unpleasantness took place between the
plaintififand defendant, in consequence of the defendant complaining of the
exorbitancy of the plaintiff's bill, alleging that the plaintiff had charged her
too much. The defendant said to the plaintiff, " You had thouglit to have
thrown the auction duty away ; but I would not let you." The plaintiff
told the defendant that he had not yet settled the sale account with the
H
SECT. II.] BRITTAIN V. LLOYD. 447
Excise, and that when he did settle it, if the auction duty was deumuded
of him, he should demand it of defendant ; to which the defendant replied,
" Then you must get it, and take it."
Ultimately, in September, 1844, the Commissioners of Excise, or the
persons duly authorized in that behalf, required the plaintiff to pay the
said auction duty, amounting to \Qll. 3s. 9t/., in respect of the said sale of
the said estate above-mentioned, being the amount of duty on £3.500, and
formally demanded the same of the plaintiff, which requisition and demand
was duly communicated to the defendant by the plaintiff, and she was
required to pay the amount, or to indemnify the plaintiff against proceed- I
ings for the recovery of the duty, which was refused by the defendant. ' v /
Correspondence then took place between the plaintiff and defendant, and
the defendant and the Commissioners of Excise ; and ultimately the plain-
tiff was compelled by the Commissioners of Excise to pay the above duty
of 107/. 3s. 9o?. to the Commissioners of Excise, of which payment due
notice was given to the defendant, and she was required to pay the same
to the plaintiff, but which she refused ; and this action was brought to
recover that amount.
The question for the opinion of the court is, whether the plaintiff ia
entitled to recover the amount of the said auctionduty.
The case was argued on the 17th of November, by
Whitehurst for the plaintiff.
Huinfrey, contra.
Cur. adv. vult.
The judgment of the court was now delivered by
Pollock, C. B. This case was argued on Monday last. It was an action
by an auctioneer against the defendant, his employer, for the duty which
he had been obliged to pay to the crown on a sale of her estate ; and the
form of action was for money paid. The court intimated its opinion, that
it was clear that the defendant was liable, but took time to consider
whether this was the proper form of action.
It was argued by Mr. Humfrey, that this form of action could not bo
maintained, unless the effect of the payment was to relieve the defendant
from some liability for the amount to the party to whom payment was
made, and that otherwise it could not be paid for the defendant's use ; and
he relied on the case of Spencer v. Parry ^ as an authority for that propo-
sition ; and contended that, as the defendant in this case was not made
liable to the crown by the act of parliament, the money was paid to one
who had no claim upon her, and therefore not to her use.
This proposition, however, is not warranted by the decision of Spencer v.
Parry, though some expressions in the report of the judgment give a coun-
tenance to the argument of the learned counsel ; nor can the proposition
be maintained ; for it is clear that, if one requests another to pay money
J 3 A. & E. 331.
448 ASPEEY V. LEVY. [CIIAP. V.
for him to a stranger, with an express or implied undertakiug to repay it,
the aaiouut, when paid, is a debt due to the party payiug from him at
whose request it is paid, aud may be recovered on a count for money paid ;
and it is wholly immaterial whether the money is paid in discharge of a
debt due to the stranger, or as a loan or gift to him ; on which two latter
suppositions the defendant is relieved from no liability by the payment.
The request to pay, aud the payment according to it, constitute the^ ^'I^LL
"aniT whether the request]l^e_directj_as where_fh^^
by the defendant to pay, or indirectjhere he is placed by him under ji
liability to pay, and does pay, makes no difference. If one ask another,
instead of paying money for him, to lend him his acceptance for his accom-
modation, and the acceptor is obliged to pay it, the amount is money paid
for the borrower, although the borrower be no party to the bill, nor in any
way liable to the person who ultimately receives the amount. The bor-
rower, by requesting the acceptor to assume that character which ultimately
obliges him to pay, impliedly requests him to pay, and is as much liable to
repay as he would be on a direct request to pay money for him with a
promise to repay it. In every case, therefore, in which there has been
a ptiyii^eiit of money by a~praintiff to a thTfd~^party, arTBe^request of the
defendant, express or implied, on a promise, express or impliedj_tg. re^ay
the amount, this form of action is maintainable.
In the case of Spencer v. Parry, there was no such implied request. In
the case of Grissell v. Robinson, referred to in the argument, ft was con-
sidered, and we think rightly, that there was ; and the Court of Queen's
Bench thought the decision of Brown v. Hodgson was to be supported on
the same ground. We haye_now to apply this doctrine to the facts of the
present case ; and we all think that the plaintiff, having been placed by
the defendant in the situation of being obliged to pay the auction duty to
tEe'ci-owuj under circumstances in which the defendant was bound to
repayTmn, may be~^onsKlered as having paid^^ioney to the crown at her
request, and consequently may maintain thisaction^__I
Judgment for the plaintiff.
ASPREY V. LEVY.
In tub Exchequer, May 4, 1847.
[Reported in 16 Meeson §" Welshy, 851.]
Assumpsit for money paid, and on an account stated. Plea, non assump-
sit. The^particular of the plaintiffs demand claimed X25 for money paid
by the plaintiff for the use of the^ defendaat^^nd at his requfisl^p one
JoEn Williams, in respect of a certain bill of exchange, dated January 28,
184G. At the trial, at the Middlesex sittings after last Michaelmas term,
SECT. II.] ASPKEY V. LEVY. 449
before the Lord Ciiikk Bauon, the following appeared to be tlio facts.
The defendant^ a shcrift''s officer, was iu posscssiou of the goods of one
Faiicher under aji.fa. at the suit of Hart. A prior execution had issued
by Goldshedc against the same goods ; biit a subsequent distress for rent
having exhausted them all, Goldshedc withdrew from po.sscssion, without
claiming possession-money. The attorney for Hart gave an unconditional
oi-der to the defendant to withdraw also, but the defendant refused, except
uu"the terms of receiving £5 for possession-money from i^aucher. FaucFer
told him he hoped the plaintiff would accept a bill for his accommodation.
The defendant said, if Faucher could obtain the plaintiff's security for seven
guineas, which he then demanded for possession-money, he, the defendant, /tA/^y<.-~~'—'^^^
would leave possession. The plaintiff afterwards, on Faucher's request, y
accepted the bill, do.ted January 28, 184G, drawn by Faucher, for £25, at /
two months' date, on the understanding that Faucher would get it dis- /^/^y.^^^^ /^^/z:^
counted by the plaintiff, or elsewhere, and, after retaining the seven guin- y . / y
eas, give the plaintiff the difference. Faucher handed this bill to the "^ / "^
defendant as a security for the £5 possession-money as first demanded, and^^*^*^ ^^^,.is^:::z~.^
the defendant withdrew his man from possession, but would not discount ;::^:^77- S^ ^^^^^.^^^
or giv"e~up the bill till be received seven guineas. The bill was noFdis-
counted, but was indorsed by the defendant to Williams, and handed to"'^'"*"~~ ^"^ ^f^^
teague, the""attorney to Williams. At its maturity, on the 31st of March, />y/,=^^^^^^,<^.,<^-
it"^r~presented for payment by Teague on behalf of Williams, and was ""^^ — ^
dishonored. Williams then sued the present j)laintifF on the bill, and
declared on the 2d of May. On the 7th of May, the defendant, tlu-ough
Teague, offered to pay £13 to the plaintiff's attorney, and to deliver up the
bill to him on receiving £12 and interest. The plaintiff did not answer
this, but on the IGth of May settled the action with Williams, by paying
hira £25, the amount of the bill, and 10/. 4s. costs. On that day the de-
fendant was served with the following notices. The first was as follows : —
/
To Mr. Lawrence Levy.
I hereby give you notice, that the bill of exchange drawn by myself upon,
and accepted by, Mr. Frederick Asprey (the plaintiff) for the sum of £25,
dated the 28th day of January, 1846, payable two months after date, was
accepted without any consideration, and was handed to me by the said F.
Asprey for the purpose of being discounted, and for which purpose I in-
dorsed and handed you the same. Now I hereby desire and authorize you
to deliver the said bill to Mr, F. Asprey, as I have no claim on him in,
respect thereof. May 8th, 1846.
Yours, etc.
F. Faucher.
• The second was of the same date, and iu these terms : —
I hereby give you notice, that I am sued by Mr. Williams for the amount 7 — . y ^
of the bill of exchange for £25, drawn by Mr. Faucher on, and accepted by, ^^^^^^-^^Z^-^*— ^'-^
n. — 2D j *^ pwwJf^w lice.
VOL.
450
ASPREY r. LEVY.
[chap. V.
/,
'4^
^hf<
^^'i*^i
myself, which bill is more particularly mentioned in the anuexed notice ;
and Mr. Williams having given you notice for the same, which you have
fraudulently retained, I hereby give you notice, that if I am compelled to
pay the amount of such bill and costs to Mr. Williams, I shall hold you
responsible for the same. Yours, etc.
Frederick Asprey.
To ]Mr. Lawrence Levy.
The following letter was then sent by the defendant to Faucher, the
drawer of the bill : —
17 Norfolk-street, Strand, May 16th, 1846.
Sir, — I have this day received your notice, dated 8th of May, relative
to the bill for £25, accepted by Mr. Asprey ; and I beg to inform you that
I had paid it to Mr. Teague by a cheque on the London and Westminster
Bank for the sum of £13, being the balance of the bill for £25, after de-
ducting £12, the amount payable by you to myself, and which cheque has
been this day returned to me by Mr. Teague ; and I, therefore, hold the
same on your account, and am ready to deliver you the £13 at any time
on request.
(Signed) L. Levy.
This letter was directed to Mr. F. Faucher, at Mr. Asprey's, 6 Furnival'a-
inn, Holborn, and was left about 7 o'clock at Mr. Asprey's on the evening
of the 16th of May, 1846, though the messenger was informed that no
papers were received there for Faucher. Faucher never received it, and
no notice was taken of it.
On the same 16th of May, a letter was written by the plaintiff's attorney
to the defendant, applying to him for payment of the amount of a bill for
£25 and expenses, which he had been compelled to pay to Mr. Williams in
consequence of the defendant's having improperly negotiated the same, and
retained the proceeds to his own use, and threatening proceedings if such
payment was not made.
Faucher proved that he had received no value for the bill, and that there
was no other consideration for his parting with it to the defendant but the
£5 between him and defendant.
For the defendant, it was submitted that the action would not lie,
f because the plaintiff had paid the amount of the bill withou_t _co?'^p"l>^'^'^",
and the defendant had a right to retain it as against Faucher for 7LJl8.^
at least for £5. The defendant had indorsed it to Williams, who sued on
it before any notice had been given by the plaintiff respecting the bill
The Lord Chief TJaron observed that there \yas no dispute as to £5. A
verdict was found for the ])l!iintiff for £20, wnth leave to the defendant to
move to enter a nonsuit, the court to be at liberty, on disposing of that
motion, to enter a verdict fur £25, if they should think fit. A rule having
been obtained according to the leave reserved,
SECT. II.]
ASPREY V. LEVY.
451
Watson and Tajyrell showed cause.
Humfrey and Archbokl, in support of the rule.
Pollock, C. B. This rule must be absolute. I should be glad to have
been able to have sustained the verdict in a case where the defendant, hav-
ing obtained the security of the plaintiff's bill for £25 for a claim against
a third person of, at utmost, seven guineas, indorsed it over, and kept the
whole proceeds. Bleaden v. Charles^ was cited in support of the plaintiff's
claim, and, in one aspect, bears much on it. indeed, till the original cir-
cumstances of this case are carefully considered, it seems exactly in point.
But Mr. Ilumfrey has ably pointed out the material difference in point of
fact between the two cases, jiere it was intended by the plaintiff, that the
defendant should have the bill, and discount it. He had it, and either dis-
couutea or paid it away. To whom is he liable for the proceeds 1 The bill
did not become due till the 31st of March. The writ was not in evidence,
but the declaration was of the 2d of May. No claim of the bill was made
by the plaintiff till after it was paid away "by the defendant, and an action
bad been brought against him upon it by the holder, Williams. Then the IW w
plaintiff's present remedy is not against this defendant, but Faucher. It
is unnecessary to consider what might have been the result had the plaintiff
followed the bill while in the defendant's hands, before it was negotiated.
Parke, B. I am of the same opinion. If a man gives his acceptance
to another for the accommodation of that other, and the bill is disposed of
according to the original intention of the parties, and the acceptor after^
wards pays it accordingly, he cannot call on the indorsers, but his remedy
is on the original contract against the drawer. Here the plaintiff's remedy
to indemnify the plaintiff
-^'^•^T-.-^rcz^
is against Faucher, for the breach ot his contrac
agamst the consequences of accepting the bill for his accommodation.
^^
My
only doubt arises on Bleaden v. Charles ; but that case is distinguishable
on the ground there put by Gaselee, J., and Bosanquet, J., and now by
the Lord Chief Baron, which shows that the money has been paid by the
plaintiff to the use of Faucher, and not to that of the defendant. An
answer has been given by my Brother Platt to the observation raised on
Pownal V. Ferrand. As to Exall v. Partridge, the stranger's goods, when
put by him on the land, became security to the landlord for the original
tenant, who ought to have paid the rent. The plaintiff's remedy is against
Faucher, to whom he lent his acceptance on his implied contract of
indemnity.
Rolfe, B., concurred.
Platt, B. According to the argument for the plaintiff, it might be said
that, had the bill been indorsed by Williams, and paid by him, he might
have also alleged that he had paid it to the use of the defendant.
Rate absolute.
1 7 Bincr. 246.
452 THE GREAT NOKTHEKN RAILWAY CO. V. SWAFFIELD. [CHAP. V.
THE GREAT NORTHERN RAILWAY COMPANY v. SWAFFIELD.
In the Court of Exchequer, April 22, 1874.
[Reported in Law Reports, 9 Exchequer, 132.]
Appeal from the Bedfordshire county court.
This was an action brought to recover the sum of 17/. paid by the plain-
tiffs to a hvery stable keeper for the keep of the defendant's horse, under
the following circumstances.
On the 5th of July, 1872, the defendant, who lived at Wootton, fifteen
miles from Sandy Station, sent a horse by the plaintiff's line from Kiug's
Cross to Sandy, consigned to the defendant himself at Sandy, theJUreJjeing
prepaid. When the horse arrived at Sandy at 10 p.m., there was no one at
the station to receive it"oirbeEaIf of the defendant, and by the direction of
the station-master, who did not know the defendant's residence, the horse was
taken to a livery stable nearthe station, kept by one Bennett, for safe custody.
Soon after the horse had^ been placed there the defendant's servant arrived
VI
at the station, and, producing the horse ticket which the defendant had re-
ceived from the plaintiffs, asked for delivery of the horse. The station-master
told the servant that the horse was at the livery stable, and that he could
have it on payment of the liv^ry-iihaxges, which Bennett's ostler, who hap-
pened to be present, stated to be GtZ. The servant refused to pay this sum,
and went across to the stable and demanded the horse of Bennett, who said
he might have it on the payment of Is. 6c/. The servant refused with some
insolence to pay any money whatever, on which Bennett said that he should
not have the horse except on the payment of 2s. 6c?., which is the usual and
proper charge for one night's keep. The servant thereupon went away
without the horse.
On the next morning the defendant came himself, and complained to the
station-master (who was not previously aware of what had passed after the
servant left the station) of the horse not having been delivered to his ser-
vant the previous night. The station-master offered that if the defendant
would pay Bennett, and leave the receipt with him, he would represent the
case to the superintendent with a view of getting the money from the plain-
tiffs ; but the defendant refused to recognize Bennett in any way. There-
upon the station-master said that, rather than the defendant shouM_go
away without the horse, he would pay the charges out of his own pocket;
but the defendant declared he would have nothing to do with it, and went
away wi thout the horse .
I In reply to a letter written the same day by the defendant to the general
I manager of the plaintiffH, stating that he left tiie horse in tlie company's
hands, and claiming 21/. for the price of the horse, and 30s. for his and hia
SECT. II.] THE GREAT NORTHERN RAILWAY CO. V. SWAFFIELD. 453
man's expenses and loss of time, the station-master wrote to the defendant
ou the 8th of July, offering to deliver' the horse without payment of the
liver}' charges, but stating that the company would look to the defendant
for payment of the same. The defendant replied, refusing to come to
Sandy for the horse, but offering to receive it if delivered at his fixrm by
one o'cloclc the next day, free of expense, and with payment of 30s. for ex-
penses and loss of time ; otherwise he woiild not receive the horse at all.
The station-master, in reply,~stated that the horse would remain at the
stable at the defendant's risk and expense. ■
'I'he horse remamed at the stables till the 18th of November, when the
st-ation-master sent itlu charge of a porter to the residence of the defendant,
who then received and kept it^ no demand being then made for payment of
thejjyery charges. The plaintiffs paid the livery charges, amouDting~to~~ jj
17 L, for which they now sued the defendant. —jl^^ A-,^ .
The case was heard (without a jury) before the learned judge of the
county court, wdio gave judgment for the defendant ; the plaintiffs
appealed.
The question stated for the opinion of the court was, whether the plain- ^^ —J—
tiffs were entitled to recover the whole or any part of the livery charges ^"^^^^^ /^fj^*
from the defendant ; and if the court should be of opinion that they were ^^"^^"S^*^ 4r/ie^»<^'i^
'<S^
so entitled, judgment was to be entered for them for the amount of the^^'^-* •^Av»*-^ ^'
charges, or such part thereof as the court should think fit, with such co^WJTC^ ^1^..-,,,^ ,<^^**^^
as the court should direct.-' ' / '
J . P. Asjnnall for the plaintiffs.
Graham for the defendant.
Kelly, C. B. We are all clearly of opinion that this judgment must be
set aside, and judgment entered for the plaintiffs for 17^. It appears that
the defendant caused a horse to be sent by the plaintiff's railway to Sandy
station ; but the horse was not directed to be taken to any particular place. ^ ^
The owner ought to have had some one ready to receive the horse on his ^-^■^'3^^ "^^j^
arrival and take him away ; but no one was there. It does not appear that / y_ /_ / "/
there was at the station any stable or other accommodation for the horse ; / /^^"^^-t^s
and the question arises, what was it, under those circumstances, the plain- ' r
tiffs' duty, and consequently what was it competent for them to do ? I >-'y^
think we need do no more than ask ourselves, as a question of common /<:;^fc.,,t^ J:;^ • ^
sense and common understanding, had they any choice ] They must either [i "^
have allowed the horse to stand at the station, — a place where it would^w-^^ ^^y^ t)t^/-./r
have been extremely improper and dangerous to let it remain ; or they / . v / -
. , .... „ . , , . , , , . n . ,, T , . , . ^y\.c^i-i,^t^ ^/<?Vu y^
must have put it in safe custody, which was what in fact they did in placing ^^
^ Tlic defendant had previously broiiglit an action against the plaintiffs for the deten-
tion of the horse ; the plaintiffs paid money into court in respect of the cietention ot tlie"
litJrse heiore the aetunaant's relusal to receive him. The cause was tried befon; Uram-
WELL, 15., at the Bedford summer assizes, 1873, and a verdict was found for the then
defendants, the now plaintiffs.
454 THE GREAT NOKTHERN RAILWAY CO. V. SWAFFIELD. [CIIAP. V.
it in the care of the Uvery stable keeper. Preseutly the defendant's ser-
vant comes and demands the horse. He is referred to the livery stable
keeper, and it may be (I do not say it is so) that upon what passed on
that occasion the defendant might have maintained an action against the
plaintiffs for detaining the horse.^ But next day the defendant comes hira-
Belf ; the charges now amount to 2s. 6d. ; an altercation takes place about
this trumpery sum, and ultimately the station-master offers to pay the
charges himself if the defendant will take the horse away ; but the defend-
ant refuses, and leaves the horse at the stable. Then a correspondence
ensues between the parties, in which the defendant is told that he can have
the horse without payment if he sends for it, but he refuses, and says that
unless the horse is sent to him with 30s. for expenses and loss of time by
to-morrow morning, he will not accept it at all ; and he never sends for the
horse. Meanwhile the plaintiffs run up a bill of 17/. with the livery stable
keeper with whom they placed the horse, which they ultimately have to
pay ; and at last they send the horse to the defendant, who receives it ;
and they now sue him for the amount so paid.
I am clearly of opinion that the plaintiffs are entitled to recover. My
^^j^t^ r ,^ur» t^^^i Brother Pollock has referred to a class of cases which is identical with this
-^^Wi rC^ A^^^xi principle, where it lias been held that a shipowner who, through some
i _ accidental circumstance, finds it necessary for the safety of the cargo to
'^/^^ »-«r^ '^***~'incur expenditure, is justified in doing so, and can maintain a claim for re-
imbursement against the owner of the cargo. That is exactly the present
yjct^f'.^ — y '""'"''^ase. The plaintiffs were put into much the same position as the ship-
owner occupies under the circumstances I have described. They had no
'7i
choice, unless they would leave the horse at the station or in the high road,
to his own danger and the danger of other people, but to place him in the
care of a livery stable keeper, and as they are bound by their implied con-
tract with the livery stable keeper to satisfy his charges, a right arises in
them against the defendant to be reimbursed those charges which they
have incuiTed fur his benefit.
PiGOTT, B. I am of the same opinion. I do not think w^e have to deaL-
with any question of lien. We have only to see whether the plaintiffs ne-
cessarily incurred this expense in consequence of the defendant's conduct
in not receiving the liorse, and then whether, under these circumstances,
yw\ d the defendant is under an impHed obligation to reimburse them. I am
/ clearly of opinion that he is. The horse was necessarily put in the stable
vv\Aa h.! I L. fur a short time before the defendant's man arrived. I give no opinion on
A . ^HM^ . ^,Y^,^^ then passed, whether the man was right, or whether the plaintiffs
'^^'h ^ i/uvv, i ^'^'■^ Y'\g\\i ; I think it is not material. On the following day the defend-
(J [ I "^ant comes himself; and the basis of my judgment is, that at that time the
station master offered, rather than the defendant should go away without
the horse, to pay the charge out of his own pocket ; but the defendant de-
1 See note on previous page.
W-
SECT. II.] THE GREAT NORTHERN RAILWAY CO. V. SWAFFIELD. 455
clared he would have nothing to do with it, and went away. That I under-
stand to be the substance of what was proved ; and if that be so, it shows
to me that tlierc was a leaving of the horse by the defendant in tlie pos-
session of the carriers, and a refusal to take it. Then what were the car-
riers to dol 1'hey were bound, from ordinary feelings of humanity, to
keep the horse safely and feed him ; and that became necessary in con-
sequence of the defendant's own conduct in refusing to receive the animal
at tlie end of the journey according to his contract. Then the defendant
writes and claims the price of the horse ; and then again, in answer to the
plaintiff's offer to deliver the horse without payment of the charges, he
requires delivery at his farm and the payment of 305. ; in point of fact, he
again refuses the horse. Upon the whole, therefore, I come to the con-
clusion that, whoever was right "oiTThe nfght when the horse anrrvecl, the
defeuJaul waa wrun^—wlrenron the nexF'Hay^he refused to receive him ;
that the expense was rightly incurred by the plaintiffs ; and that there was,
under these circumstances, an implied contract by the defendant entitling
the plaintiffs to recover the amount from him.
Pollock, B. I am of the same opinion. If the case had rested on what
took place on the night when the horse arrived, 1 should have thought the
plaintiffs wrong, for this reason, that although a common carrier has by the
common law of the realm a lien for the carriage, he has no lien in his ca-
pacity as warehouseman ; and it was only for the warehousing or keeping
of this horse that the plaintiffs could have made any charge against the
defendant.
But the matter did not rest there ; for it is the reasonable inference from
what is stated in the case, that on the next day, when the defendant him-
self came, he could have had the horse without the payment of anything ;
but he declined to take it, and went away. Then comes the question, first.
What was the duty of the plaintiffs, as carriers, with regard to the horse 1
and secondly, If they incurred any charges in carrying out that duty, could
they recover them in any form of action against the owner of the horse 1
Now, in my opinion it was the duty of the plaintiffs, as carriers, although
the transit of the horse was at an end, to take such reasonable care of the
horse as a reasonable owner would take of his own goods ; and if they had
turned him out on the highway, or allowed him to go loose, they would
have been in default. Therefore thev did what it was their duty to do.
Then comes the question, Can they recover any expenses thus incurred
against the owner of the horse 1 As far as I am aware, there is no decided
case in English law in which an ordinary carrier of goods by land has been
held entitled to recover this sort of charge against the consignee or con-
signor of goods. But in my opinion he is so entitled. It has been long
debated whether a shipowner has such a right, and gradually, partly by
custom and partly by some opinions of authority in this country, the right
has come to be established. It was clearly held to exist in the case of
456 THE GREAT NORTHERN RAILWAY CO. V. SWAFFIELD. [CIIAP. V.
Notara v. Henderson,^ where all the authorities on the subject are reviewed
with ver}' gi-eat care ; and that case, with some others, was cited and acted
upon by the privy council in the recent case of Cargo ex Argos.^ The
privy coiuicil is not a court whose decisions are binding on us sitting here,
but it is a court to whose decisions I should certainly on all occasions give
great weight; and their judgment on this point is clearly in accordance
with reason and justice. It was there said ^ (after referring to the obser-
vations of Sir James Mansfield, C. J., in Christy z^. Row),* "The precise
point does not seem to have been subsequently decided, but several cases
have since arisen in which the nature and scope of the duty of the master,
as agent of the merchant, have been examined and defined." Then, after
citing the cases, the judgment proceeds: "It results from them, that not
merely is a power given, but a duty is cast on the master, in many cases of
accident and emergency, to act for the safety of the cargo in such manner
as may be best under the circumstances in which it may be placed ; and
that, as a correlative right, he is entitled to charge its owner with the ex-
penses properly incurred in so doing." That seems to me to be a sound
rule of law. That the duty is imposed upon the carrier, I do not think
any one has doubted ; but if there were that duty without the correlative
right, it would be a manifest injustice. Therefore, upon the whole of the
circumstances, I come to the conclusion that the claim of the company was
a proper one, and that the judgmeut of the learned judge of the county
court must be reversed.
Amphlett, B. I am of the same opinion. It appears to me that this
case, though trumpery in itself, involves important principles. I think it
is perfectly clear that the railway company, when the horse arrived at the
station, and no one was there to receive it, were not only entitled but were
bound to take reasonable care of it. As a matter of common humanity,
they could not have left the horse without food during the whole night,
and if they had turned it out on to the road they would not only have been
responsible to the owner, but if any accident had happened to the general
public, they would have incurred liability to them. Therefore, as it ap-
pears to me, there was nothing that they could reasonably do except that
which they did, namely, send it to the livery-stable keeper to be taken
care of.
Then comes the question discussed by my Brother Pollock, and on which
I should not dissent from him without great diffidence, whether a lien ex-
isted for these charges. As at present advised, I should not wish to be
considered as holding that in a case of this sort, the person who, in jmr-
suance of a legal obligation, took care of a horse and expended money upon
him, would not be entitled to a lien on the horse for the money so ex-
pended. But really the point does not arise : whatever might be the case
1 L. R. 7 Q. B. 22.5, at pp. 230-235. ^ h. R. 5 P. C. 134.
8 L. R. r, P. ('., .-it p. 101. '' 1 Taunt. 300.
SECT. II.] DECKER V. POPE. 457
with regard to it, that question appears to nie to be got rid of by what fol-
lowed; because, even if the company were wrong in claiming payment of
the G(/., or whatever the sum might be, on the night when the horse arrived,
the whole thing was set right by them on the next day, when the defend-
ant himself came to the station, and the station-master offered to pay the
charge in order that the defendant might have the horse. The defendant
refused that very reasonable off"er ; and what, then, was the company to do
with the horse? What else should they do but leave it with the livery-
stable keeper, where it was being taken care of? At last, after a bill of
17/. had been incurred, the horse was sent to the defendant, and the
question is, who is to pay that sum of 17/.?
Now, who was in the wrong? Even if the plaintiffs were in the wrong
originally, of which I am by no means sure, in not giving up the horse on
the night when it arrived, at any rate from the time when that was set
right it was the defendant who was in the wrong, and the company who
were in the right. It appears to me, therefore, quite clear that the com-
pany are entitled to recover the money which they have been obliged to
pay, and have paid, to the livery stable keeper, and that the judgment of
the learned judge of the county court must be reversed, and judgment
entered for the plaintiffs.
Judgment reversed.
DECKER V. POPE.
At the London Sittings, before Lord Mansfield, July 9, 1757.
[Reported in 1 Selwyn's Nisi Prius (I3th Ed.), 01.]
This was an action brought by an administrator de bonis non of a surety,
■who, at defendant's request, had joined with another friend of defendant's
in giving a bond for the payment of the price of some goods that were sold
to defendant, and the surety having been obliged to pay the money, the
administrator declared against the defendant for so much money paid to),
his use. Lord Mansfield directed the jury to find for the plaintiff"; ob-
serving, that where a debtor desires another person to be boxmd with him
or for him7and the surety is afterwards obliged to pay the debt, this is a
sufficient consideration to raise a promise in law, and to chil^'gp t.bf. pT-infM-^
pal ki an action for money paid to his use. He added, that he had conferred
with most of the judges upon it, and they agreed in that opinion.^
^ .Ifl ancient times no action could Tip- maintained at law, where the surety paid the
debt of his principal : and the first case of the kind in which the praintiff succeede(I~^
was betore Uoi!Li), ,1 ., ftt Dorchester, winch was decided on equitable grounds. Buller, -J.,
in Toussaint v. Martinnant, 2 T. R. 100, 105.
Gould, J., was a justice of the Common Pleas, 1763-1794. — Ed.
;o^
458 DEEKING V. THE EARL OF WINCIIELSEA. [CHAP. V.
SIR EDWARD DEERING v. THE EARL OF WINCHELSEA,
SIR JOHN ROUS, AND THE ATTORNEY-GENERAL.
In the Exchequer, February 8, 1787.
[Reported in 2 Bosanquet .J- Puller, 270.]
Lord Chief Baron Eyre (present Hotham and Perrin, Barons) delivered
the opinion of the court.
Thomas Peering, younger brother of the plaintiff, was appointed in 1778
receiver of fines and forfeitures of the customs of the outports, and entered
into three bonds, each in the penalty of 4000^. with condition for duly
accounting ; in one of which the plaintiff joined as surety, in another Lord
Winchelsea, and Sir John Rous in the third. Thomas Peering became in-
solvcnt and left the country : the balance due to the crown was GG02/. 10s.
8t7., part of which was levied" on his effects, and when the bill was filed
there was due 3883/. lis. 8^d., which was rather less than the penalty of
etgctroTTHcljonds. The bond in which the plaintiff^had joined was4)iit_in
suit against him, and judgment obtained. He filed his bill demanding con-
tribution against Lord Winchelsea and Sir John Rous, and praying an
account of what was due to the crown and money levied on the plaintiff
(supposing execution to follow the judgment), and that Lord Winchelsea
amflsir John Rous might contribute to discharge the debt of Thomas
Deering as two of the sureties for that debt. The appointment, the three
bonds, and the judgment against the plaintiff, were in proof, and the balances
were admitted by all parties.
The Lord Chief Baron after stating the case observed, that contribution
^ ^ was resisted on two grounds ; first, that there was no foundation for tlic
^\^A^^/i/h/ demand in the nature of the contract between the parties, the counsel for
' -I / the defendants considering the title to contribution as arising from contract
^u^^^^^^yyln (expressed or implied; secondly, that the conduct of Sir Edward Peering
hf^ J^i ^l/u.*^. had deprived him of the benefit of any equity which he might have other-
' wise had against the defendants.
Tfie LoKU Chief Baron considered the second objection first. The mis-
J\1<tC/J[ conduct imputed to Sir E. Peering was, that he had encouraged his brother
m irregularities, and particularly in gaming, which had ruined him, and
had done this knowing his fortune to be such that he could not support
himself in his extravagances and faithfully account to the crown ; that Sir
E. Peering was privy to his brother's breaking through the orders given
him to deposit the money he received in a chest under tlie key of the
comptroller. His Lordship observed that this might be true, and certainly
put Sir E. Peering in a point of view which made his demand indecorous ;
SECT. II.] DEEKING V. THE EARL OF WINCHELSEA. 459
but it had not been made out to the satisfaction of the court that this con-
stituted a defence. Mr. Maddocks had stated that the author of the loss
should not have contribution ; but stated neither reason nor authority to
support the principle he urged. If these were circumstances which could
work a disability in the plaintiff to support his demand, it must be on the
maxim, " that a man must come into a court of equity with clean hands ; "
but general depravity is not sufficient. It must be pointed to the act upon
which the loss arises, and must be in a legal sense the cause of the loss.
In a moral sense Sir E. Bearing might be the author of the loss ; but in a
legal sense Thomas Deering was the^authoFj and if the evil example of SiF
E. Deering led him to it, yet this was not what a court of justice could
take cognizance of. Thei'e might indeed be a case in which a person
might be in a legal sense the author of the loss, and therefore not entitled
to contribution; as if a person on board a ship was to bore a hole in the
ship, and in consequence of the distress occasioned by this act it became
necessary to throw overboard his goods to save the ship. This head of
defence therefore fails. The real point is. Whether there shall be con-
tribution by sureties in distinct obligations?
It is admitted, that if they had all joined in one bond for 12,000^. there
must have been contribution. But this is said to be on^tlie f6undation~of"
contract implied from their being parties in the same engagement, and
here the parties might be strangers to each other. And it was stated that
no 'man could be called upon to contribute who is not a surety on the
face of the bond to which he is called to contribute. The point remains
to be proved that contribution is foiuided on contract. If a view is taken
of the cases, it will appear that the bottom of contribution is a fixed prin-
ciple of justice, and is not founded in contract. Contract indeed may
qualify it, as in Swain v. Wall,^ where three were bound for H. in an
obligation, and agreed if H. failed, to bear their respective parts. Two
proved insolvent, the third paid the money, and one of the others becoming
solvent, he was compelled to pay a third only.
There are in the Register, fo. 176 b,, two writs of contribution, one, "Be
contrihntione facienda inter colweredes^'' the other, " De feoffamento ; " these
are founded on the statute of Marlebridge, 52 H. 3, c. 9, which enacts, "that
if any inheritance whereof but one suit is due descends unto many heirs as
unto parceners, whoso hath the eldest part of the inheritance shall do that
one suit for himself and fellows, and the other co-heirs shall be contribu-
taries according to their portion for doing such suit. And if many feoffees
be seized of an inheritance whereof but one suit is due, the lord of the fee
shall have but that one suit, and shall not exact of the said inheritance but
that one suit, as hath been used to be done before. And if these fioffecs
have no warrant or means which ought to acquit them, then all the feoffees
according to their portion shall be contributaries for doing the suit for
J 1 Ch. Rep. 149.
460
DEERIXG V. THE EAKL OF AVINCHELSEA.
[CIIAP. V.
U^ /i^ ryt W\^J
them." The object of the statute was to protect tl)e inheritance fmm more
than one suit. The provision for contribution was an application of a prin-
ciple of justice. In Fitzh. N. B. 162. B. there is a writ of contribution
where there are tenants in common of a mill and one of them will not re-
pair the mill, the other shall have the writ to compel him to contribute to
the repair. In the same page Fitzherbcrt takes notice of the writs of con-
tribution between co-heirs and co-feofFees ; and supposes that between
feoffees the writ cannot be had without the agreement of all, and the writ
in the register countenances the idea ; yet this seems contrary to the ex-
press provision in the statute. In Sir William Ilarbet's case,^ many cases
are put of contribution at common law. The reason is, they are all in
ceqnali jure, and as the law requires equality they shall equally bear the
burden. This is considered as founded in equity ; contract is not men-
tioned. The principle operates more clearly in a court of equity than at
law. At law the party is driven to an audita querela or scire facias to
defeat the execution and compel execution to be taken against all. There
are more cases of contribution in equity than at law. In Equity Cases
Abridged there is a string under the title "Contribution and Average."
Another case at law occurred in looking into Hargrave's Tracts in a treatise
ascribed to Lord Hale on the prisage of wines. The King's title is to one
ton before the mast and one ton behind the mast. If there are different
owners they may be compelled in the Exchequer Chamber to contribute.
Contribution was considered as following the accident, on a general principle
of equity, in the court in which we are now sitting.
In the particular case of sureties, it is admitted that one surety may
compel another to contribute to the debt for which they are jointly bound.
On what principle ] Can it be because they are jointly bound % "What if
they are jointly and severally bound ] What if severally bound by the
same or ditterent uistruments ! In ever}' one of those cases sureties have a
common interest and a common burthen. They are bound as effectually
quoad contribution, as if f)ound m one Instrument, with tliis difference only
that the sums in each instrument ascertain the proportions, whereas if they
were all joined in the same engagement they must all contribute equally.
In this case Sir E. Deering, Lord Winchelsea, and Sir J. Rous were all
bound that Thomas Deering should account. At law all the bonds are
forfeited. The balance due might have been so large as to take in all the
bonds ; but here the balance happens to be less than the penalty of one.
Which ought to pay 1 He on whom the crown calls must pay to the
crown ; but as between themselves fhcy are in (rijuali jnn, ;uui shall con-
tril)ute. Tliis principle is carried a great way in the case tif tliree or more
sureties in a joint obligation ; one being insolvent, the third is obliged to
contribute a full moiety. This circumstance and the possibility of being
made liable to the wIkjIc has probably produced several bonds. But this
1 3 To. n. h.
SECT. II.] TOUSSAINT V. MARTINNANT. 461
does not touch the principle of contribution where uU are bound as sureties
for the same person.
There is an instance in the civil law of average, where part of a cargcj is
thrown overboard to save the vessel.-^ The maxim applied is qui seutit coni-
modum sentire debet et omcs. In the case of average there is no contract
express or implied, nor any privity in an ordinary sense. This shows that
contribution is founded on equality, and established by the law of all
nations.
There is no difficulty in ascertaining the proportions in which the
parties ought to contribute. The penalties of the bonds ascertain the
proportions.
The decree^ pronounced was, that it being admitted by the Attorney-
General and all parties that the Jaalanc£,_diifi^ was 38837. 14s. 8^c/., the
plaintiff' Sir E. Deering, and the defendants the Earl of Winchelsea and Sir
J. Rous ought to contribute in equal shares to the payment thereof, and
that^^they do accordingly pay each T¥94/. lis, (S\d., and on payment the
Attorney-General to acknowledge satishiction on the record of the judg-
ment against the plaintift", and the two bonds entered into by the Earl of
Winchelsea and Sir J. Rous to be delivered up.
This being a case which the court considered as not favorable to Sir E.
Deering, and a case of difficulty, they did not think fit to give him costs.
i /t^A.,,,,^^^ the King's Bench, November 16, 1787.y^ ^'"^^^/^
j / ' CAsfe for money paid, laid out, and/^xpend^. money lent and advanced, ^ _^ /- >■
j money had and received, and upon account stated. Pleas, first, Non
\ asstimpsit ; secondly. That the defendant became a bankrupt on the llth*'^^ /^-x-^V^
j February, 1785, and that the causes of action accrued to the plaintiffs x/ --
j before. At the trial at the last Westminster sittings, before Buller, J.,
I the jury found a verdict for the plaintiffs, damages 1200^., subject to i\\(f^^''-*^ /"'^'"^
! opinion of the court on the following case : — yL ^ /^ ^h,^ut^
^ The defendant having borrowed several sums of money, amounting to tr-i^~T^. _,^ ^
1500?., from ditterent persons, prevailed on the plaintiffs, on the 8th of , "^^
I -November, 1783^^^ execute jointly with him several bonds of thjs^date'To"^^'^ ^"^ ,
the persons advancing the money, and thereby to become jointly and
severally bound ^ithjijm-foj: the payment of the principal and interest by
mstalments, the first of which was to become due on the 8th' of March,
1786. The defendant by bond of the same date, 8th November, 1783,
1 Show. Pari. Cas. 19 Moor, 297.
462 TOUSSAINT V. MARTINNANT. [CHAP. V.
became bouiidJiiJl^p plaintiffs in 3000/., with a^conditioii for the pay-
meut of 1500/., with interest on the 8th of Februarj',_1784, and gave
^l
them a waiTant of attorney tojnterj.ip judgment thereupon ; which bond^
and warrant of attorney were given by the defeudant'to the phiintiffs to
secure to them the payment of the 1500^. and interest, for which they had
so become engaged as aforesaid. On the 13th of August, 1784, the plain-
tiffs signed judgment against the defendant fur 3000/.^ debt and G3/. costs,
bj_yirtue of the__said_w:nxniXLt ; and on the 29th of November, 1784,_sued
out a writ of /?. fa. returnable on the 24th day of January, 1785, upon
which the goods of the defendant to the amount of 1050/. were taken. On
the 2d of December, 1784, a commission of bankrupt issued against the
defendant, and he was thereupon declared to have committed an act of
Tjaukruptcy. On the 31st of May, 1785, the defendant obtained his cer-
tifioate. Soon after the issuing oF this commission, the assignees cltmned
y the effects, taken under the execution ; and the_sherifts, indemnifie3~Try
them, delivered to them the goods, and returned uulla bona to the said
Xn
, writ of Jj. fa. Tlie obligees in the instalment bonds proved the sums due
on their several bonds under the commission against the defendant, and
received a dividend of 5s. 6d. in the pound in respect thereof; and the
rest of the principal and interest, secured by these bonds, amounting to
1200/. 4s. Id., and for which this action was brought, has been paid by the
plaintiffs since the date of the defendant's certificate to the said obligees,
who thereupon by deed assigned over to them the subsequent dividends.
If the court shall be of opinion that the plaintiffs ought not to recover,
then a nonsuit to be entered.
Haywood contended, first, that if the bond and judgment had not been
given, the plaintiffs would have been entitled to recover on the general
ground ; and secondly, that the bond and judgment could not affect the
plaintiffs' right, or make any difference in the question. As to the first,
laying the bond and judgment out of the question, this is like the common
case where a surety, having executed a bond jointly with the principal for
money to be paid at distant instalments, which become due after the
bankruptcy of the principal, pays the money and then brings his action for
money paid agoJnst the bankrupt. The debt from the bankrupt to the
surety accrues only upon the payment of money for which he is bound ;
he is not damnified till after the bankruptcy, and till damnification he has
no cause of action. And even where the bond in which the surety has joined
has been forfeited before bankruptcy, by which a debt in law arises, and
where it is perfectly clear that the surety must ultimately pay the debt,
no action lies till the money is actually paid. Taylor v. Mills and Another,'
and Paul v. Jones.^ 8o here there was no debt due to the plaintiffs till
they had been called upon for payment of the money ; and that not being
till after the bankrujjtcy, there was no subsisting debt which could bo
•-' Cowi.. 525. 8 1 T. K. 599.
SECT. II.] TOUSSAINT V. MAETINNANT. 463
proved under the commission. Hence tlie form of this action is not on a
contract executory, nor on a promise to indemnify, but on an indebitatua
assumpsit for the money paid. If it be contended that tliis bond, being
absohite in its form and payable at a certain day, was forfeited before
the bankruptcy, and so might have been proved under the commission, it
is to be observed that it is stated in the case that the bond was given " to
secure the payment of 1500^., etc.," and a security for payment of the
money for which a surety has engaged himself, is a security to indemnify.
Heskuyson v. Woodbridge.^ If, then, this be a bond of indemnity, the
next question is, whether it could be proved under the commission. But
the plaintiffs could not then swear to any debt being really due and
owing ; for though there was, according to the strict legal acceptance of
the words, a debt due, yet the bond and judgment were in fact given for
payment of money by instalments which had not become due ; so that
they were really given to secure a sum of money whicli never might be
owing. Neither could the commissioners permit it to be proved, because
it was fraudulent as against the general creditors ; it would have been an
attempt to load the bankrupt's estate with a double dividend for the same
debt. No consideration had been paid for it before the bankruptcy, for
the consideration ought to be one by which the bankrupt's estate receives
benefit. And the commissioners have a right to examine into the consid-
eration of all notes, bonds, or judgments attempted to be proved under the
commission.^ The mischievous consequences of permitting such debts to
be proved might be very serious. It would open a door to great fraud ;
for a bankrupt, by collusion with his favorite creditors, might give them a
preference in securities to any amount. Suppose a bankrupt could pay
I5s. in the pound ; by this double security his suretj'- would be entitled to
30s. in the pound, and the bankrupt might cheat the honest creditors of
one half of his estate. By increasing the securities, this evil might be
increased to any extent. On another ground this bond and judgment
must be inadmissible by the commissioners ; for when they came to inquire
into the consideration, it would appear that whether it would ever become
a debt or not was an event depending on contingencies ; non constat that
the instalments might not be paid, and the plaintiffs never called upon.
Hence it could not be the subject of valuation ; for the plaintiffs could not
tell whether they should be damnified or not, or to what amount. This
makes the great distinction between this case and that of bonds for pay-
ment of certain sums by instalments, forfeited before bankruptcy ; for
those, being conditioned for certain stated payments subsequent to the
bankruptcy, are the subject of a valuation ; but this, depending on a con-
tingency which may never happen, cannot be valued.
If it be contended that indebitatus assumpsit for money paid, laid out,
and expended cannot be maintained in this case, it may be answered, first,
i Dougl. 160, n. 55. 2 j Atk. 71, 222.
464 TOUSSAINT V. MAETINNANT. [CIIAP. V.
that though this is a bond iu a qualified sense, yet its operation is put an
end to by the commission ; and secondly, that at all events it only gave
the plaintifts a concurrent remedy. As to the first, it must be allowed
that this was a debt due and owing at law before the commission, and
therefore was barred by it, though it could not be proved under it for
want of a consideration. Bankruptcy would be a good plea to an action on
the bond ; for the plaintiffs could not reply that it was given fur payuient
of a sum of money at the day on which they should be obliged to dis-
charge the instalment bond, because that would be to aver against the
condition. The same reasoning holds as to the judgment ; for if execution
had been taken out, the pleadings would have come to the same issue in
an audita querela. So that this bond and judgment could be a security
only up to the time of the bankruptcy, when an act of law was interposed
to destroy its effect ; and that being out of the way, an assumpsit arose, as
in the common case upon payment of the money. With respect to the
second answer, this bond and judgment could only be a collateral security.
The defendant, in order to indemnify the plaintiffs, gave a present debt
as a security for one which might possibly exist at a future period ; but a
bond given for a future debt is no extinguishment or discharge of it.^ In
Cotterel v. Hooke,^ where a bond and also a deed of covenant were given
to secure an annuity, though the bond was forfeited before a discharge
under the insolvent act of 16 Geo. 3, c. 38, the defendant was held liable
to be sued upon the covenant for payments becoming due after the dis-
charge. Here no debt arose till the plaintiffs were damnified, which was
not till after tl)e bankruptcy ; and that future debt for money paid could
not be deraigned by a bond made before the bankruptcy, long before the
debt accrued. So that even if the bond and judgment could have been
proved under the commission, the dividend could only be a discharge pro
tanto ; and the plaintiffs will be entitled to hold their verdict ; for they
have a right to recover the 1200^., deducting the amount of that dividend.
Wood, for the defendant, was stopped by the court.
AsHHURST, J. There is no doubt but that wherever a person gives_a
security by way of indemnity for another, and pays the money, the law^
raises an aisumpsit But where he will not rely on the promise which the
law will raise, but fakes a bond as a security, there he has chosen his own
remedy, and he cannot resort to an action of assumpsit. Therefore, in this
case his only security is the bond. Possibly, if the plaintiffs had recovered
upon the bond when it was forfeited, and they were not afterwards damni-
fied by being obliged to pay the instalments, by a bill in equity they might
have been compelled to refund all that money which tliey had received.
But at law the penalty of the bond became a Ic^'-al debt : and as soon as
that was forfeited they became creditors of the bankrujit, and might liaye.
"proved their debt un(ior the commission. But still the boncTwag^theJ.
1 1 Leon. V.A. 2 Dougl. 93.
SECT. II.] TOUSSAINT V. MARTINNANT. 465
remedy ; aud they shall not be permitted to change their security upon a
subsequent event, and resort toTiiat indemnity which flie Iaw"wbuIi3"haVe '
raised.
BuLLEii, J. In ancient times no action could be maintained at law
where a surety had paid the debt of his principal ; and the first case of the
kind in which the plaintiff succeeded was before Gould, J., at Dorchester
which was decided on equitable grounds. Now, why does the law raise such
a promise ] Because there is no security given by the party. But if the
partv_choose to take a security, there is no occasion for the la"w~Eo raiscIC
proaiisc. Promises in law only exist where there is no express stipulation
between the parties ; in the present case the plaintiffs have taken a bond,
and therefore they must have recourse to that security. It has been ob-
jected by fITe plaiuLlU's' counseT"fIiat this bond could not be proved under
the commission of bankrupt ; but there would have been no difficulty in
that. First, it is said that there is no consideration for it ; but clearly, as
a question of law, there is a sufficient consideration ; for the surety binds
himself to pay the debt of another, who afterwards becomes a bankrupt ;
the consideration is therefore good in law. And it is not unreasonable ;
for the surety may say he will only lend his credit for three months, and
if the money be not paid at that time, he will call on the principal for his
indemnity. The surety is the effective and responsible man ; he is the per-
son to whom the creditor principally looks, and he is taken because the
credit of the principal is doubted. There is as little foundation for the
other objection, that the bond is fraudulent because it is made payable
before the day on which the first instalment became due. It is not
fraudulent against the estate of the bankrupt, for the bankruptcy cannot
make any difference in this case. In no event could this circumstance
have that effect on the bankrupt's estate which has been suggested. For
in the case put, a court of equity would undoubtedly give relief. If it
were attempted to prove the two bonds under the commission, a court of
equitywouldjaterposei, n.nd would not suffer more than 20s. in'the^ pound
to be paid for the same debt. I do not, indeed, say by what particular
course a court df equity would give relief; one way would be to compel the
creditor to make his^election to which of the two securities he w'ould
resort ; or where the whole sum had been proved under one of the bonds,
tEey~would "compel the party in possession of the other to give it up. But
witir>espect to TKeTorm of this action, I am clearly of opinion "that it
cannot be supported.
Grose, J., declared himself of the same opinion.
Judgment of nonsuit to he entered.
VOL. ri. — 30
466
TUKNER V. DAVIES. [CHAP. V.
i-«-
"re Lord Ken yon, C. J'., Trinity Term, 1796.
\Repvrled in 2 Espinasse, 479.]
^<^Tf T"c>r>Tir 1 7Qfi
Tins was an action of assumpsit for mouey paid, laid out, and expended
i- /a^^L^^^ -^sc/'^lto the use of the defendant.
/ ' PieaTof no7i-assiimpsit.
^^^■^>^^7'S/^ ^ - The action was brought to recover from the defendant a moiety of the
/ ^ y sum of 231. paid by Turner, the plaintiff, on account of the debt of one
h^nA>^^ '^ ^/"^ Evans, and arose under the following circumstances.
/ / There being an execution in Evans's house, at the suit of Brough ; to induce
'^^^^c^U.c^j^^u^ Brough to withdraw it and to secure the debt, Turner, the plaintiff, and
, Davies, the defendant, joined in a warrant of attorney to Brough ; but Davies
t drvvZn^^St^/^ had joined ni consec^uence of having beenapplicd to by Turner and Brough,
/ whoTequ^ed an additional security. Turner, the plaintiff, took a bill of sale
■^ ^?^^;c?x.^T_^Z -"frSnTEvans for his own security, dated 20th January, 1796; and an indorse-
^^ y y y ment was made on it, declaring the purpose for which it was given.
otlC^-vy/- ^iC^C ^jjoi-i-iei. execution having issued against Evans, thegoodsjwerejaken in
^ yC^l^ -^<C^ ^^"X"^"^'^". ""'^ ITivnor; Dip plninl iff, Tiiirl-TVlidJjie^^io^^
^ / nu'i n^w ^r'^Mgtit t}>it< ^^ckM^r^ nonnTHlT7e"deffindantjor_contribution of the
moiety
lOr
-ytiTi^ry^
^V
EXYON. I have no doubt, that where two parties became joint
sureties for a third person, if one is called upon and forced to pay the whole
of the money, he has a right to call on his co-security for contribution :
but where one has been Ind'irt^^^ '^'^ ^'^ l^pfomf^ surAry-rrtrthFirfstance ofTbe
other, though he tlTereby renders himself liable to the person to whom the
security is giVUll, lUet'e Is no pretence tor saymg tliat he shall be irablc to
be called upon by the person at whoso request he entered into the security.
'ThislTtHe^ase here: Davies, the defendant, became security at the instance
of Turner, the plaintiff, to Brough ; and there is still less pretext for Turner
to call on the defendant in this action, as he took tlie precaution to secure
himself by a bill of sale. I am of opinion the defendant ought to have a
verdict.
The jury found for the defendant.
Gihhs and Marryatt for the plaintiff.
Garrow and Harrow for the defendant.
SECT. II.] COWELL V. EDWARDS. 467
COWELL, Administrator of COWELL v. EDWARDS.
In the Common PlexVS, July 1, 1800.
[Reported in 2 Bosamjuct <|- Puller, 2G8.]
Indebitatus assumpsit for money paid.
John Cowell, the plaintill's intestate, having entered into a joint and
several bond with seven other persons, two of whom were principals and
the five others as well as himself sureties, was together with his co-sureties
called upon by the obligees to pay the sum engaged for ; the defendant
and two of the other sureties paid each a part of that sum, but the present
plaintiff's intestate paid the residue. Upon this the plaintiff, considering
the defendant and one of the two sureties who had already contributed as
the only solvent sureties, called upon them to pay their proportion, and
now brought this action to recover fi-om the defendant such a sum of
money, as when added to what had been already paid by him would make
up one-third of the whole sum paid to the obligees, deducting only what
had been contributed by the fourth surety not called upon at this time.
The cause was tried before Lord Eldon, C. J., at the sittings after last
Easter term, when the plaintiff obtained a verdict for a sixth of the whole
sum paid, not allowing for the sum paid by the fourth surety, with liberty
to move the court to enter a verdict for the whole demand.
Lens, Serjt., however, on the part of the defendant obtained a rule calling
upon the plaintiff to show cause why this verdict should not be set aside
altogether and anew trial be had. He took these objections; that this
action could not be maintained at law by one co-surety against another ;
that if the action could be maintained for one-sixth of the whole sum en-
gaged for, and which under the circumstances of the present case he in-
sisted was all that could be recovered from the defendant, yet, that the
insolvency_of the two principals and of the three other co-sureties shoulcF
have been proved in order to entitle the plaintiff to the present verdict.
Shepherd and Vaughan, Serjts., were proceeding on this day to show
cause, and cited Deering v. Lord Winchelsea, when they were stopped by
The Court, who observed that it might now perhaps be found too late to
hold that this action could not be maintained at law, though neither the
insolvency of the principals or of any of the co-sureties were proved ; but
that at all events the plaintiff could not be entitled to recover at law more
than one-sixth of the whole sum paid.
And Lord Eldon, C. J., said, that he had conversed with Lord Kenyon
upon the subject, who was also of opinion thnt no mnrfi tWiRn aliquot
part of the whoje^regard being had to the number of co-sureties, could be/
recovered at law by^e dcfcndantj though if the iusolvencvofall thT
468
CRAYTIIOKNE V. SWINBURNE.
[chap. V.
VN
other parties were made out, a larger proportion might be recovered in a
court of equity.
' In consequence of these intimations from the court, and of an opinion
thrown out by them that the matter must ultimately be carried into a
court of equity, an offer was made by the defendant and acceded to by the
other side, to enter a nonsuit without costs.
j^^ota ; Lord Eldon also added a doubt of his own, Whether a distinction
mif'ht not be made between holding that an action at law is maintainable
in the simple case where there are but two sureties, or where the insolvency
of all the sureties but two is admitted, and the insolvency of the principal
is admitted, and holding it to be maintainable in a complicated case like
the present, such insolvency being neither admitted nor proved, and where
the defendant after a verdict against him at law may still remain liable to
various suits in equity with each of his other co-sureties, and where the
event of the action cannot deliver him from being liable to a multiplicity of
other suits founded upon his character as a co-surety.
]\s i'l^u^ 'lU4lli-'f']t
CRAYTHORNE v. SWIXBURNE.
In Chancery, before Lord Eldon, C, July 23, 1807.
[Reported in 14 Vesey, 160.]
Hamersley & Co., bankers, being creditors of Henry Swinburne, and
calling in their money, an application was made by Sir John Swinburne,
the nephew of Henry Swinburne, to the Newcastle Bank; who advanced
the money upon the security of two bonds : one the joint and several bond
of Henry Swinburne as principal, and Craythorne as surety, for 1200?^
the other by Sir John Swinburne, reciting the former bond, and the ad-
vance of the money to Henry Swinburne and Craythorne, at the request
of Sir John Swinburne, with condition to be void on payment by Henry
Swinburne and Craythorne, or either of them. The 1200/. advanced was
appHed accordingly in discharge of the debt to Ilamprslpy ,{-. Co. After-
wards Henry Swinburne died abroad, in^olvpnt ; and Craythorne, having
paid the whole sum, filed the bill ; ])raying contribution by Sir John Swin-
burae ; who insisted that he^was not a co-surety with the plaintiff, but
merely a collateral security to tlie bank in default of payment by Henry
Swinburne and Craythorne ; and offering evidence of his conversation with
one of the partners in the bank, stating their objection to the security of
Henry Swinlnirnc and Craythorne ; and requiring, as the condition of the
advance, a bond from Sir John Swinburne to pay the money, in case they
should not pay it.
SECT. II.] CRAYTIIORNE V. SWINBURNE. 469
Sir Samuel Romilly aud Mr. Wear for the plaintiff.
Mr. Richards and Mr. Bell for the defendants.
July 17th. Lord Chancellor Eldon. Before the final decision of this
case I wish to have the Register's Book examined to see what was done in
a case that occurred in Trinity term, 1706, Cooke v. }
Upon the relation of principal and surety some things are very clear.
It has been long settled that, if there are co-sureties by the same instru-
ment, and the creditor calls upon either of them to pay the principal debt,
or any part of it, that surety has a right in this court, either upon a prin-
ciple of equity or upon contract, to call upon his co-surety for contribution ;
and I think, that right is properly enougli stated as depending rather upon
a principle of equity than upon contract ; unless in this sense, that the
principle of equity being in its operation established, a contract may be in-
ferred upon the implied knowledge of that principle by all persons, and it
must be upon such a ground, of implied assumpsit, that in modern times
courts of law have assumed a jurisdiction upon this subject, — a jurisdiction
convenient enough in a case simple and uncomplicated, but attended with
great difficulty, where the sureties are numerous ; especially since it has
been held,^ that separate actions may be brought against the different sure-
ties for their respective quotas and proportions. It is easy to foresee the
multiplicity of suits to which that leads.
But, whether this depends upon a principle of equity or is founded in
contract, it is clear a person may by contract take himself out of the reach
of the principle, or the implied contract. In the case of Deering v. The
Earl of Winchelsea,^ which, I recollect, was argued with great perseverance,
persons not united in the same instrument were made to contribute ; and
it was decided, that there is no distinction, whether they ai'e bound in the
same obligation or by several instruments. That case also established,
that though one person becomes a surety without the knowledge of another
surety, that circumstance introduces no distinction. If the relation of
surety for the debtor is formed, and the fact is not that the party be-
comes surety for both the principal debtor and another surety, not for the
principal alone, it is decided, that, whether they are bound by several in-
struments or not, whether the fact is or is not known, whether the number
is more or less, the principle of equity operates in both cases, upon the
maxim that equality is equity ; the creditor, who can call upon all, shall
not be at liberty to fix one with payment of the whole debt ; and upon the
principle, requiring him to do justice, if he will not the court will do it
for him.
When once it is admitted, as it was in that case, that a man may by
contract place himself out of the reach of the principle, you must in every
case consider, whether the pai'ty has done so. It was admitted in that
case, that, one bond being for 10,000^., and the surety having paid it, Lord
1 2 Freeni. 97. ^ Cowell v. Edwards, 2 B. & P. 268. « 2 B. & P. 270.
470
CRAYTIIORNE V. SWINBUENE.
[CIIAP. V.
V
V
ohvrt^i'i^ A
ln^i
4^
Winchelsea having executed a bond for 4000^. only, though he was a surety,
yet he had by contract taken himself out of the reach of the GOOOZ., and
was liable only to the extent of 4000Z. It must then be admitted, that, if
one surety can provide that another shall have no demand against him for
a moiety of the debt, he may also contract that the other shall have no
demand whatsoever against him.
The question then is, wh^etbei- the meaning of this instrument executed
by the defendant is, that he will be a co-surety; m- that tlio snrpt.v in the
former instrument was with referencfi_±o him to be considered a priiici^al.
If the real nature of the transaction is to be understood thus, that Henry
Swinburne and the plaintiff entered into a bond for 1200/. to the Newcastle
Bank, Swinburne as principal and the plaintiff as surety, and Sir Jolin
Swinburne, who had no communication, as it appears, with them, proposed
to the bank that he should become a co-surety, there is an end of the ques-
tion ; but, if not constituting himself co-surety with the plaintiff, he pro-
posed to the bank only that he would engage to pay them if they coiild
not get payment from either of the others, then he has by contract with-
drawn himself from the reach of the principle ; and the plaintiff cannot
complain, as the transaction was without his knowledge, that the defendant
bound himself only to the extent he thought proper.
With an opinion upon this point I do not however choose to decide it
without an inquiry as to that case in Freeman ; which, if it was decided, is
a strong case, as there could be no doubt whether the second security was
to be considered a collateral security; and therefore there could be no
question whether the party meant to be a co-surety, or only to give, as is
contended in this instance, a collateral security.
July 23. The Lord Chancellor. Before I delivered the opinion I had
formed upon this, I desired to have the Register's Book examined as to the
case in Freeman,^ which occurred to me ; with the view of being enabled
to determine, whether it was the opinion of the Master of the Rolls of that
day, or had the authority of a judgment, when such a question as this was
before him. I cannot find that any such judgment appears in the Register's
Book. I must therefore take it to be only a declaration of the opinion of
the Master of the Rolls upon the point ; a declaration undoubtedly of great
weight, and deserving great attention. It is therefore my duty upon a case,
in its circumstances perfectly new, to deliver my own opinion.
I take the case to be this, that Henry Swinburne was the only original
debtor to Hamersley & Co., who called for their money ; and it therefore
became necessary for him to raise the money elsewhere. Sir John Swin-
burne appears to have ap{)lied to the Bank at Newcastle ; and according to
the proposal made to those bankers, the sum of 1200/. was to be raised
upon the credit of Henry Swinburne and the plaintiff, to be applied to dis-
charge the debt to Hamersley & Co. In that transaction so proposed,
1 Cooke V. , 2 Frcem. 97.
SECT. II.]
CRAYTIIORNE V. SWINBUUNE.
471
/<
llcury Swinburne Avas to be the principal, and the plaintiff the surety. Ih •/
The Newcastle Bank, upon a discussion that took place between them and
Sir John Swinburne, intimated their dislike to deal upon the security of
Henry Swinburne, and that they were not satisfied to deal upon the secu-
rity of both Jiim and Craythorue. One bond was executed and tendered
to the bank ; in which Henry Swinburne as principal, andJDraythornc as
surety, are jointly and severally bound for the sum of 1200/. Another bond
was executed, in consequence of some conversation between the bank, by K y^
one of the partners and Sir John Swinburne, which I think is admissible
evidence. The cause may be decided without reference to that question ;
but as it has an effect \ipon my mind, it is proper that the parties should
know that. The substance of that communication is, that the house did
not like to trust to the security of Henry Swinburne and Craythornc : but,
if Sir John Swinburne had a good opinion of the credit, that might be given,
if not to Henry Swinburne, to Craythorne, and would become security to
the bank that he would pay, if they did not, by entering into a bond to
pay the debt, if they did not pay it, the bank would advance the money.
The sum of 1200/. was advanced accordingly; the bond executed by Sir
John Swinburne reciting the former bond for money advanced to Henry
Swinburne and Craythorne ; and the condition is that it shall be void, if
Henry Swinburne and Craythorne, or either of them, pay the money ; and ,
the banker says, he understood it to be a collateral security, by which heP
means a supplementar~"security.
The question is, first, whether Sir John Swinburne is under this instru-
ment to be considered as a co-surety with Craythorne ; or, whether the
effect is, that Sir John Swinburne did not undertake to stand as a co-surety
with Craythorne, but was surety for both ; to pay only if both should make
default. It must be considered as entirely clear of any objection that
Craythorne could take, that Sir John Swinburne was not at liberty to deal
thus ; as the proposition to the bank was, that Henry Swinburne and Cray- ,
thorn e were to be their debtors ; and Sir John Swinburne, voluntarily acid-"'
fng hissecurity, cannot be bound bevo_nd. the ext'^nt -lo_ghich he thought '''^ ^
proper to bind himself y
It was contended for the first time in Deering v. The Earl of Winchelsea,^
that there is no difference, whether the parties are bound in the same or
by different instruments, provided they are co-sureties in this sense for the
debt of the principal ; and farther, that there is no difference, if they are
bound in different suras, except that contribution could not be required
beyond the sums for which they had become bound. I argued that case,
and was much dissatisfied with the whole proceeding and with the judg-
ment ; but I have been since convinced that the decision was upon right
principles. Lord Chief Justice Eyre in that case decided that this obliga-
tion of co-sureties is not founded in contract, but stands upon a principle
1 2 B. & P. 270.
JU/,
472 CRAYTIIORNE V. SWINBURNE. [CIIAP. V.
of equity ; find Sir Saryiuet Eomilly has very ably put, what is cousistent
with every idea, that after that principle of equity has been universally
acknowledged, then persons acting under circumstances to which it applies
may properly be said to act under the head of contract, implied from the
universality of that principle. Upon that ground stands the jurisdiction
assumed by courts of law ; a jurisdiction attended with great difficulty,
where there are many sureties, though not in the simple case where there
are only two, one of whom may bring his action for a moiety upon the im-
plied undertaking. But, whether this stands upon contract or a principle
of equity, it is clear that a party may take care by his engagement that he
shall be bound only to a certain extent. That is proved by the case of
Swain v. WalV where the engagement being to pay in thirds, that contract
was held to take them out of the principle that would have required a
moiety ; and also by Deering v. The Earl of Winchelsea, where it was ad-
mitted that Lord Winchelsea, though liable as a surety, had by contract
withdrawn himself from any liability by virtue of which he should bo
charged beyond 4000/.
If, therefore, by his contract a party may exempt himself from the lia-
bility, or tliat extent~orTiabiIity in which without a special engagement he
would be involved, it seems to follow that he may by special engagement
contract~~so as not to be liablein any degree. That leads to the true"
ground, the intention of the party to be bound, whether as a co-surety, or
only if the other does not pay ; that is, as surety for the surety, not as co-
surety with him. As to the bond itself, it is clear upon the face of this
bond, and according to its language, that the bank and Sir John Swin-
burne, if at liberty to do so, did consider that this sum of money was to be
in advance as between Sir John Swinburne and the bank, to the other two.
They have no right to complain of it, for there is -no contract by Sir John
Swinburne with the other two ; he might limit his engagement with refer-
ence to them as he thought proper, and the bond upon the face of it makes
him surety only for the principal and the other surety. But it is clear upon
the parol evidence, and why is not that competent evidence? Evidence is
admitted to show who is the principal, and who the surety ; and, in order
to determine that, to show to whom the money was advanced ; and why
is it not to be admitted to show to whom the money was advanced as be-
tween Sir John Swinburne and the others 1 But this goes farther ; for the
evidence is, not in contradiction to, but in support of the instrument ; and
whether the demand is founded upon the equity only, or upon the implied
contract, why should not evidence be admitted to show that the ecjuity
ought not to be applied, and the contract ought not to be inferred ?
II do nut state that the circumstance that Sir John Swinburne entered
into this security without the knowledge of Craythorne would have repelled
the doctrine of contribution, as that stands upon this ; that all sureties are
1 1 Rep. C'h. 80.
SECT. II.] DAVIES V. HUMPHEEYS. 473
equally liable to the creditor, and it does not rest with him to determine
upon whom the burthen shall be thrown exclusively ; that equality is
equity ; and, if ho will not make them contribute equally, this court will
finally by arrangement secure that object. But then the question comes
round, whether that is according to the contract or engagement of the
surety. My opinion is wrong, if Sir John Swinburne is a co-surety. Hav-
ing considered this much, and given great attention to the case in Freeman,
I think he is not a co-surety ; but, as between him and Craythornc, the
latter is .]ust as much a principal as Henry Swinburne. The consequence]
is, that the equity does not apply, — Sir John Swinburne being liable onl
in case the other two do not pay, and not being liable with them.
This bill therefore must be dismissed, but witho^iFcosfsT
DAVIES V. EVAN HUMPHREYS.
In the Exchequer, Hilary Term, 1840.
[Reported in 6 Meeson Sr Welshy, 153.]
Indebitatus assumpsit for money paid, and on an account stated. Pleas,
1st, non assumpsit ; 2d, the Statute of Limitations.
At the trial before Coleridge, J., at the Carmarthenshire spring assizes,
1839, the following appeared to be the circumstances upon which the action
was founded : Shortly before the making of the promissory note herein-
after mentioned, that is to say, about the month of November, 1827, the
daughter of the plaintiff married the defendant, who was the son of one
John Humphreys, the defendant in the action next mentioned, and which
John Humphreys was then the tenant and lessee of a farm called Coed, in
the same county. The plaintiff gave his daughter on her marriage ,£100
and some household furniture, and John Humphreys, on the same occasion,
gave up to the defendant, his son, the lease of Coed, together with the stock
and implements (which were valued at £1150), on the understanding that
the defendant should pay him for the same the sum of £800 (being £350
less than the actual value), in the following manner : viz., by paying down
the sum of £400, and giving his undertaking for the other £400, The
defendant handed over to his father the £100 which he received with his
wife, and they both (Evan and John Humphreys) applied to the plaintiff to
make up the other £300, which were to be paid down as above mentioned.
This the plaintiff declined doing ; but agreed, that on the lease of Coed
being deposited with him as a security, and on their procuring the money
from a relative of theirs, one John Evans of Altycadno, he would join with
them as their surety in a promissory note for the amount. On the 27th of
December next after the marriage, the plaintiff, the defendant, and John
474 DAVIES V. HUMPHREYS. [CHAP. V.
Humphreys met, when one Thomas Jones, an attorney, being sent for, he
drew up a promissory note, which was signed by them and witnessed by
him ; but he died before the trial. The following is a copy of the note and
indorsements : —
£300.
On demand we do hereby jointly and severally promise to pay to Mr. John
Evans, of Altycadno, or order, the sum of three hundred pounds, with lawful
interest for the same. Value received. As witness our hands this 27th
day of December, 1827.
(Signed) Evan Humphreys,
^Yitness, Of Coed, Llandifilog.
Thomas Jones, W. Davies, Mamaurge.
Attorney, Caermarthen. John Humphreys.
Lidorsed.
The principal money or sum of three hundred pounds is not to be called
in, or recovered, or paid up, unless six months' previous notice is given of
the intention of so doing in writing.
Received one year's interest, paid to the 27th of December, 1829.
1831, December 31. Eeceived of Mr. William Davies the sum of two
hundred and eighty pounds, on account of the within note, the j£300 having
been originally advanced to Mr. Evan Humphreys.
Witness, John Evans.
Thomas Jones.
June 5, 1832. Received on account of this note £20.
John Evans.
Received 11th of July, 1832, of Mr. William Davies, 8/. 10s. of account
of note and interest, which I hold of him.
John Evans.
Received also, this 29th of August, 1832, 10^. 10s.
Altycadno. John Evans.
January 12th, 1833. Received this day of Mr. William Davies, the sum
of £11, which, with the sum of £ before paid by him to me, is the
balance of principal and interest on this note.
Witness, John Evans.
Lewis Morris, Attorney, Caermarthen.
No evidence was given of the payee's applying to the defendant or to
John Humphreys for payment, but it was proved that he ai)plied to the
plaintiff, and that the plaintiff made the payments, the receipts for which
were indorsed on the note, on the respective days stated in tliose receipts.
It also appeared that those receipts respectively were signed by the payee,
and that he died before the trial.
SECT. II.] DAVIES V. IIUMniREYS. 475
The amount of principal and interest due on the note was paid by tlic
plaintiff' more than six years before the commencement of the suit, with
the exception of £30, which was paid within that period.
Two grounds of defence were relied upon at the trial : 1st, that the
respective payments were made by the plaintiff" as a gift to his son-in-law,
and not as a loan ; and, 2dly, that the statute of limitations was a bar to
all except the £30, The learned judge left it to the jury to say whether
the transaction was a gift or a loan ; and told them that, in his opinion, the
statute barred all but the sum paid within the six years; but should they
be of opinion that it was a loan, he would reserve leave to the plaintiff' to
move to increase the damages from £30 to £300, in case this court should
be of opinion that he was wrong in point of law. The jury found for the
plaintiff", damages £30. In Easter term, 1839, Chilton obtained a rule
pursuant to the leave reserved,^
In the action by the same plaintiff" against John Humphreys, which was
also an action of indebitatus assiwipsit for money paid, and on an account
stated, the pleas were the same as in the other action, viz., non assumpsit
and the statute of limitations. In this action, however, the plaintiff^, by his
particulars of demand, stated that he brought his action to recover £165,
being the half of £330, which he was obliged to pay as principal and interest
due on a promissory note for £300, dated the 27th of December, 1827, and
made by the plaintitf and defendant and one Evan Humphreys, but signed
by the plaintiff" and the defendant as sureties for the said Evan Humphrej's ;
and towards the payment of which said sum of £330, so paid by the plaintiff",
the defendant, as such co-surety, was liable to contribute one moiety.
On the trial of this cause, at the same assizes, the facts of the case
appeared to be the same as those detailed in the preceding case against
Evan Humphreys, except that Evan Humphreys was himself called as a
witness for the now defendant, and stated that the money was borrowed of
Evans, of Alt-y-Cadno, at the plaintiff"'s request, for his daughter, and to
enable the witness (her husband) to pay his father for the stock of the farm
left at Coed. It was objected, on the part of the defendant, that there was
no evidence to show that the plaintiff" signed the note as co-surety with the
defendant, as stated in the particulars of demand, except the indorsement on
the note that the money was originally advanced to Evan Humphreys, and
that that indorsement was inadmissible for that purpose. The learned judge
overruled the objection, but gave the defendant leave to move to enter a
nonsuit, should the court above be of a diff"erent opinion. The questions left
by him to the jury were : 1st, Were the plaintiff" and defendant co-sureties
with Evan Humphreys, or was the plaintiff" a principal 1 an<l, 2dly, Was
the money advanced by the plaintiff" as a gift, or advanced on his credit by
way of loan? and he told them that he thought the statute of limitations
* This rule was discharged. The opinion of the court relating tliereto lias been
omitted. — Ed.
476 DAVIES V. HUMPHREYS. [CHAP. V.
precluded the plaintiflf from recovering more than £15, a moiety of the sum
paid by him within the six years next before the commencement of the
action. In answer to the first question, the jury said that they thought
the plaintiff and defendant were co-sureties ; and to the second, that the
money was advanced as a loan only ; and their verdict was accordingly taken
for the plaintiff, damages £15 ; the learned judge giving the plaintiff leave
to increase the verdict, either to £30 or £150, if the court above should
be of opinion that he was entitled to recover either of those sums.
In Easter term last, E. V. Williams and Chilton obtained cross rules,
the former for a nonsuit, and the latter to increase the damages to £30 or
£150.
In Trinity term, cause was shown against the rule for a nonsuit by
Chilton and jEvans for the plaintiff.
E. V. Williams and Nicholl, contra.
In the Vacation sittings after Trinity term, cause was shown against the
rule to increase the damages in both actions, by
K V. Williams and Nicholl for the defendant.
Chilton and Evans, contra.
Parke, B. This was an action by the plaintiff against the defendant,
his co-surety on a promissory note, dated the 27th of October, 182 7,- for the
sum of £300, with interest, to recover a moiety of the whole amount which
he had paid to the payee. A rule granted in this case, as well as one which
was granted in another action on the same note against the principal, was
V Y\ argued in the sittings after Trinity term. In the course of the last term,
U the court disposed of the rule in the latter action, and one of the questions
I in this; having reserved for further consideration thc^uestioii^ati what time
Ithe right of one co-surety to sue the other for contribution arises.
This right is founded not originally upon contract, but upon a principle
of equity, though it is now established to be the foundation of an action,
as appears by the cases of Cowell v. Edwards,^ and Craythorne v. Swinburne j*"
though Lord Eldon has, and not without reason, intimated some regret that
the courts of law have assumed a jurisdiction on this subject, on account
of the difficulties in doing full justice between the parties. What then is
the nature of the equity upon which the right of action depends? Is it
that when one surety has paid any part of the debt, he shall have a right
to call on his co-surety or co-sureties to bear a proportion of the burthen,
, 's or that, when he has i»aid more than his share, he shall have a right to_be_
reimbursed whatever he has paid beyond it? or must the whole of the debt
be paid Ijy him or some one liable, before he has a right to sue for contribu-
tion at all] We are not without authority onthis_subiect, and it is in favor
of the second of these propositions. Lord Eldon, in the case of Ex parte
(TitVord,^ stiites, that sureties stand with regard to eacli (jther in a relation
which gives rise to this right among others, that if one pays more than
1 2 B. & P. 269. « 14 Ves. 164. 8 6 Ves. 805.
2
SECT. II.] DAVIES V. HUMPHREYS. 477
his proportion, there shall be a contribution for a proportion of the excess
beyond the proportion which, in all events, he is to pay : and he expressly
says, "that unless one surety should pay more than his moiety, he would
not pay enough to bring an assumpsit against the other." And this appears
to us to be very reasonable; for, if a surety pays a part of the debt onlyj
and less than his moiety, he cannot be entitled to call on his co-surety, who
might himself subsequently pay an equal or gi-eater portion of the debt ; in
the former of which cases, such co-surety would have no contribution to pay,
and in the latter he would have one to receive. In truth, therefore, until ^.
the one has paid more than his proportion, either of the whole debt, or of that 11 J^ ,\
part of the debt wTiich remains unpaid by the principal, it is not clear / ] ^^
that he ever will be entitled to demand anything from the other ; and before 1 X /
that, he has no equity to receive a contribution, and consequently no right
of action, which is founded on the equity to receive it. Thus, if the surety,
more than six years before the action, have paid a portion of the debt, and
the principal has paid the residue within six years, the statute of limitations
will not run from the payment by the surety, but from the payment of the
residue by the principal, for until the latter date it does not appear that
the surety has paid more than his share. The practical advantage of the
rule above stated is considerable ; as it would tend to multiplicity of suits,
and to a great inconvenience, if each surety might sue all the others for a
ratable proportion of what he had paid, the instant he had paid any part
of the debt. But, whenever it appears that one has paid more than his
proportion of what the sureties can ever bo rnllpd npnnn-o pny^ thprT^nnd
not till then, it is also clear that such part ought to be repaid by the others,
and the action will lie for it. It might, indeed, be more convenient to
require that the whole amount should be settled before the sureties should
be permitted to call upon each other, in order to prevent multiplicit}' of
suits ; indeed, convenience seems to require that courts of equity alone
should deal with the subject ; but the right of action having been once
established, it seems clear that when a surety has paid more than his share,
every such payment ought to be reimbursed by those who have not paid
theirs, in order to place him on the same footing. If we adopt this rule,
the result will be, that here, the whole of what the plaintiff has paid within |/k,K ,
six years will be recoverable against the defendant, as the plaintiff had paid
more than his moiety in the year 1831 ; and consequently the rule must be
absolute to increase the amount of the verdict from £15 to £30.
Bules accordingly.
478 riTT V. ruESSOKD. [chap. v.
PITT V. PUESSORD.
In the Exchequer, May 29, 1841.
[Reported in 8 Meeson Sf Welsby, 538.]
Assumpsit for money paid, and on an account stated.
Plea, non assiimpsit.
The cause was tried before the under-sheriff of Middlesex, when it ap-
peared that the plaintiff and defendant, together with a person named
Boston, had signed a joint and several promissory note for £50, paj'able
two months after date, the plaintiff and defendant being sureties for Eos-
ton. The latter paid only a portion of the amount, and on the note becom-
ing due, the plaintiff paid the residue, and brouglit this action against the
defendant to recover contribution. There was no proof of any demand of
payment having been made upon the plaintiff, or that an action had been
brought by the holder of the note, but a paper was put in, which purported
to be the declaration in an action on the note by the payee against the
present plaintiff. It was objected that there was no sufficient evidence of
any demand having been made, nor of any action having been brought, the
production of the dechiration not being the proper mode of showing that
an action had b^jen commenced] The jury, under the direction of the
under-sheriff, found a verdict for the plaintiff, leave being reserved to the
defendant to move to enter a nonsuit.
Willes now moved accordingly. This action cannot be sustained, unless
it be shown that the money was paid by the plaintiff at the express request
of the defendant, or under compulsion of law for the defendant's benefit.
The jilaintiff should have shown, either that the holder had called upon
him for payment of the amount due on the note, or that he had brought
an action against him. Neither of these was shown, inasmuch as the dec-
laration was not sufficient evidence of the action having been commenced.
No man can make himself the creditor of another by voluntarily, and with-
out his request, paying a debt for him.
Parke, B. We cannot grant a rule in this case. All the parties were
Jointly and severally lial)lc to the holders of the note ; and as all were lia-
ble, one party who has paid the note may bring an action against his co-
siirety for contriliution, without showing that he paid it by comijulsion.
He was not bound to delay pay"^^"<^ '-'f tho note until an action was com-
menced against liiin. The law on this subject was fully gone into by this
court, in i\\e case of' Jbavies v. Humphreys.^
Alderson, B. This is not a voluntary payment, nor is it like the case
where one is liable as principal and another as surety. Here the sureties
1 G M. & W. 153.
SECT. II.] KEMP V. FINDEN. 479
are not liable in default of the principal; they arc all primarily liable, and
are all equally so. This was not a payment made voluntarily, butTwiwlr
payment in discharge of a debt due on an instrument on which the de-
fendant was liable.
GuRNEY, B., and Rolfe, B., concurred.
Rule refused.
^WC^ ^^^IJ KEMP V. FINDEN. /^ <^^^^ Cjo-.^^.^ ;^_^
>,**<>^ ^t*,^ In the Exchequer, January 15, 1844. ^->-^ 'i^*^^.,^.,^.^^^ ^ ^^'i^^<=^^gu
' .^i-cZt:.,^^ j/^ Ji^r^'^^Reported in 12 Meeson ^- Welsbij, 421.] '<^— ^-^^—^-^^-^ -t-f^>T^^ ,
Assumpsit for money paid, and on an account stated. Plea, non
assumpsit.
At the trial before Alderson, B., at the London sittings after Michael-
mas term, it appeared that the plaintiff and defendant had executed, as
sureties for two persons of the names of William and Charles Carter, a
warrant of attorney dated 3d Septembei', 1841, given to one Price as a col-
lateral security for the due payment of a principal sum of £560, and in-
terest thereon, advanced by Price to the Carters on a mortgage of the
same date. Default having been made by the Carters in payment of the
interest, judgment was entered up on the warrant of attorney, and execution
issued thereon against the plaintiff for the amount of the principal money
and interest, which, together with the costs of the execution, was paid by
him ; and he now brought this action to recover from the defendant, as his
co-surety, one-half of the sums so paid. It was objected for the defendant,
first, that an action for money paid could not be maintained by a surety
against his co-surety ; secondly, that, at all events, the present defendant
was liable in that form of action only for one-fourth of the money paid by
the plaintiff; and, thirdly, that he was not liable for any part of the costs
of the execution. The learned ju^ge reserved these points, and a verdict
was taken for the plaintiff, damages 299^. 7s. 9d., with liberty to the de-
fendant to move to enter a nonsuit, or to reduce the damages.
Thesiger now moved accordingly. First, this was not money paid to
the use of the defendant, but rather for the use of the princijials, who
were the real debtors, and primarily liable. The co-surety can be made
liable only in a special action of assumpsit, founded on the implied con-
tract of indemnity. [Parke, B., referred to Davies v. Humphreys.^] The
question, whether the co-surety was liable as for money paid, was not
raised in that case. No doubt the principal is, because he is the party
originally liable. [Alderson, B. Because he authorizes the payment,
and the money is paid in bis discharge. Does not that equally apply to
1 6 M. & W. 153.
480 KEMP V. FINDEN. [CHAP. V.
the co-surety?] The contract between sureties seems to be raerely an
implied contract of indemnity. In Spencer v. Parry,^ where a tenant, by a
written agreement imder which he took the premises, engaged to pay
taxes which by law were due from the landlord, but made default, and the
landlord, having been obliged to pay, sued him for the amount, as money
paid to his use ; it was held, that, as the landlord was originally liable for
the taxes, and was exempted from them only by an agreement witli the
tenant, he should have declared specially on such agreement, a^d could not
recover on the indebitatus assumpsit. [Parke, B. — There the parties
were not jointly liable. Here, the payment by the plaintiff relieved the
co-surety as to one-half of the amount for which each of them was liable ;
therefore, as to so much, it was money paid to his use. In Cowell v. Ed-
wards,^ it was admitted, that the action for money paid would lie. Alder-
son, B. — The ground of the judgment in Spencer v. Parry is, that "the
plaintiff's payment relieved the defendant from no liability but what arose
from the contract between them." But where, two being jointly liable,
one of them pays money in discharge of thF^cbt^jtJ^_mjQii^^ paid to the
use of the other. Parke, B. — In the case of a guaranty, there js^nojm-
plied request to pay ; but where several are jointly liable, there is an
implied requesttoeach_of them to pay in dischargj_o£_eachji£-iI^e others.]
iFso^lhe'co-surety who has paid the whole debt may recover the whole
from the principal, even after he has recovered half from his co-surety.
In Thomas v. Cook,^ there was a special declaration. [Parke, B. — There
are no less than three cases in which it was taken for granted that money
paid will lie against a co-surety for contribution : Cowell v. Edwards,
Browne v. Lee,* and Davies v. Humphreys. In the last case, the author-
ities on this subject were very fully considered by the court, and it was
taken throughout to be perfectly well settled that the action for money
paid was maintainable. Lord Abinger, C. B. — _The_gencral principle is^
that, if a maji pays moncyJbr_another^ which he was liable_jo pay^ but in
\\'Tju'iriic~has_himself"luri^^ liemay maintain an action for money
pa^nT Parke, B. — In " Craythorne v. S^'inburne,^ the right of a surety to
call upon his co-surety for contribution is treated by Lord Eldon as
depending rather upon a principle of equity than upon contract, unless in
this sense, that a contract may be inferred upon the implied knowledge by
all persons of that principle.]
Secondly, there were here two principals and two sureties; the two
principals must be considered as liable for one half of the debt, and the
sureties for the other half The plaintiff, therefore, ought to be allowed to
recover only one fourth. [Lord Abinger, C. B. — It is just the same
thing as if William and Charles Carter were one person. Alderson, B. —
1 3 A. & E. 331 ; 4 N. & M. 770. « 2 Bos. & P. 268.
8 8 B. & C. 728; 3 Man. & Ry. 444. * 6 B. & C. C89; 9 D. & R. 700.
6 14 Vcs. 164.
SECT. II.] GOEPEL V. SWINDEN. 481
There are but two sureties. It is the same as if they were sureties for a
^•tuership firm ; surely each must contribute hismoictypaud uorarsmn
proportioned to the number of persons to whom the money was lent.
Parke, B. — Browne v. Lee is an authority to show that tlie phiuitTJTTs
entitled to recover one half, there bein"; only two sureties.]
Thirdly, although the co-surety may perhaps be liable for his proportion
of the costs of entering up the judgment, his liability does not extend to
the costs of executing it ; the plaintiff might and ought to have avoided
those costs by paying the money. [Parke, B. — They were costs incurred
in a proceeding to recover a debt for which, on default of the principals,
both the sureties were jointly liable; and, the plaintiff having paid the
whole costs, I see no reason why the defendant should not pay his'
proportion."!
He then applied for a new trial, on affidavits stating that the warrant
of attorney was attested by a person who, although he had been admitted
an attorney, had neglected for three years to take out his certificate, and
had not been re-admitted ; and that the defendant did not know this fact
until after the verdict ; and cited Wallace v. Brockley ^ to show that the
warrant of attorney was therefore void, and Gripper v. Bristow ^ to show
that this was an objection which was not waived by lapse of time or acts of
the parties. But the court refused on this ground to set aside the verdict,
saying, that the defendant should have made inquiry into the matter
sooner; that the plaintiff had a just claim against him for the sum re-
covered in this action, and that it would be very unjust now to permit the
defendant to defeat that claim, by setting aside the warrant of attorney on
an objection which might have been made long before.
Per Curiam, Rvle refused.
^ : GOEPEL v. SWINDEN. c^ /-^ / i^.^^%^
j;^ n^t^ iA-i^^ THE Queen's Bench, Hilary Term, 18*4. ^j.,^
P^ y^'^'ifx.-^ __ It ^^^j^^p^^^^ -^ J Dowling %■ Lowndes, 888.] //^ — "^
H4NCE had obtained a rule, calling upon the plaintiff to show cause why
1 the verdict obtained in this cause should not be set aside and a new trial
liad. The action was indehitatus assumpsit, for money paid by the plaintiff
to the use of the defendant, and due on an account stated. Plea, no7i as-
sumpsit. On the trial, which took place before thc^sherifl of ^Yorkshire, it
appeared that this was an action for contribution against a co-surety to a
promissory note, by another co-surety who had paid a part of the amount.
The promissory note was in the following form : —
1 5 Dowl. P. C. 695. 2 6 M. & W. 807.
VOL. II. — 31
482 GOEPEL V. SWINDEN. [CIIAP, V.
£200. Sheffield, 26th March, 1839.
On demand, we joiutly and severally, or any two or more of us, promise
to pay Mr. Jonathan Beardshaw, or order, the sum of two hundred pounds,
with lawful interest for the same, for value received, as witness our hands.
John Youle, Jun.
Witness,
George Kitching.
George Smith. Y \/ 5^ James Spranger Goepel.
"^ '^ William Gray.
James Swinden.
The plaintiff's particulars of demand stated that " the action was brought
to recover the sum of lU. lis. 2d., being the proportion due from the de-
fendant to the plaintiff of the sum of 4G/. Gs. 4^cZ., paid by the plaintiff as
follows : Plaintiff, defendant, one William Gray, and one George Kitching,
became sureties to a promissory note for one John Youle, the younger, and
plaintiff and the said William Gray were forced to pay, and did, as such
sureties for the said John Youle the youngei", pay the sum of 92/. 12s. OcZ.,
ni equal proportions on the said note ; tlie plaintiff therefore seeks to rc-
cover the fourth part of the said sum of 46/. Gg. i\d., from ^e defendant
as one of the sureties." It also appeared that the following were the facts
of the case. That one John Youle, the younger, in order to obtain an
advance of 200/., procured the plaintiff and defendant, and two other per-
sons, to sign a promissory note for that amount, as co-sureties. That at
that time, plaintiff owed Youle the sum of 92/. \0s., and that it was agre_ed
i /between them, in order to induce plaintiff to sign the note, that plninf.iff
I should retain the said sum in his hands as a security for his Jjajdlity as
I co-surety on the note. And that he had since paid 4G/. G.s-. 4^(^. upon the
( ^ — ^ . promissory note. It was contended, on the part of the defendant, that as
; „ Iplaintilf still retained the sum of 92/. 10s. in his hands, belonging to the
'^'''~~-''-~- /»'>— sy;/|said Youle, in pursuance of the above-mentioned agreement, he had suf-
-V^, i/ fered no loss upon the promissory note, and, therefore, was not entitled to
/ maintain the action against the defendant. The midor sheriff, before whom
it was tried, was however of a different opinion, and directed the jury ac-
cordingly, who returned a verdict for the plaintiff. Against this ruling of
the under sheriff this motion was now made. And it was submitted, the
contract between the plaintiff and the defendant was one of indemnity, and
that the plaintiff was not damnified ; and Davies v. Humphreys ^ was re-
ferred to, where the cases are collected on the subject.
Pashley showed cause.
I lance, in support of the rule.
Williams, J. This was an action of assumpsit for money paid to the
use of the defendant, and on an account stated, to which the defendant has
pleaded the general issue. On these pleadings, the question is, whether the
1 G M. & W. 153.
SECT. II.] BATARD V. HAWES. 483
jilaiiitiir has paid money under such circumstances as to create an express,
or raise an implied, assumpsit on the part of tlie defendant 1 There cer-
taiuly was no express promise jon the part of the defendant, nor do I think
that one can be implied ; for although the plaintilTdid pay the moncynTf
question, he did^ot pay it out of liis own funds, but out of the money of
Youle, the principal, which he retained in his haiids^nd which he wa^
entitled to apply to this purpose. Tlie law, thercfurc, cannot iuii>ly an
assumpsit where the plaintiff has not paid lus own money, but that of
another party. That being so, the defence was admissible under the gene-
ral issue, and in my opinion, offered a sufficient answer to the present ac-
tion. I think, therefore, that the under sheriff was wrong in the mode he
left the case to the jury, and the rule for a new trial must, consequently,
be made absolute. Jtule absolute.
BATAMD V. HAWES.
In the Queen's Bench, Trinity Term, 1853.
[Reported in 2 Ellis ^ Blackburn, 287.]
Declaration for money paid. Pleas : 1. Except as to 721. 19s. Gd.,
Never indebted. 2. As to 721. 19s. 6d., payment into court. The plaintiff
joined issue on the first plea, and took the money out of court on the
second.
On the trial, before Crompton, J., at the Westminster sittings in Hilary
term last, it appeared that the plaintiff, the defendant, and several other
persons, were members of a provisional committee ; and that an engineer
of the name of Baley had been employed, in respect of the scheme, in 1847,
by some of the members. Baley sued the plaintiff alone, and recovered
from him 753^. 18s. 7d., which was paid by plaintiff in 1850. The action
was for contribution. The plaintiff's case was that the members of the
provisional committee, who had originally made themselves liable to Mr.
Baley, were five and no more ; viz., the plaintiff, the defendant, and three
persons named Schneider, Douglas (defendant in the other cause), and
Hilliard, all still alive. The plaintiff commenced actions against the four
persons who, according to his case, were jointly liable with him, claiming
from each one-fifth of the amount which he alone had paid to Baley.
Schneider, before the trial of this action, compromised the action against
him by paying 100^. The other two actions were still pending. The de-
fendant's case was that the original employers of Mr. Baley were more than
the five persons above named. There was evidence which left it somewhat
m doubt how many co-contractors there were : the jury found, and it was
not disputed that on the evidence they were justified in finding, that the
.-7^
484 BATAKD V. HAWES. [CIIAl'. V.
origincol employers consisted of the plaintiff, the four persons whom he sued,
and also seven other members of the provisional committee, of whom two
died after the debt was contracted, but before the plaintiff's payment iu
1850. On this finding, the plaintiff's counsel contended that the plaintiff
was entitled to one-tenth part of the debt, as the number of persons liable
at law to ])aley at the time the payment was made was ten. A tenth part
of the debt was 75/. 7s. 10c/. ; and, as the sum paid into court was 72/. 19s.
Gd., the plaintiff was on this supposition entitled to a verdict for 2/. 8s. id.
The defendant's counsel contended that the plaintiff was entitled only to
one-twelfth part of the debt paid, the original co-contractors being twelve ;
and, as one-twelfth was 62/. 16s. 6c/., the payment into court was, on this
supposition, more than sufficient. But, supposing that the right sum was
75/. 7s. 10c/., as contended for by the plaintiff, the defendant's counsel con-
tended that Schneider had, on that supposition, overpaid the plaintiff 24/.
12s. 2c/., and that the defendant was entitled to the benefit of one-ninth of
that overpayment, or 21. lis. 8c/. ; which would turn the scale in his favor.
The learned judge directed a verdict for the plaintiffs for 21. 8s. 4c/., with
leave to move to enter a verdict for the defendant on either point. He
said he would amend by adding a plea of payment, if necessary to raise the
last point ; but the plaintiff's counsel did not reciuire the amendment to
be made.
Crowder, in the same term, obtained a rule nisi pursuant to the leave
reserved.
Bramwell and Prentice, showed cause.
Crowder and Ogle, contra.
Lord Camrbell, C. J., in this term (May 31st), delivered the judgment
of the court.
It appeared in this case that the plaintiff, the defendant, and several
other persons, had jointly employed Mr. Baley, an engineer, to make plans
and sections, and to do engineering work, preparatory to bringing a bill for
a railway before Parliament. The plaintiff was sued by Baley for the
amount of his bill, and was obliged to pay him ; and he then brought the
present action, to recover from the defendant his share of contribution.
The jury found, at the trial, that there were twelve persons, including
the plaintiff and the defendant, who were parties to the original employ-
ment of and contract with Baley ; and that two of those persons had died
before the payment by the plaintiff to Baley. The defendant liad paid into
court an amount sufficient to cover one-twelfth of the amount of the pay-
ment to Baley, but not sufficient to cover one-tenth of that amount. And
the question thus arose for our consideration, "Whether the amount to be
recovered by the plaintiff under the above circumstances was to be calcu-
lated according to the number of original joint contractors, or according to
the number of those who were alive when the payment was made, and
against whom the right of the creditor to sue at law had survived.
SECT. II.] BATARD V. IIAWES. 485
The point appeared to us to be one which would admit of considerable
doubt : and we took time to consider our judgment.
If the right to contribution is to be considered as arising merely from
the fact of payment being made, so as to relieve a party jointly liable from
legal liability, we should have to look to the number of co-contractors
actually liable at law at the time of making the payment which relieved
them from liability. But we think that it is not merely the legal liability
to the creditor at the time of the payment that we are to regard, but tliat
we must look to the implied engagement of each, to pay his share, arising
out of the joint contract when entered into. To support the action for
money paid, it is necessary that there should be a request from the de-
fendant to pay, either express or implied by law. "Where one party enters
into a legal liability for and at the request of another, a request to pay the
money is implied by law from the fact of entering into the engagement ;
and, if the debt or liability is incurred entirely for a principal, the surety,
being liable for him at his request, and being obliged to pay, is held at law
to pay on an implied request from the principal that he will do so. In a
joint contract for the benefit of all, each takes upon himself the liability to
pay the whole debt, consisting of the shares which each co-contractor ought
to pay as between themselves ; and each, in effect, takes upon himself a
liability for each to the extent of the amount of his share. Each, therefore,
may be considered as becoming liable for the share of each one of his co-
contractors at the request of such co-contractor ; and, on being obliged to
pay such share, a request to pay it is implied as against the party who
ought to have paid it, and who is relieved from paying what, as between
himself and the party who pays, he ought himself to have paid according
to the original arrangement. If the original arrangement was incon-
sistent with the fact that each was to pay his share, no action for
such contribution could be maintained. Thus, if, by arrangement be-
tween themselves, one of the joint contractors, though liable to the
creditor, was not to be liable to pay any portion of the debt, it is clear
that no action could be maintained against him ; though, if the relief
from the legal liability were alone looked to, it would follow that he
was liable to contribute. So, where one surety enters into an engage-
ment of suretyship at the request of his co-surety, it has been held
that the co-surety, paying the whole, can maintain no action ; Turner v.
Davies.^
Our opinion is in conformity with the cases in which it has been held
that a co-surety is not liable at law to a greater extent than his share, with
reference to the original number of sureties, notwithstanding the insolvency
of one or more of the co-contractoi's ; and also agrees with the rule laid
down by Mr. Justice Bayley, in Browne v. Lee,^ where he says : " T think,
that at law, one of three co-sureties can only recover against any one of
1 2 Esp. N. P. C. 479. 2 ^ B. & C. 697.
486 BATARD V. HAWES. [CIIAP. V.
the others an aliquot proportion of the money paid, regard being had to the
number of sureties."
It was urged before us, by Mr. Bramwell, that, if there were an imphed
original arrangement between the co-contractors, an action ought to be
maintainable on such promise against the executors of a deceased co-
contractor; and he said that there being no instance of such an action
•went strongly to show that there was no such original engagement. It
might be said, on the other hand, that there is no instance in the books of
the party who has paid recovering more than an aliquot proportion with
reference to the original number of co-contractors, by reason of the death
of one or more of them. But it is a more satisfactory answer, that there
is vei-y strong authority for holding that such an action will lie against
executors.
In Ashby v. Ashby,^ those very learned judges, Mr. Justice Bayley and
Mr. Justice Littledale rely on such an action lying against executors as
the gi'ound of their judgments on the point directly before them. Mr.
Justice Bayley says;'^ "To put a plain case, suppose two persons are
jointly bound as sureties, one dies, the survivor is sued and is obliged to
pay the whole debt. If the deceased had been living, the survivor might
have sued him for contribution in an action for money paid, and I think he
is entitled to sue the executor of the deceased for money paid to his use as
executor." And Mr. Justice Littledale says : ^ " Suppose that a plaintiff
had become bound jointly with a testator, and after his death had paid the
whole debt ; I should think that an action against the executor for money
paid to his use might be supported, and that the plaintiff would be entitled
to judgment de bonis testatoris." See also 2 Williams on Executors, 1st
Ed., 1088.* Such an action against executors can only be supported on
the ground of the existence of such an implied original engagement as we
have adverted to, which, being made in the testator's time, would bind the
executors ; and such an engagement, if implied, would form a good legal
ground for supporting the action of money paid.
We were pressed also with the dictum of Lord Eldon in Craythorne v.
Swinburne,® referred to by Parke, B., in Kemp v. Finden,^ and in Lavios v.
Humphreys,' as to the action of contribution being founded rather upon a
principle of equity than upon contract. The expressions of Lord Eldok,
however, will be found to relate rather to the origin of the implied con-
tract than to the time at which it is to be taken to be made. He says,
" and I think, that right is properl}' enough stated as depending rather
upon a principle of etpiity than upon contract : unless in this sense ; that,
the principle of equity being in its operation established, a contract may be
inferred upon the implied knowledge of that principle by all persons, and it
1 7 B. & C. 444. 2 7 B. & C. 449. ^ 7 B. k. C. 451.
* Vol. II. p. 1509, in 4th Edition; Tart IV. I'.k. II. Ch. 2, § 1.
•'• 14 Vcs. 164. « 1-2 M. & \V.121. 424. ' C M. & W. 153,108.
SECT. II.] REYNOLDS V. WHEELER. 487
must be upon such a ground, of implied assumpsit, tliat in modern times
■courts of law have assumed a jurisdiction upon tliis subject." This pas-
sage must be taken to admit the existence of an implied contract, and docs
not appear to us to be inconsistent with, or to outweigh, the clear expres-
sion of the opinion of the judges in Ashby v. Ashby.
Several inconveniences and difficulties were pointed out on both sides, in
the course of the argument, as likely to arise from the adoption of each of
the rules contended for : but we think that the rule suggested by the de-
fendant's counsel will be found much more simple, and less liable to the
inconveniences pointed out, than that contended for on behalf of the
plaintiff.
After entertaining considerable doubt on the subject, we have come to
the conclusion that the rule most in conformity with the authorities, the
principles of law, and the convenience of the case, is to look to the number
of original co-contractors for the purpose of determining the aliquot part
which each contributor is to pay. And, the defendant in the present case
having paid into court a sum sufficient to cover the amount due in propor-
tion to the number of the original contractors, the rule for entering the
verdict for the defendant must be made absolute.
Our decision upon this point renders it unnecessary to say anything
upon the question raised as to the right of the defendant to credit for
the over-payment by one of the co-contractors.
Hule absolute.
REYNOLDS v. WHEELER.
In the Common Pleas, June 10, 186L
[Reported in 10 Common Bench Reports, New Series, 561.]
One Cheeseman, a contractor at Brighton, being in want of money,
applied to Reynolds, the plaintiff, to accommodate him with his acceptance
for 150^. ; and upon his consenting to do so, a bill for that amount was
drawn by Cheeseman upon and accepted by Reynolds. Cheeseman's
bankers declining to discount the bill without having another name to it,
Wheeler, at Cheeseman's request, indorsed it. On its arriving at maturity,
Cheeseman prevailed upon the holders to renew the bill ; and the new bifT"
was_ilrawn by Reynolds upon Cheeseman, and indorsed Ciy Wheelen—
Reynolds, hav|ng been compelled to pay this second bill, brougITr~thTS —
action against Wheeler to recover contribution, and at the trial before
WiGHTMAN, J., at the last assizes for Sussex, obtained a verdict torTSTTj;
leave being reserved to the defendant to move to enter a verdict for him or
a nonsuit, if the court should be of opinion that, there being no joint lia-
488 REYNOLDS V. WHEELER. [CHAr. V.
bility in the plaintiff and the defendant, there was no imphed Habihty to
contribution.
Bovill, Q. C, in Easter term last, obtained a rule nisi accordingly.
Tompson Chitty now showed cause.
Bovill, Q. C, in support of the rule.
Erle, C. J. I am of opinion that this rule should be discharged. The
substance of the transaction is this : Cheeseman was in want of money, and
applied to Reynolds and to Wheeler to lend him their names in order to
obtain it. If the money had been raised by the joint and several note or
bond of the three, it could not for a moment have been contended that
Reynolds, paying the whole, would not have been entitled to call upon
AVheeler for contribution. The machinery adopted here was the drawing
of a bill by Cheeseman upon Reynolds, and the indorsement of it by
Wheeler. As between these three parties and the holders, the acceptor
would be primarily liable ; and on his f\iilure to pay, recourse would bo
had to the drawer and the indorser. But their relation to the holder has
lino bearing on their relation to one another. Reynolds and Wheeler each
became RuretyJor_the__same debt or liability of their principal, Cheeseman.
/^"h! Reynolds, therefbrei_cLearly had_a right _to call_ iipon Wheeler for
1 1 contribution.
^ Williams, J. I am of the same opinion. There was evidence from
which a promise on the part of the defendant to pay to the plaintiff con-
tribution in respect of what he might have been called upon to pay on
Cheeseman's account might be implied. There is some little difficulty in
understanding how a contract for contribution can be implied under such
circumstances as these. Parke, B., deals with that matter in the case of
Kemp V. Finden,^ where he says : " In Craythorne v. Swinburne ^ the right
of a surety to call upon his co-surety for contribution is treated by Lord
Eldon as depending rather upon a principle of equity than upon contract,
unless in this sense, that a contract may be inferred upon the implied^
knowledge by all persons of that principle." That has been followed by a
host of authorities, which have established the principle that where two or
more are sureties for the debt of another, and one of them has been called
iipfjn to pay and has paid more than his share, he may sue his co-sureties
for reimbursement, to the extent of their respective proportions! If the rela-
Tion of surety subsists, he is entitled to contribution, and we are entitled to
disregard the form of the instrument. The recent decisions as to suretyship
sIkjw that not only in actions like tlie present, but also in cases where the
question is whether the surety has been discharged or not, the form of the
instrument may be wholly disregarded.
The rest of the court concurring, Rule disc/utrged.
1 The OT)positc rule prcvaila generally in tlif United .States. 2 Ames, Ciis. 15. & N.
682, n. 4. - Ki.. JThT'^'S''^.
2 12 M. & W. 421, 424. ' '
SECT. II.] Ex parte SNOWDON. In re SNOWDON. 489
Ex parte SNOWDON. In re SNOWDON.
In the Court of Appeal, March 17, 1881.
{Reported in Law Reports, 17 Chancery Division, 44.]
This was an appeal by Thomas Snowdon from an adjudication of bank-
ruptcy made against him by Mr. Registrar Pepys, acting as Chief Judge in
Bankruptcy,
On the 9th of December, 1870, Snowdon, John Hall, and Robert Hall,
executed a joint and several bond for £2000 in favor of the NatronaTTro-
vincial Bank of England. The bond contained a declaratloirthaFSnowdoir
and John Hall were respectively the sureties to the bank for the payment
of any moneys which then were or might thereafter become due to the
bank from Robert Hall, and there was a provision limiting the liability of
the sureties to £1000 for principal moneys, in addition to~TnFprpstj cnsfg]^
commission, and other lawful charges. In January, 1879, the creditors of
Robert Hall passed a resolution for the liquidation of his affairs by arrange-
ment. At this time there was due from him to the bank £1000 for prin-
cipal and also an arrear of interest. In September, 1879, John Hall upon
the demand of the bank paid them the sum of £5412s. Id., which was half
"the amount due to them by Robert Hall. On the 7th of September, 1880,
John Hall issued a debtor's summons against Snowdon for £270 11*. O^d.,
half of the £541 2s. Id. Snowdon committed an act of bankruptcy by not
complying with the summons, and on the 23d of December, 1880, John
Hall presented a bankruptcy petition against Snowdon. Snowdon had not
been called on by tbp hnnW tn pny ^riyfj^JTTryjjnn th^ bond, but there was
nothing to show that the bank had released hini. The Registrar made an
adjudication of bankruptcy. He was of opinion that, according to Cray-
thome V. Swinburne,^ when a surety is called on by the creditor to pay
any part of the debt, he has a right in equity to call upon his co-surety for
contribution.
Snowdon appealed.
Norton Smith, Q. C, and E. Cooper Willis, for the appellant.
J. E. LinMater, for the petitioning creditor.
James, L. J. I think that in this case there is no sufficient petitioning
creditor's debt. There is no '' legal debt " and there is no " equitable
debt," there is no debt so far as either law or equity is concerned sufficient
for the purpose of adjudication. The right of a surety who has paid the
creditor is to have contribution from his co-sureties, that is to say, all
the co-sureties must bear the whole burden of the debt equally. It is
1 14 Ves. 160.
490 Ex 2Jartc sxowdon. Li re snowdon. [chap. v.
impossible to say, when one surety has paid a part of the debt, until the
whole debt is paid iu respect of which all the co-sureties are jointly liable,
wliat the right to contribution is. It is suggested that a man might be a
surety for £10,000, and upon paying the creditor £100 in respect of that
liability he might file a bankruptcy petition against his co-surety in respect
of that £100. There must be an actual legally ascertained debt before it
can be made the ground of proceedings in bankrujjtcy. The co-surety can-
not knovy -w-hnt is tbn dobt due to him by liis co-surety until he knows what
has l)eeu done in respect of tbe resiclue of the debt for which he is equally
lialile. I believe the pro])cr course when a surety is called upon to pay a
])art of the whole debt for which he is liable would be to bring an action
against his co-sureties to compel them to contribute to pay the d''bt to thq
creditor, just as he would be entitled to call on them for contribution if he
had been sued by the creditor, asking that he should be indemnified by
his co-sureties against paying the whole debt, or whatever risk he ran.
I]Tut7~until the "wholcTTlebt has been paid by one surety, or so nuich of
it as to make it clear that, as between himself and his co-sureties, he
has paid all that he ever can be called upon to pay, there can be no
equitable debt from them to him iu respect of it. There is nothing
ascertained as a debt which would give him a right to proceed against his
co-sureties.
Brett, L. J. When the parties to a suretyship agreement have put into
their agi-eement a limit beyond which they will not be liable, each of them
is liable to pay to the principal creditor the whole amount for which he has
made himself liable. They are only liable up to the limit agreed upon.
If the debt due to the creditor does not amount to the sum for which they
have made themselves liable by their bond, they are only liable to pay the
amount of the debt and no more. If the debt exceeds the sum to which
they have limited their liability in their own bond, their liability is only to
pay the amount mentioned in their own bond. That is the limit up to
which they are sureties. Upon that the first question to be determined is
the amount of the liability between the original debtor and creditor. When
the amount of the debt between the original creditor and debtor is ascer-
tained, it may be that the sum which they as sureties are liable to pay is
the whole of that amount, but, as between themselves (if there are only
two sureties), each of them is only bound to pay a half. When does the
claim of the one surety against the other for contril)ution arise ? ItJ^i npf.
when he has paid only his own half of the amount for which he originally
became surety, l)ut his claim ai'iscs when he has ]>ai(l more tliau half ol the"
whole <>i till' (lelit due to the creditor. That is the doctrine whidi was laid
down in Davies v. Hiuiipjircys,^ and it was a doctrine taken from the courts
f)f equity, and adopted l»y the courts of law. The doctrine laid down in
Davies v. Humphreys has never been questioned, and it seems to be
1 G M. & W. 153, 168.
J
SECT. II.] Ex parte snowdon. In re SNOWDON. 491
absolutely in accordance with what Lord Eldox said in Ex j^nrte GifTord/
upon the authority of which Davies v. Humphreys was decided. There is
nothing to the conti-aiy in the other cases which have been cited, and the
doctrine of Davies v. Humphreys remains untouched, that a surety has no
claim against his co-sureties until he has paid moi*e than his share of the
debt due to the principal creditor. This state of things has not arisen in
the present case, and therefore there is no claim by the petitioning creditor
against his co-surety for a liqi^idated sum, and consequently there is no
sufficient petitioning creditor's debt.
Cotton, L. J. I am of the same opinion. WhatweJm;;e_to_de£idiLJSj_^
whether a surety who has only paid his proportion of the debtjbr wliich
"1)0 jsli;ible,"~"can _pr£sgnt a bankruptcy petition against his co-surety for
contribution. In my opinion he cannot. To entitle him To'contribution
Tris necessary that he should pay more than his proportion of the sum
secure"d" by the bond by which he became surety, with a limitation as to_
the amount of hisliability. If he has paid more than his proportioti (in a
case where there are two sureties, more than a moiety of the debt due),
then he can call upon his co-surety for contribution, although the amount
may be nothing like the amount of the debt due by the principal debtoi*.
jJere the surety has been called upon to pay half the amount due under the
bond, and if he has only paid his half, T cnrmnt^seejinw^hfi p.nn require con-
tribution from his co-surety, who is equally liable to pay the other half of
tEe^debtto the creditor. Under such circulnstances I cannot see that any
equity can arise against the co-surety, and in this case, in my opinion, no
equity does arise against the co-surety while the creditor can still call upon
him for the other half of the principal debt. None of the cases which have
been cited conflict with this. In Lawson v. Wright,^ the co-sureties had
guaranteed a liability of £320, and the only sum due by the debtor at the
time of payment was £100. The plaintiff claimed contribution from his
co-surety, but he had paid more than his proportion of the only debt which
was due to the creditor, and for which he had agreed to become surety.
Therefore it was held that he could in equity claim contribution, because
he had paid more than his just proportion of the debt due.
James, L. J. The adjudication will be annulled, with costs allowed here
and in the court below.
1 6 Ves. 805. 2 i Cox, 275.
^^^
^ 402 MERRYWEATIIIJR l?. NIXAN.
^" '^ meMyweather v. NixMr*^
In the King's Bench, April 13, 1799.
[Reported tn 8 Term Reports, 186.]
One Starkey brought an action on the case against the present plaintiff
and defendant for an injury done by them to his reversionaiy estate in a
mill, in which was included a count in trover for the machinery belonging
to the mill ; and having recovered 840^. he levied the whole on the present
plaintiff, who thereupon brought this action against the defendant for a
contribution of a moiety, as for so much money paid to his use.
At the trial before Mr. Baron Thomson at the last York assizes the
plaintiff was nonsuited, the learned judge being of opinion that no contri-
butioncould by IawT)e claimed as between joint3rong:jiflej:a; and conse-
quently this action upon an implied assumpsit could not be maintained on
the mere ground that the plaintiff had alone paid the money which had
been recovered against him and the other defendant in that action.
Chambre now moved to set aside the nonsuit ; contending that, as the
former plaintiff had recovered against both these parties, both of them
ought to contribute to pay the damages. But
Lord Kenyon, C. J., said there could be no doubt but that the nonsuit
was proper ; that he had never before heard of such an action having been
"lirought where the former recovery was for a tort. That the distinction
was clear between this case and that of a joint judgment against several
"defendants in an action of assumpsit. And that this decision would not
aHect cases ^f indemnity, where one man employed another to do acts, not^
irFrrH:^^Trrnn"thems"eIveSj for thp piirposfi, of asserting a right.^
Rule refused.
The case of Philips v. Biggs,' was mentioned by Law, for the defendant,
as the only case to be found in the books in which the point had been
raised ; but it did not appear what was ultimately done upon it.
1 In such a case one is entitled to indemnity. Adamson v. Jarvis, 4 Bing. 66 ; Betts
V. Gibbins, 2 A. & E. 57 ; Dugdale and Others v. Levering, L. R. 10 C. P. 196. — Ed.
2 Hardr. 164.
SECT. II.]
WOOLEY V. BATTE.
493
WOOLEY tj. BATTE.
At Nisi Prius, before Park, J., March 10, 1826.
[Reported in 2 Carrington <J- Payne, 417.]
Assumpsit for contribution. Plea, general issue. Tlie plaintiff and de-
fendant were joint proprietors of a stage-coach ; and damages had been
recovered in an action on the case, against the former only, for anjivjiiry
(Tone to JTrs. Jeavons, a passenger, by reason of tlie neirlitjencc of the coach-
mau. The plaintiff_had paid the whole of the damagesand costs, and
Trought the present action to recover half the amount from the defendant
as his partner.
For the plaintiff, an examined copy of the judgment against him at the
suit of the husband of Mrs. Jeavons, was put in. The declaration was in
case, and stated the injury to have arisen from the negligence of the present
plaintiff and his servants (in the usual form). It was also proved, that
the plaintiff paid the amount of damages and costs in that action, amount-
ing to 176^., under an execution ; that the plaintiff and the defendant were
partners in the stage-coach ; and that the plaintiff was not personally
present when the accident happened.
Jervis for the defendant contended, that as the action brought against
the plaintiff was an action on the case for negligence, the plaintiff and de-
fendant were joint tort-feasors ; and, therefore, one only being sued, he
could not recover contribution from the other ; and he cited Merry weather
V. Nixan.^
Campbell for the plaintiff. No doubt the case of Merry weather v. Nixan ^
is good law, and one tort-feasor sued alone caimot recover contribution from
another, who was a joint tort-feasor with him ; jiiit bere it is prnvpHj thnt.
there was_ no personal fault in the plaintiff. The declaration of Jeavons
against the present plaintiff might, with equal propriety, have been in as-
sumpsitjin_which case, the present_ plaintiff mjght clearly have recovered
COT>tribution ; and it can hardly be contended, that the plaintiff should be
deprived of his contribution by Mr. Jeavons's pleader drawing his declara-
tion in one form instead of another.
Park, J. I think the plaintiff is entitled to recover.
Verdict for the plaintiff'. Damages, S8l.
1 8 T. R. 186.
/iri^'ct ^/=€X'i^A-'^c^ ^-^ ^^i^<-/Y ^«**---— '^^-^'^^*<- /*^-c^ (^.-^-t^Z^xfer.
GEOEGE F. BAILEY ^^ Another, Executors^ THOMAS BUSSING, i^^
In the Supreme Court of Errors of Connecticut, October Term, 1859.
[Reiiorttd i« 28 Connecticut Reports, 455]
Assumpsit. The plaintiffs sued as executors of one Aaron Tumier. In
1852, a judgment was recovered against Turner, the defendant Bussing, y»-4
and one Whitlock, for an injury to a person travelling on the highway, ^
caused by the negligent management of a public stage in the running of
which the defendants were alleged to be jointly interested. The defendant,
Bussing, was the driver of the stage, and the injury was caused by his neg- , ,
1 igence. Turner paid the amount of the judgment, and the present suit y /u
was brought by his executors to recover one-third of tlic amount so paid
from Bussing, On the trial before the superior court, on the general issu6/^^
closed toThe court, the plaintiffs introduced the record of the judgment, /
with parol evidence of the character of the injury for which it was recoy-T*^*"
ered and of the relation of the defendant and of Turner to it, and proved //y
the payment of $1300 by Turner in satisfaction of the judgment; and
upon this evidence claimed the right to recover. The defendant claimedyT^
/ that there could be no recovery in the suit, because Turner and the de-/
fendant were both wrong-doers, between whom there could be no legal V^ ,
claim for contribution, and on the ground that, if the defendant was liable
I at all, it would be only in case and not in assumpsit. The court rendere(}^fec#-i
judgment for the plaintiff, and the defendant moved for a new trial.
Dutto7i and Brewster, with whom was Averill, in support of the motion.
Hawley and Taylor, contra. ■ 11/
Ellsworth, J. This is an action of assumpsit, to compel a contribution^*^*
for money paid on a judgment against three defendants, Whitlock, Aaron
Turner, the plaintiffs' testator, and Bussing, the present defendant. That^^^^
there was a judgment rendered by the superior court for Fairfield County /t/^
at its February term in 1852, against AVhitlock, Turner, and Bussing, and*^
that Turner was compelled to pay, and did pay, on the execution, the whole /^^ ^
amount of the judgment, or such a sum as was received in satisfaction of /
the judgment, is admitted or not denied. This evidence, it is said, would^^
in law prima facie entitle the plaintiffs to recover one-third of the sum "
paid from the defendant, and that there must be such recovery unless there
is something peculiar to the present case which saves it from the application
of the principle ordinaril}' applicable to such cases.
If this judgment had been recovered on a joint contract or joint liability
of any kind sounding in contract, the production of the judgment, and
proof of payment by Turner of the whole sum, would of course show a
good cause of action in the plaintiffs for the recovery from Bussing of one-
{^fi^^i
H-
SECT. II.] BAILEY V. BUSSING. 495
third the amount paid. Is tlicre anything on this record which, wlieu
taken in connection with the evidence received in the case, distin<'uishes
this case from tlie one just snjjposed ?
The defendant insists that that judgment was rendered in an action of
tort, and that in that class of cases there is to be no contribution among
wrong-doers ; the maxim of law being, as he claims, that among tort-feasors
there is no contribution. To meet this objection, the plaintifis offered evi-
dence, and we think with entire propriety, to prove that, while the maxim
might be true as a general rule, the case on trial belonged to a class of
cases to which it had no application, for that here there was no personal
wrong, not even negligence in a culpable sense, on the part of Turner, and
that he had been found guilty only by implication, or legal inference from
a supposed relation to Bussing, the actual wrong-doer, through whose
neglect the other two defendants had been subjected by the jury.
No objection was made to the reception of the evidence, and we think
none could jjroperly have been made. The court received it, and found the
fjxct to be as claimed by the plaintiffs, that Turner was not present, and
had no participation in the negligent conduct of the driver of the stage
which caused the injury to Mrs. Haight, notwithstanding that, under the
particular charge of the court in that case, the jury found that Turner was,
in a legal sense, implicated and liable, even though there was not any
actual wTong on his part.
"What then is this case 1 And what is the true doctrine of the law as to
contribution, or, as it may be, full indemnity, where there has been no
illegal act or conduct on the part of him who seeks for a contribution'?
And first, let ys rjp^ij^rk. that we apprehend that there can be no objec-
tion among the parties themselves, to proof aliunde that a joint jadgment
in an action on the case like the present, w\as for the defanlf. ny ppglppf pf
jpneof the"detendants~only. This fact appears not unfrequently on the face
of the record itself^lis when the master is sued for the negligence of his
servant, but if the form of the action does not show^ it, and an inquiry is
necessary to prove it, we know of no rule of evidence which precludes or
forbids such inquiry. Such is the constant practice in actions on con-
tracts, whatever be the form of the declaration or judgment, and the same
course must be proper in this instance. It must be a very stubborn rule
of law to raise in our minds any doubt upon the subject.
The reason assigned in the books for denying contribution among_trcs-
passers is, that no right of action can be based on n, vinln,ti(in pf Inw thivt
is, where the act is known to be such or is apparently of that character. A
guilty trespasser it is said cannot be allowed to appeal to' the law for an
indemnity, for he has placed himself without its pale by contemning it,
and must ask in vain for its interposition in his behalf If, however, he_
was innocent of an illegal purpose, ignorant of the nature of tlic act, wliich _
was apparently correct and proper, the rule will change with its reason, and
496 BAILEY V. BUSSING. [CIIAP. V.
he may then have an iudemnity, or as the case may be a contribution's a
servant yielding obedience to the command of his master, or an agent to
his principal in what appears to be right, an assistant rendering aid to a
sheriflF in the execution of process, or common caiTiers, to whom is com-
mitted and who innocently carry away property which has been stolen from
the owner. Indemnity, or contribution to the full amount, is allowable
here, and it can be enforced by action, if refused, whether the person seek-
ing it has been subjected in case or assumpsit to the damages of which he
complains. And since in many instances the person injured has an elec-
tion to sue in case or assumpsit, it is not possible that the form of action in
which the party seeking for indemnity or contribution has been subjected,
should be the criterion of his right to call for it. One partner or one joint
proprietor may do that which will subject all the rest in case or assumpsit,
as the fact may be, but there may be a right to contribution notwithstand-
ing, and in some cases, if indeed the present is not one of them, a full in-
demnity may be justly demanded from the person doing the wrong, by the
other partners whom he has involved in loss by his wrongful act. The
form of action then is not the criterion. We must look further. We
must look for personal participation, personal culpability, personal knowl-
edge. If we do not find these circumstances, but perceive only a liability
in the eye of the law, growing out of a mere relation to th£ perpetrator of
the wrong, tbe maxmi of law that there "is no contribution among wrong-
doers IS not to be applied. Indeed we think this maxim too much broken
in upon at this day to be called with propriety a rule of law, so many are
the exceptions to it, as in the cases of master and servant, principal and
agent, partners, joint operators, carriers, and the like.
One of the earliest cases where the maxim is recognized is ]\Ierryweather
V. Nixan,^ where the plaintiff was the active wrong-doer. Having paid the
whole damage, he sought for a contribution. It was denied him, and right-
fully so, upon the strength of the maxim refen-ed to. But even here, lest a
wrong inference should be drawn from the decision. Lord Kenton, C. J.,
says : " This decision will not affect cases of indemnity where one man em-
ployed another to do an act not unlawful in itself." The earlier case of
Philips V. Biggs, '^ in which this point was raised, was never decided. la
Wooley V. Batte,® before Justice Parke, one stage proprietor had been sued
alone in case for an injury to a passenger through the neglect of the coach-
man, and, having paid the damages, he brought assumpsit for a contribu-
tion, and recovered on the ground that in him there was no personal fault.
In Adamson v. Jarvis,* suit was brought for indemnity by an auctioneer
against his employer, he having sold goods which did not belong to his
employer, and for which he had been compelled to pay upon a judgment
recovered against him by the owner, being himself innocent. The court
1 8 T. R. 18C. 2 Hardres, 164.
8 2 Car. & P. 417. * 4 BiiiL'. 66.
SECT. II.] BAILEY V. BUSSING. 497
held that he could recover. Best, C. J., said : " From the iucliuation of
the court in the case in Hardres and from the concluding part of Lord
Kenyon's judgment in Merry weather v. Nixan, and from reason, justice, and
sound policy, the rule that wrong-doers cannot have redress or contribution
against each other, is confined to cases where the person seeking redress
must be presumed to have known that he was doing an unlawful act. In
Betts V. Gibbins,^ Lord DenmAx\, C. J., says: "The general rule is, that
between wrong-doers there is neither indemnity nor contribution. The ex-
ception is where the act is not clearly illegal in itself. If they were acting
bona fide, I cannot conceive what rule there can be to hinder the defendant
from being liable for the risk." Again, speaking of Battersey's case,^ he
says that it shows that there may be an indemnity between wrong-doers,
unless it appears that they have been jointly concerned in doing what the
party complaining knew to be illegal. In Story on Partnership, § 220, the
learned commentator says, speaking of the maxim that there is no contribu-
tion among wrong-doers, " but the rule is to be understood according to its
true sense and meaning, which is where the tort is a known, meditated
wrong, and not where the party is acting under the supposition of the in-
nocence and propriety of the act, and the tort is one by construction or in-
ference of law. In the latter case, although not in the former, there may
be and properly is a contribution allowed by law for such payments and
expenses between the constructive wrong-doers, whether partners or not."
The cases are all brought together in Chitty on Contracts, 502, where the
author most fully sustains by his own remarks the qualifications of the
rule laid down by Lord Denman. I will here leave this topic, only re-
peating my remark that the maxim in question is scarcely worthy of beiuL^
considered a general rule of law, for it is applicable only to a definite class
of cases, and to that class the case before us does not belong.
A few words will suffice as to the remaining objection, which goes to the
form of action. The defendant insists that it should have been case, and
not assumpsit, and that the evidence adduced by the plaintiff does not sup-
port his declaration. We thiiik this objection is not well founded, and
that the plaintiff has brought the proper action. He sues for money paid,
laid out, and expended, which, to say the least, it was the duty of the de-
fendant to pay, quite as much as Whitlock and Turner, and it was paid in
satisfaction of a judgment against the three. If assumpsit will not reach
such a case, it must be because there are no merits in the case upon which
to sustain any action, which we have endeavored to show is not the fact.
That judgment was priina facie evidence of a joint debt or duty ap^ainst
the three, and the further evidence adduced by the plaintiff did not vary
the apparently good cause of action, but was offered for the purpose of
proving that Turner paid the whole judgment, and to show the character of
the negligence for which the defendants had been subjected, and whose
1 2 A. & E. 57. 2 Winch, 48.
VOL. II. — 32
498
BAILEY r. BUSSING.
[chap. V.
AX
negligence it was in fact that had thus involved hiui in such a heavy loss.
The payment by Turner was not a voluntixry payment, nor was it made
officiously, nor on 'a mere moral obligation. Had it been, possibly the de-
fendant here could avoid any contribution, l^ut it jvas an act of necessity.
'Mr. and ]\Irs. Haight demanded the whole judgment of Turner, and he
pTidiL 0" ^'"" '"vp'^i'tion- Such a payment I must think stands on tlie
same irrouud. if my reasoning hitherto is correct, as it it hacl beeii hUldu urr
a judgment tbunded on a joint contract. In equity and justice it is money
^paTd for the person who, in the end, is bound to pay the debt, or so much
of it as belongs to him to pay. Why then should the plaintiff sue in case
rather than assumpsit 1
Let us look at some of the cases of assumpsit for money paid, and the
principle settled by them. Generally, it is suiricicnt if the money is paid
for a reasonable cause and not officiously. Brown v. Hodgson ; ^ Skillin v.
Merrill;'-^ J efferys v. Gurr ; ■^ Pownal v. Ferrand;* Exall v. Partridge ;«
Toussaint v. :Martinnant.^ So where it has been paid to relieve a neigh-
bor's goods from legal distraint in his absence, Jenkins v. Tucker,' for
there was a legal duty resting on the defendant. So to defray the expenses
of his wife's funeral, for there was a like duty. So to reimburse the ex-
penses of bail for pursuing the principal and bringing him back and sur-
rendering him in court. Fisher v. Fallows.^ So for getting the defendant's
goods free, which had been distrained by the landlord for the plaintiff's
debt, they being at the time on the tenant's premises. Exall v. Partridge.'
Or for money paid to indemnify the owner for the loss of his goods, which
the plaintiff, an auctioneer, had by mistake delivered to the defendant, who
had appropriated them to his own use ; Brown v. Hodgson ; ^ though of
this case Lord Ellexborough, in Sills v. Laing,* said that he thought tlie
action should have been special, but the right of action he did not question.
So where money has been paid by a surety, or by one of several joint debt-
ors. ^"^ So where one has accepted for honor a protested bill and paid it.
In Pownal v. Ferrand," Tenterden, C. J., says : " The plaintiff is entitled
to recover in assumpsit upon the general principle that one man who is
compelled to pay money which another is bound by law to pay, is entitled
to be reimbursed by the latter ; " and Lord Loughborough, in Jenkins v.
Tucker,^- remarked that there are many cases of the sort (the funeral ex-
penses of another's wife in his absence), where a person having paid money
which another was under a legal obligation to pay, though without his
knowledge or consent, may maintain an action to recover back the money
80 paid. The views of Chitty, in his treatise on Contracts, p. 469, and of
Greenleaf, in his treatise on Evidence, vol. 2, sec. 108, are in harmony with
1 4 Taunt. 189.
♦ 6 B. & C. 439.
T 1 H. Bl. 90.
10 1 Stcph. N. P. 324, 32G.
2 16 Mass. 40.
6 8 T. R. 308.
8 5 Esp. 171.
11 G B. & C. 439.
8 2 B. & Afl. 833.
6 2 T. K. 100.
9 4Camph. SI.
12 1 H. 151. 90.
SECT. II.] AEMSTKONG COUNTY V. CLARION COUNTY.
499
this priiici|>lc,_tlKit where the jjliuiitifl' shows that, either by compulhiiuii of
law, or to relieve himself from liability, or to save himsnlf {ycM',^ 'liunngc,_liu_
has paid money, not olliciously, which the defeiulant outjht to liavoj^nM!.
"count in assumpsit for money paid will be sui)portcd.
These cases are most abundant to show that the present action is well
brought and should be sustained, if the payment made by Turner was not,
as it certainly was not, an unnecessary or officious payment. We conclude
therefore that the objections we have been considering ought not to defeat
the right of the plaintiff to recover, and we do not advise a new trial.
In this opinion tlie other judges concurred.
New trial not advised.
jL
^I^^CC^
.V-*^^ ARMSTRONG/fcoUNTY CcLAPJON COUNTY
/■ '^'^J^^^^^^^i^'^'^^^1^7^^^'^^'^^^', October 21, isfo
y^^:ZZ&^^^^ /fr-v^- l/teported in 66 Pennsylvania State Reports,, 2\^.] ^^-J^^<Jl^ ^
^^^^^^OcTOBER 21st, 18'70./' Before Thompson, C. J., Read, Agnew, Sharswood,
and Williams, J J.
•^ Error to the Court of Common Pleas of Clarion County : No. 88, to
October and November term, 1870,
This was an action of assumpsit by The County of Armstrong against
The County of Clarion, commenced October 30, 1869, for contribution
under the following circumstances : —
I At Rockport Mills there is a public bridge over Red Bank creek, which is
; the dividing line between Armstrong County and Clarion County ; the
I bridge is consequently to be maintained at the joint expense of the two
counties. In 1860 the commissioners of both counties received notice that
the bridge was out of repair ; they made a joint examination of it, and
directed some slight repairs, which were done at the joint expense of the
two counties. Not long afterwards the bridge broke down whilst John A.
Humphrey was crossing with a two-hoi'se wagon, and severely injured him.
To March term 1862, he brought an action for negligence against the
county of Armstrong. The commissioners of that county gave notice of
the bringing of the suit to the commissioners of Clarion, and called on
them to assist in its defence, which was not done. A verdict was recov-
ered December 16, 1868, against Armstrong for .$1,100, which, with the
costs amounting in all to $1,597.31, Armstrong County paid. The com-
missioners of Clarion were called on to contribute their proportion to this
payment, which they declined to do.
On the trial before Campbell, P. J., these facts were proved or admitted,
■when tlic court, on motion of tlie defendant, directed a nonsuit on the
«^v-»-4Lt;/> c^-~-jp
500
ARMSTRONG COUNTY V. CLARION COUNTY. [CHAP. V.
ground tlint t1>pv<^ \Yas no contribution Jb^^tAynpn wrnng-rloovs. This was
assi^'ned for error by the plaintiffs, on the removal of the case to the
Supreme Court.
F. Afechling, G. W. Lathey, and D. Barclay for plaintiff in error.
IF. L. Corbett for defendant in error.
The opinion of the court was delivered, January 3, 1870, by
Read, J. The bridge across Red Bank creek, between the counties of
Armstrong and Clarion, at the place known as the Rockport Mills, was a
county bridge, maintained and kept in repair at the joint and equal charge
of both counties. Whilst John A. Humphreys was crossing the bridge it
fell and he was severely injured ; he brought suit for damages against the
county of Armstrong ; and on the trial, under the charge of the court,
there was a verdict for defendant. This was reversed on writ of error ; *
and upon a second trial there was a verdict for the plaintiff for $1,100
damages, on which judgment was entered. This judgment, with interest
and costs, was paid by Armstrong County, and the present suit is to re-
cover contribution from Clarion County. On the trial the learned judge
nonsuited the plaintiff on the ground that one of two joint wrong-doers
cannot have contribution from the other.
The commissioners of the two counties had examined the bridge in the
summer and ordered some repairs, which were made. There can be little
doubt that morally Clarion County was bound to pay one-half of the sura
recovered from and paid by Armstrong County ; and the question is, does
not the law make the moral obligation a legal one 1 ^Morryweathcr v.
Nixan^ the leading case on the subject, was of a joint injury to real estate,
and for the joint conversion of personal property, being machinery in a
mill. In Colburu v. Patmore,^ the proprietor of a newspaper, who, for a
libel published in it, was subjected to a criminal information, convicted and
fined, sought to recover from his editor who was the author of the libel,
the expenses which he had incurred by his misfeasance ; Lord Lyxdiiurst
said : " I know of no case in which a person who has committed an act
declared by the law to be criminal, has been permitted to recover compen-
sation against a person who has acted jointly with him in the commission
of the crime."
So in Arnold v. Clifford,* it was held, a promise to indemnify the pub-
lisher of a libel is void. " No one," said Judge Story, " ever imagined
that a promise to pay for the poisoning of another was capable of being
enforced in a court of justice."
In Miller v. Fenton,^ the wrong-doers were two of the officers of a bank,
who had fraudulently abstracted its funds, and of course there could be no
contribution between criminals. In the case of The Attorney-General v.
Wilson,*' cited in the ahove case by the chancellor, and also reported in
1 G P. F. Smith, 204. 2 s T. R. 186. » 1 (V. M. & R. 73.
4 2 Sumner, 238. '' 11 Paige, 18. " 4 Jurist, 1174.
SECT. II.] AKMSTRONG COUNTY V. CLARION COUNTY. 501
1 Craig & Phillips, 1, where it was contended that all the i)er8ons charged
with the breach of trust should be made parties, Lord Cottexuam said:
"In cases of this kind where the liability arises from the wrongful act of
the parties, each is liable for all the consequences, and there is no contribu-
tion between them, and each case is distinct, depending upon the evidence
against each party. It is therefore not necessai-y to make all parties who
may more or less have joined in the act cojjiplained of." Seddon v. Con-
uelV is to the same effect.
In Story on Partnership, § 220, after speaking of the general rule that
there is no contribution between joint wrong-doers, the author says : " But < yitr^ i^i '
tlie rule is to be understood according to its true sense and meaning, ), j r *^
which is, where the tort is a known meditated wrong, and not where the i/^*-^"-.' ^« (i^vT^
party is acting under th^e supposition of the nntim innnfyncf^ :u\r] prnpyiofy i l^i A ' t.
of the act, and the tort isjiierely one l)y ponKhr-imMnHj or inffvni^'P nf );^»r
In the latter case, although not Jn_tbe former, there may be and properly
is a contribution allowed by law for such payments and expenses between
constructive wrong-doers, whether partners or not." The case of Adamson
V. Jarvis, cited by the learned commentators, is in 4 Bing. Q)Q, in which
Lord Chief Justice Best, after noticing Merryweather v. Nixan, says : " The
case of Philips v. Biggs " "^ (which was on the equity side of the Exchequer),
" was never decided ; but the court of chancery seemed to consider the case
of two sheriffs of Middlesex, where one had paid the damages in an action
for an escape, and sued the other for contribution, as like the case of two
joint obligors.
" From the inclination of the court in this last case, and from the conclud-
ing part of Lord Kenton's judgment in Merryweather v. Nixan, and from
reason, justice, and sound policy, the rule that wrong-doers cannot have
redress or contribution against each other is confined to cases where the
person seeking redress must be presumed to have known he was doing
an unlawful act."
In Betts V. Gibbins,^ Lord Denman said : " The case of Merryweather v.
Nixan,* seems to me to have been strained beyond what the decision will
bear — the present case is an exception to the general rule. The general
rule is, that between wrong-doers there is neither indemnity nor contribu-
tion. The exception is where the act is not clearly illegal in itself, and
Merryweather v. Nixan ^ was only a refusal of a rule nisi.
" In Adamson v. Jarvis,^ we have the observations of a learned person
familiar with commercial law."
A promise to indemnify against an act not known to the promisee
at the time to be unlawful is valid. Coventry v. Barton ; ' Stone v.
Hooker.*
1 10 Sim. 81. 2 Hardres, 164. 3 2 A. & E. 57.
4 8 T. R. 186. 5 8 T. R. 186. 6 4 Biug. &Q.
'' 17 Johns. 142. 8 9 Cow. 154.
502 CHURCHILL v. holt. [chap. v.
In Pearson v. Skelton,^ where one stage-coach proprietor had been sued
for the nef^Ugence of a driver, and damages had been recovered against
him, which he had paid, and he sought contribution from another of
the proprietors, it was held that the rule there, no contribution between
joint tort-feasors, does not apply to a case where the party seeking contri-
bution was a tort-feasor only by inference of law, but is confined to cases
where it must be presumed that the party knew he was committing an
unlawful act.
The same doctrine was maintained in Wooley v. Batte.'^
Tliesc cases have been followed in this court in llorbach's Administrators
V. Elder.* " Here," said Judge Coulter, " the plaintiff and defendant
are in cequali jure. The plaintiff has oxclusively borne the burden which
ought to have been shared by the defendant, who therefore ought to con-
tribute his share."
" Contribution," says Lord Chief Baron Eyre, in Deering v. Earl of Win-
chclsea,* "is bottomed and fixed on general principles of natural justice,
and does not spring from contract."
These principles rule the case before us. The parties plaintiff and dc-
fcndant are two municipal corporations, jomtly bound to keep this bridge
in repair. These bodies can act only by their legally constituted agents,
theTr commissioners", who examine the structure and.oider repair, wliirh ia'
done. Tt^^^^^_2vrpj_ui jiid^rmnnt, nnd l^oth wprp linlilp for thn ponspnnenr.ns
of that error, and one having paid the whole of the damages is entitled to
contribution from the other. .
Judgment reversed^ and venire de novo awarded.
I) // WILLJAM W. CHURCIIILL AND Others v/ REUBEN L. nODT
i^y^ .*— o^ A..-^^/-- .i^.^^,^=5fc^^^,;v^ ^^^ Others. , ^^
^/^^^ : L^ ^^ij4 ^4x/f£^^.s^Q^f^^^/s.^^'^^^ lo, \ii^^
^^2fer^<5y7' /JcW^ to^ "^^^[Reporled in 127 Massachusetts Reports, 165,] /^«— -?^*^V t
L^^^ J-^cw a^^^-^^L., Ur..^^^ZrJr ML /U- FI^.^^Jl^'T^/^^
^Y I M(Aton, J. The plaintiffs were thcf/Jbssees and occupants of a budduig
t-^r v~ Vj-*^^-^ • ^" Winter Street, a crowded thoroughfare in the city of Boston. Con-
> r- CCT' /nected with the building there was a hatchway in the sidewalk, leading
s ty irf-^^^^ .^^^^ ^^^ basement. On March 31, 187.5, one Julia Meston, a traveller upon
the street, fell into the hatchway, which had been left open and unguarded,
and was injured. She brought an action against these itlaiutiffs, alleging
that she was injured by reason of their negligence in keeping the covering
of the hatchway in an insecure condition, in allowing it to decay and be-
1 1 M. & W. 504. 2 2 0. &P. 117.
8 6 Harris, 33. * 1 Cox, 318.
SECT. II.]
CHUKCIIILL V. HOLT.
)03
come ruinous, and in allowing the hatchway to be uncovered, in whicli ac-
tion she recovered a judgment for damages. The plaintifls have brought
this action to recover the amount of such judgment paid by them, on
the ground that the hatchway was left uncovered, thus rendering the
street dangerous, by the negligent and wrongful act of a servant of the '
defendants.
One ground taken by the defendants in this action is, that the injury
was caused by the joint negligence of the plaintiffs and defendants, that
they were joint tort-feasors, and, therefore, that there is no right to indem-
nity or contribution between them. This subject was considered in the
recent case of Gray v. Boston Gas Light Co.,^ and the decision in that case
covers the questions raised in the case at bar. As there stated, the rule
that one of two joint tort-feasors cannot maintain an action against the
other for indemnity or contribution, does not apply to a case where one
does the act or creates the nuisance, and the other does not join therein,
but is thereby exposed to liability ; in such case, the parties are not in pari
delicto as to each other, though as to third persons either may be held
liable. In^the case at bar, it was not negligent or wrongful for the plain-
tiffs to have a suitable hatchway extending into the sidewalk, or to open it
at proper times, taking care to provide barriers or other warnings to pre-
vent danger to travellers on tlie street. The negligence which made them
liable to the person injured was, that they allowed the hatchw.qy tn mmnin
open wjthout proper barriers or other warning. As lessees and occupants
of the building, it was their duty, as between themselves and the public,,
to keep the hatchway_in such proper and safe condition that travellers on
the street would not be injured. If they neglected this duty, they would
be liable, although the unsafe condition was caused by a stranger, and
although they did not know it. Their liability^depemii^aipm;— tiie— ffttes-i
tion whether the hatchway was dangerous to travellers under such circiim-|
stances that the occupant of the building was responsible for the injur)
suffei-ed, and not upon the question as to who neglig'ently did the act whicli
created the danger. If the defendants, or a servant in the prosecution of
their business, negligently uncovered the hatchway and allowed it to re-
main unguarded, without the knowledge of the plaintiffs, whereby the
plaintiffs from their relation to the building were made liable to the person
injured, the rule as to joint tort-feasors does not apply, but the plaintiffs can
maintain this action.
The ground taken by the defendants, that the judgment in the suit by
Meston against the plaintiffs is conclusive against the right to maintain
this action, cannot be sustained.
Under the pleadings in that suit, the judgment may have been rendered
upon the ground that the plaintiffs were liable as occupants of the building,
without any regard to the question whether they or a stranger to the suit,
1 114 Mass. 149.
^f/*'
504 TOMKINS V. BERNET. [CIIAP. V.
removed the cover, or negligently left it unguarded. It conclusively shows
that they were guilty of negligence in law as to the person injured, but it
does not show that they were participes a-iminis with the defendants, and
is not inconsistent with their right to maintain this action.
At the trial, the plaintiffs offered evidence tending to show that, on the
day when the accidentTiappened, they lcft"The hatcliway in a reasonably"
r~5afe~ conditioin that a servant of the defendants in tTic" course of tliolr-
"buslness, without the knowledge of the plaintill's, removed tiic cover, and"
left without rcjjlacing it or providintr any barrier or warning ; and that,
while it was thus open, j\Irs. INIeston fell in and was injured.
We^e of opinion that the evidence should have been submitted to the
jury. Case to stand /or trial.
a R Train and J. 0. Teele, for the plaintiffs.
A. A. Ranney, for the defendants.
SECTION III.
UNDER DURESS, LEGAL OR EQUITABLE.
TOMKINS V. BERNET.
At Nisi Prius, in London, before Treby, C. J., Hilary Term, 1G93.
[Reported in 1 Salkeld, 22.1]
Three were bound in an usurious obligation ; one of them paid some
part of the money, and afterwards the obligee brought debt against another
1 This case is reported iu Skinner, 411, as follows: —
" Upon a trial at Guildhall in an indebitatus assumpsit for money received to the use
of the plaintiff, the case was, the plaintiff was co-obligor with J. S. to the defendant,
and between J. S. and the defendant there was an usurious contract. The i)laintiir paid
part of the money to the obligee, and after pleaded the statute of usury upon this bond,
and this is adjudged an usurious bond ; upon which he brought this action for the
money paid before the bond was proven usurious. And the question was, if the action
lay ; and Holt, C. J., seemed to incline strongly that it did not lie. For here there
was a payment actually made by the plaintiff to the defendant in satisfaction of this
usurious contract. And if they will make such contracts, tlu'y ought to be punished ;
and he was not for encouraging such kinds of indebitatus assumj)sits. And though the
case was objected that if a man pay money upon a policy of a.ssurance, supposing a loss
where there was not any loss, that in such case this shall be money received to the use
of the payer, he admitted it ; because here tlie money was paiil upon a mistake ; the
same law if it was upon a fraud in the receiver ; but in the princii)al case, he was of
opinion %it supra, and said tliat he would not encourage these actions ; but that it is like
to the case of bribes : lie who receives it ought to be punished, but he who gives Iheni
ought not to be encouraged by any way to recover his money again." — En.
SECT. Ill] BOSANQUETT V. DASIIWOOD. 505
of the obligors, who pleaded the statute of usury, and avoided the bond ;
and now the obligor that had paid some part of the money without cause
to the obligee, brought an indehitatiis assumpsit against him to recover back
that money, Treby, C. J., allowed that where a man pays money on a
mistake in an account, or where one pays money under or by a mere
deceit, it is reasonable he should have his money again ; but where one
knowingly pays money upon an illegal consideration, the party that re-
ceives it ought to be punished for his offence, and the party that pays it is
particeps criminis ; and there is no reason that he should have his money
again, for he parted with it freely, and volenti non fit injuria. This case
was cited : One bound in a policy of assurance, believing the ship to be
lost when it was not, paid his money, and it was held he might bring an
assumpsit for the money. One was employed as a solicitor, and had
money given him to bribe the custom-house officers ; and he laid out the
money accordingly. Assumpsit was brought against the solicitor for this
money, and held it lay not.
BOSANQUETT v. DASHWOOD.
In Chancery, before Lord Talbot, C, November 11, 1735.
{Reported in Cases Tempore Talbot, 37.]
The plaintiffs being assignees under a commission of bankruptcy against
the two Cottons, brought their bill against Dashwood the defendant, as
executor of Sir Francis Dashwood, who had in his lifetime lent several
sums to the Cottons, the bankrupts, upon bonds bearing 6^. per cent inter-
est ; ^ and had taken advantage of their necessitous circumstances, and
compelled them to pay at the rate of 10/. per cent, to which they sub-
mitted, and entered into other agreements for that purpose ; and so con-
tinued paying 10/. per cent from the year 1710 to the year 1724.
It was decreed at the Rolls that the defendant should account ; and that
for what had been really lent, legal interest should be computed and al-
lowed ; and what had been paid over and above legal interest should be
deducted out of the principal at the time paid ; and the plaintiffs to pay
what should be due on the account : and if the testator had received more
than was due with legal interest, that was to be refunded by the defendant,
and the bonds to be delivered up.
Mr. Solicitor-General and Mr. Fazakerley for the defendant.
Lord Chancellor. There is no doubt of the bonds and contracts there-
in being good : but it is the subsequent agreement upon wliich the ([uestion
arises. It is clear that more has been paid than legal interest. That
appears from the several letters which have been read, and which prove an
^ Beiufr the then leical interest.
506 BOSANQUETT V. DASHWOOD. [CIIAP. V.
agreement to pay 10/, per cent, and that from Sir Francis Dashwood's re-
ceipts ; but whether the i)laintitis be iutitled to any rehef in eipiity, the
money being paid, and those payments agreed to be continued, by sev-
eral letters from the Cottons to Sir Francis Dashwood, wherein arc promises
to pay off the residue, is now the question.
The only case that has been cited that seems to come up to this, is that
of Tomkins v. Bornet ; ^ which proves only, that where the party has paid a
sum upon an illegal contract, he shall not recover it upon an action brought
by him. And though a court of equity will not differ from the courts of
law in the exposition of statutes ; yet does it often vary in the remedies
given, and in the manner of applying them.
The penalties, for instance, given by this act, are not to be sued for here ^
nor could this court decree them. And though no indebitatus assumpsit
will lie, in strictness of law, for recovering of money paid upon an usurious
contract ; yet that is no rule to this court, which will never see a creditor
running away with an exorbitant interest beyond what the law allows,
though the money has been paid, without relieving the party injured. The
case of Sir Thomas Meers, heard by the Lord Harcourt, is an authority in
point, that this court will relieve in cases, which, though perhaps strictly
legal, bear hard upon one party. The case was this : Sir Thomas Meers
had in some mortgages inserted a covenant, that if the interest was not
paid punctually at the day, it should from that time, and so from time to
time, be turned into principal, and bear interest : upon a bill filed, the
Lord Chancellor relieved the mortgagors against this covenant, as unjust
and oppressive. So likewise, is the case of Broadway, which was first heard
at the Eolls, and then affirmed by the Lord King, an express authority
that in matters within the jurisdiction of this court it will relieve, though
nothing appears which, strictly speaking, may be called illegal. The rea-
son is, because all those cases carry somewhat of fraud with them. I do
not mean such a fraud as is properly deceit ; but such proceedings as lay a
particular burden or hardship upon any man : it being the business of this
court to relieve against all offences against the law of nature and reason :
and if it be so in cases which, strictly speaking, may be called legal, how
much more shall it be so, where the covenant or agreement is against an
express law (as in this case) against the statute of usury, thougli the party
may have submitted for a time to the terms imposed on him? — The pay-
ment of the money will not alter the case in a court of equity ; for it ought
not to have been paid : and the maxims o^ volenti nnn fit injuria will hold
as well in all ca.scs of hard bargains, against which the court relieves, as in
this. It is only the corruption of the person making such bargains that
is to be considered : it is that only which the statute has in view; and it is
that only which intitles the party oppressed t(j relief. This answers the
objection that was made by the defendant's counsel, of the bankrupts being
1 1 Salk, 22.
SECT. III.] SMITH V. BROMLI'^Y. 507
participes criminis ; for they are oppressed, and their necessities obli"-ed
them to submit to those terms. Nor can it be said in any case of opni-cs-
sion, that the party oppressed is particep^ criminis ; since it is that vciy
hardship which he labors under, and which is imposed on him by another,
that makes the crime. The case of gamesters, to which this has been com-
pared, is no way parallel ; for there, both parties are criminal : and if two
persons will sit down and endeavor to ruin one another, and one pays the
money, if after payment he cannot i-ecover it at law, I do not see that a court
of equity has anything to do but to stand neuter ; there being in that case
no oppression upon one party, as there is in this. Another difficulty was
made as to the refunding : but is not that a common direction in all cases
where securities are sought to be redeemed, that if the party has been over-
paid, he shall refund ] Must he keep money tliat he has no right to,
merely because he got it into his hands'? — I do not determine how it would
be, if all the securities were delivered up ; this is not now before me : I
only determine what is now before the court ; and is the common direction
in all cases where securities are sought to be redeemed.
And so affii-med the decree, dec.
SMITH V. BEOMLEY.
At the Sittings at Guildhall, before Lord Mansfield, C. J., after
Easter Term, 17C0.
[Reported in 2 Douglas, 696.]
Action for money had and received to the plaintiff's use ; upon this case :
The plaintift's brother having committed an act of bankruptcy, the defend-
ant, being his chief creditor, took out a commission against him, but,
afterwards, finding no dividend likely to be made, refused to sign his cer-
tificate. But on frequent" application and earnest entreaties, made by the
bankrupt to one Oliver, a tradesman in town, who was an intimate friend
of the defendant, who lived in Cheshii'e, he got Oliver to write to the de-
fendant several times, and he at last prevailed on the defendant to send
him, Oliver, a letter of attorney, empowering him to sign the certificate,
which Oliver would not do, unless the bankrupt, or somebody for him,
would advance 40/. and give a note for 20/. more, and which, on Oliver's
signing the certificate for the defendant, the plaintiff (who was the bank-
rupt's sister), paid, and gave to Oliver accordingly, who thereupon gave
her a receipt for the money, promising to I'eturn it if the certificate was
not allowed by the Chancellor. The certificate was allowed. The plain-
tiff afterwards brought her action against Oliver to recover back the 40/.
from him, but, that action coming on to be tried before Lord Mansfield,
at Ouildhiill, at the sittings after last Trinity term, and it then appearing
508 SMITH r. BROMLEY. [CHAP. V.
that Oliver had actually paid over, or accounted for, the iO/. to Bromley,
and his lordship being clearly of opinion that this action would not lie
against the plaintiflTs own agent, who had actually applied the money to
the purpose for which it was paid to him, the plaintiff was nonsuited in that
action • and now she brought this action against Bromley himself; which
comins on to be tried, it was proved that the money was received by
Oliver, and paid over to the defendant.
It was contended for the plaintiff; that this money was paid either with-
out consideration, or upon one that was illegal, and, in either case, was
recoverable back by this action.
For the defendant, it was argued, that there was certainly a considera-
tion for the paymeut of the money, to wit, the signing of the bankrupt's
certificate ; That, if this consideration was illegal, the plaintiff was partictpt
cnminU, had paid it voluntarily and knowingly, and without any deceit;
and so was within the case of Tomkins v. Bemet ; * but that there wag
nothing illegal in it ; for it was the money of a third person, and so no
diminution of the bankrupt's effects, or fraud upon his creditors ; in which
case only, whereby the distribution becomes unequal, is there any iniquity
in receiving a consideration for signing the certificate. That, if the legislsr
ture had intended that money paid upon such consideration should be con-
sidered as illegally paid, they would have made it part of the clause in 5
Geo. 2, c. 30, which makes void bonds, bills, and other securities given
for this pxirpose, in the same manner as in the statute against gaming, —
there is an express provision for the recovering back of money lost at play.
That courts of justice had always construed that clause of 5 Geo. 2, c. 30,
in a strict manner, as appeared by the case of Lewis r. Chase,' and which
case, as to the merits, seemed to be less favorable for the creditor than the
present ; for, there, the bankrupt himself, not the third person, gave a bond
for the whole debt, in consideration of a creditors withdrawing a petition
he had preferred to the Great Seal against the allowance of the bankrupt's
certificate. That in the present case, if there was any guilt, the plaintiff
was more guilty than the defendant, for he Lad received very little towards
his debt, which was 1150^. That, if the plaintiff had become security for
her brother the bankrupt, before the act of bankruptcy, the defendant
mi^ht have received the money of her, without any imputation ; and that,
if a third person afterwards voluntarily paid what she might before have
become bound for, without any hurt to the bankrupt's other creditors,
there was no iniquity in the creditor's taking the money, so as it did not
amount to his whole debt.
But Lord Mansfield was of a different opinion- He said, it was iniqui-
tous and ille<ral in the defendant to take, and, therefore, it was so to
detain this AOi. If a man makes use of what is in his own power to ex-
» H. 5 WilL 3, at N. Pr., before Teebt, Chief Justice, 1 Ssilk. 22.
« Cape. E. 172»), 1 P. Wms. •5-2«).
SECT. III.] SMITH V. BROMLEY. 509
tort money from one in distress, it is certainly illegal and oppressive
and, whether it was the bankrupt or his sister that paid the money, it is
the same thing. The taking money for signing certificates is either an op-
pression on the bankrupt or his family, or a fraud on his other creditors.
It was a thing wrong in itself, before any provision was made against it by-
statute ; for, if the bankrupt has conformed to all the law requires of him,
and has fairly given up his all, the creditor ought in justice to sign his
certificate ; but, on the other hand, if the bankrupt has been guilty of any
fraud or concealment, the creditor ought not to sign for any consideration
whatever. If any near relation is induced to pay the money for the bank-
rupt, it is taking an unfair advantage, and torturing the compassion of his
family ; if it js the money of the bankrupt himself, it is giving one creditor
his debt to the exclusion of the others, and a fraud upon tliem. As to the
case cited from Peere Williams, that only affected the person who peti-
tioned. There might have been sufficient of the creditors in number and
value to sign without him, and he had a right to compromise it upon what
terms he pleased. The petitioning, or not, was entireh^ in his own power,
and not like the present case. It is argued, that, as the plaintiff founds
her claim on an illegal act, she shall not have relief in a court of justice.
But she did not apply to the defendant or his agent to sigu the certificate
on an improper or illegal consideration ; but, as the defendant insisted
upon it, she, in compassion to her brother, paid what he required. If the
act is in itself immoral, or a violation of the general laws of public policy,
there the party paying shall not have this action ; for where both parties
are equally criminal against such general laws, the rule is potior est con-
ditio defendentis} But there are other laws, which are calculated for the
protection of the subject against oppression, extortion, deceit, &c. If such
laws are violated, and the defendant takes advantage of the plaintiff's con-
dition or situation, there the plaintiff" shall recover ; and it is astonishing
that the Reports do not distinguish between the violation of the one sort
and the other. As to the case of Tomkins v. Bernet, it has been often
^ The tnie test for determining whether or not the plaintiff and the defendant were
in pari delicto, is by considering whether the plaintiff could make out his case otherwise
than through the medium and by the aid of the illegal transaction to which he was him-
self a party (Simpson v. Bloss, 7 Taunt. 246 ; Frivaz v. Nichols, 2 C. B. 501). — Mel-
LOR, J., in Taylor v. Chester, L. R. 4 Q. B. 309, 314.
It is argued on the plnintifFs behalf that the claim which he makes is for money had
and received, traced distinctly to Thaxter'.s hands, and held by a contract tainted with no
illegality ; that the defendant in order to resist the claim is obliged to set up an illegal
agreement, and rely upon it, and that this necessity is the test as to the equality of the
delict. However ingenious this suggestion may be, it can hardly prevent the court from
taking the whole transaction together and considering what it is in substance and effect.
The application of the maxim in pari delicto, etc., does not depend upon any technical nile
as to which party is the first to urge it upon the court in the pleadings. In practice, it is
usually insisted upon by the defendant in answer to a prima facie case. — Wells, J., in
Sampson v. Shaw, 101 Mass. 145, 151. [Ed.]
510 SMITH V. BKOMLEY. [CIIAP. V.
mentioued, and I have often had occasion to look into it ; but it is so
loosely reported, and stuffed with such strange arguments, that it is difficult
to make anything of it. One book says it was determined by Lord Holt ;
another, by Lord Trebv. Certain it is, it was only a Nisi Prius case. I
think the judgment may have been right, but the reporter, Salkeld, not prop-
erly acquainted with the facts, has recourse to false reasons in support of it.
The case must have been, as I take it, an action to recover back what had
been paid, in part of princij)al and legal interest upon an usurious con-
tract ; and therefore, the action would not lie, for so far as principal and
legal interest went, the debtor was obliged in natural justice to pay, there-
fore he could not recover it back. But for all above legal interest, equity
will assist the debtor to retain, if not paid, or an action will lie to recover
back the surplus, if the whole has been paid.* The reporter, not seeing this
distinction, has given the absurd reason, that volenti non fit injuria; and,
therefore, the man, who from mere necessity pays more than the other
can in justice demand, and who is called, in some books, the slave of the
lender, shall be said to pay it willingly, and have no right to recover it
back, and the lender shall retain ; though it is in order to prevent this
oppression and advantage taken of the necessity of others, that the law
has made it penal for him to take ! This kind of reasoning is equally ap-
plicable to the case of a bailiff who takes garnish-money from his prisoner.
It is wrong for the bailiff to take it, and it is therefore wrong for the other
to tempt him, and volenti, etc. and therefore he shall not recover it back ;
but this has been determined otherwise. The case of money given to a
solicitor to bribe a custom-house officer, cited in that of Tomkins v. Bernet,
is against his own agent, and, therefore, he cannot recover. But the
present is the case of a transgression of a law made to prevent oppression,
either on the bankrupt, or his family, and the plaintiff is in the case of a
person oppressed, from whom money has been extorted, and advantage
taken of her situation and concern for her brother. This docs not depend
on general reasoning only ; but there are analogous cases, as that of Astley
V. Reynolds.^ There, the plaintiff having pawned some goods with the
defendant for 201. he refused to deliver them up, unless the plaintiff would
pay him 10/, Tlie plaintiff liad tendered 4^., which was more than the
legal interest amounted to ; but, finding that he could not otherwise get
liis goods back, ho at last paid the whole demand, and brought an action
for the surplus beyond legal interest, as money had and received to his use,
and recovered. It is absurd to say, that any one transgresses a law made
for his own advantage, willingly. Put the case, that a man pawns another's
goods ; the right owner might be obliged to pay more than the value, and
would have no relief, if this action will not lie. As to the case of usury, it
was decided both by Lord Talbot, and Lord Hardwicke, in the case of
i Browning v. Morris, Cowp. 790, 792, accord (scmblc), pur J^d. Man.sfield. — Ed.
2 15. W. M. 5 Ceo. 2, 2 Str. 915.
SECT. III.] WILLIAMS V. IIEDLEY. 511
Bosanqiiett v. Dtxshwoocl,^ on a bill brought to compel the defendant to re-
fund what he had received above principal and legal interest, that the sur-
plus should be repaid. Upon the whole, I am persuaded it is necessary,
for the better support and maintenance of the law, to allow this action •
for no man will venture to take, if he knows he is liable to refund. Where
there is no teniptation to the contrary, men will always act right.
The jury, under his lordship's direction, found a verdict for the plaintill",
with 40^. damages.
WILLIAMS V. IIEDLEY.
In the King's Bench, May 2, 1807.
[Reported in 8 Edst, 378.]
After this case had been argued in the last term, upon a rule granted
in Michaelmas term preceding to show cause why the verdict, which had
been obtained for the plaintiff at the trial before Lord Ellenborough at
Guildhall, should not be set aside and a new trial had, by Sir V. Gibbs and
Wigley in support of the rule, and by Garroiv, Marry at, and Lawes against
it; the case stood over for consideration till this term, when the opinion of
the court was delivered by
Lord Ellenborough, C. J. This was an action for money had and re-
ceived, brought to recover the sum of 965^. O.s. 8c/., as having been unduly
obtained by the defendant from the plaintiff, under an agreement to com-
promise a qui tarn action for penalties of usury, brought by the defendant
against the plaintiff, on the ground of certain usurious transactions which
had taken place between the plaintiff Williams and one Eagleton. This
sum of 965/. Qs. 8d. was the amount of the debt which had been owing
from Eagleton to Hedley and his partner; and the jury, to whom the
question was left at the trial, found that the payment of this debt of
Eagleton by the plaintiff to the defendant was obtained from tlie plaintiff
under the terror of the above mentioned action of usury brought by the
defendant, and then depending against him, and throngli the means of an
agreement between the parties to compromise that action ; and the plain-
tiff thereupon recovered a verdict against the defendant for the amount of
the money he had so obtained from him. Upon the motion for a new trial
two objections have been taken to the plaintiffs right to recover : the first
was, that the plaintiff was in pari delicto with the defendant, as to the
illegal compromise of the penal action, and on that account not entitled
to recover. The second objection was, that as Eagleton's assignees had,
after his bankruptcy, recovered this money against the defendant and his
1 Cane. M. 8 Geo. 2, Ca. temp. Talb. 38.
512 WILLIAMS V. HEDLEY. [CIIAP. V.
partner, as money received by them for the use of the assignees, the plaiu-
titf could not now recover the money against the defendant ; ^ the plaintiff
having, as was contended on the behalf of the defendant, enabled Eagletou's
assio-nees to recover that money from him and his partner, and thereby
estopped himself now to recover it from the defendant. But as there was
no evidence given at the trial of any act done on the part of Williams, the
plaintiff, in order to enable the assignees to recover, or which could be con-
sidered as rendering him in any degree privy to that suit, or liable for its
consequences, that objection fell to the ground for want of its opcessary
foundation in point of fact. The first of these two objections is therefore
the only one which remains to be considered. The answers given to it on
the part of the plaintiff were, first, that the plaintiff, who was defendant
in the action for usury, was not prohibited by the statute 18 Eliz. c. 5, f 4,
from agreeing to this composition, and paying the money which Hedley
received under it; but that the prohibition and penalties of the statute, in
this respect, solely attached upon and were confined to the informer or
plaintiff in the penal action, "or other persons concerned in suing out
process, making of composition, or other misdemeanor, contrary to that
statute ; " and did not attach upon or extend to the defendant, the person
compounded with ; in other words, that it was the object of the statute to
punish and restrain the parties using such color, and availing themselves
of the pretence of such offence, for the pm-pose of exaction, and not the
party who was the object of such exaction. And such indeed, by compar-
ing the language of the 4th sec. of this statute, by which the penalties are
created, with the language of the 3d sec., by which the prohibition is de-
clared, appears to have been the true sense and intention of the legislature.
The " making composition," the " taking money reward or promise of re-
ward for himself, or the use of another," which are made so highly penal
1 So far as regarded this objection, the facts of the case on the motion for a new tnal
were stated to be these. Eagleton was indebted to several pei-sons, and amongst othera
to Earner & Co. in 9GoL Os. 8d. (the sum now recovered), and was arrested by them for
that sum. The plaintiff Williams and Clarence his partner were bail for Eagleton in
that action, and afterwards surrendered him into custody in discharge of themselves.
Eagltton had disclosed to his creditors certain transactions between him and the plain-
tiff, wliich, if true, were usurious : in consequence of which a qui tam action was brought
in the name of Hedley, the present defendant, against Williams ; pending which the
compromise in question took place, by virtue of wliich the sum of 965/. Os. M. was,
■with the consent of HeiUey, paid by Clarence, for Williams, to PLimer & Co., as for
Eagleton's debt and as liis money ; and the proceedings in the penal action were gotten
rid of by entering up judgment of nonsuit against the common informer for not proceed-
ing to trial ; and Eagleton was discharged as from Eamer & Co's suit. Eagleton how-
ever continued in custody at the suit of other creditors; and afterwards became bankrupt,
in consequence of such imprisonment, as of a time before the payment of the money to
Eamer & Co. This money the assignees recovered from Hedley the plaintiff in the qui
tarn action, as money of Eagleton's received by him to their use, and paid over by his
authority to Eamer & Co. after Eagleton's bankruptcy. — Reporter's Note.
SECT. III.] WILLIAMS V. IlEDLEY. 513
iu the party guilty of those offences by the 4th sec. of tne statute, are niis-
demeauors contrary to the true iutent aud meaning of the act, as declared
in the immediately preceding sections ; in which the only offence specifi-
cally prohibited is the " informers or plaintiffs compounding or agreeing
with any person or persons offending or surmised to offend against any
penal statute, etc." ; and not " the being compounded or agreed with, as a
defendant, in such information or suit." And in Pie's case,^ Lord IIouart
considers this statute in tlie same point of view ; viz., "as made for the ease
of the subject, and for the avoiding and preventing of vexations by infor-
mations." Assuming, however, that the defendant, the person compounded
with, is not within the express prohibitions and penalties of the act, it is
still contended, that as the act of the defendant co-operated with that of
the plaintiff in producing the mischief meant to be prevented and restrained
by the statute in question, it is so flir illegal, on the part of the defendant
himself, as to preclude him from any remedy by siiit to recover back money
paid by him in furtherance of that object ; and that if he be not therefore
to be considered as strictly i)i pari delicto with the plaintiff", he is at any
rate particeps criminis, and in that respect not entitled to recover from his
co-delinquent money which he had paid him in the course and prosecution
of their mutual crime. But although this rule applies (as was said by
Lord Mansfield, in Smith v. Bromley^), "if the act be in itself immoral,
or a violation of the general laws of public policy:" yet in the case of
other laws, " which are calculated for the protection of the subject against
oppression, extortion, and deceit;" Lord Mansfield lays down that "if
such laws be violated, and the defendant take advantage of the plaintiff's
condition or situation, then the plaintiff shall recover." And in the case
of Browning v. Morris,^ Lord Mansfield displays and enforces this distinc-
tion ; and refers to the case of Jaques v. Golightly in C. P. before Lord
Chief Justice De Gkey, where the same principles were adopted by the
Chief Justice in the determination of that case. In respect to the criminal
offence of compounding, the plaintiff Williams was the person whose situa-
tion was taken advantage of by the other party to the composition; against
which party the prohibitions and penalties of the statute of the 18 Eliz. are
particularly levelled. It is no answer to this that Williams the plaintiff
had been criminal in another matter, and towards another person, viz.,
Eagleton, in the usurious dealings with him ; for that criminality was per-
fectly collateral to the offence of compounding now under consideration ;
and his very consciousness of those usurious dealings, and the dread of the
consequences which might result therefrom, laid him more completely at
the mercy of Hedley, and enabled him to effectuate the extortion which is
the foundation of this action. Indeed if the objection oi particej^n criminis
were allowed to hold in its full extent, none of the cases above mentioned
could have been determined ; nor could the party paying iisurious interest
1 Hutt. 36. 2 Do„gi_ (396^ n. 3 Covvp. 792.
VOL. II. — 33
514 SMITH V. CUFF. [CIIAP. V.
recover back the excess beyond legal interest, as he is constantly allowed
to do ; and which is particularly taken notice of and urged by Lord Mans-
field in his judgment in the case of Browning v. Morris. Upon the au-
thority, therefore, of the cases above cited, as applied to the fiicts of
the case before us ; and founding ourselves upon the distinction taken
and relied upon in those" cases in favor of the party for whose benefit
the provisions of the law which has been violated were peculiarly
made, and of whose situation advantage has been unduly taken ; we
are of opinion that this action was, under the circumstances of this
case, maintainable; and therefore that the rule for a new trial must bo
discharged.
SMITH V. CUFF.
In the King's Bench, April 29, 1817.
[Reported in 6 Maule ^ Selwij7i, IGO.]
Assumpsit for money paid, had, and received, and on an account stated.
Plea, non assumpsit. On the trial before Lord Ellexborough, C. J., at
the London sittings after Easter term, 1816, the plaintiff w^as nonsuited,
subject to the opinion of the court upon the following case : —
In July, 1815, the plaintiff, who was a trader, became insolvent, and at
a meeting of his creditors, at which the defendant was not present, offered
them a composition of 10s. in the pound. The following memorandum of
agreement, bearing date the 1st of August, 1815, was accordingly entered
into : —
"We, the undersigned creditors of Thomas Smith, do agree to accept
a composition of 10s. in the pound on our respective debts, the same to be
secured by bills of exchange for 8s. in the pound, at two months, drawn by
Mr. Smith and accepted by ]\Ir. Beckwith, and by other bills, accepted
only by Smith, for 2s. in the pound, at twelve months."
The defendant, at tlic time of the making of this agreement, was a
creditor for 435/. 12s. 8d., and as such was applied to by Messrs. Clutton,
the plaintiff's attorneys, to come into the composition and sign the agree-
ment ; but at that time he refused, saying he must first see the plaintiff.
On the 2d of August the defendant wrote to the plaintiff the following
letter : —
"2d August, 1815.
"Sir, — Messrs. Clutton & Co. have called on me twice; not meeting,
have left word will cull to-morrow morning at eight o'clock. Merely
apprise you shall give them the same answer ; will have a commission of
SECT. III.] SMITH V. CUFF. 515
haiikrui^tcy, or payment of the whole by instalments. So, if anything
fresh to say, had better let me know previous to that time.
(Signed) " J. Cuff, Jun."
On the 3d of August the defendant again wrote to the plaintilf, as
follows : —
" 3d August, 1815.
"Sib, — Messrs. Harben & Co. have presented a paper to sign for a
composition, which have refused to accede to. It now only remains to
take the steps stated before, as it is only waste of time to wait longer.
(Signed) " Jos. Cuff & Co."
" Merely write this to apprise you the state of the affairs. My debt was
evidently contracted when well known to yourself of your insolvency."
In consequence of this communication, the plaintiff agreed to give the
defendant two promissory notes, one for 174^. 5s. Id., and the other for
43/. lis. 3d., to make up the full amount of his debt; which two promis-
sory notes, one dated the 25th of July, 1815, at nine months after date,
for value received, the other bearing the same date and of the like import, at
thirteen months after date, were made by the plaintift' and delivered to the
defendant ; but there was no evidence at the trial when these notes were
so made and delivered.
On the 7th of August the defendant signed the agreement of composi-
tion, and on the 11th a bill of exchange for 174/. 5s. Id., drawn by the
plaintiff and accepted by Beckwith, and also a promissory note for 43/. lis.
Sd., made by the plaintiff conformably to the last-mentioned agreement,
respectively dated the 1st of August, 1815, were delivered to the defend-
ant for the full amount of 10s. in the pound on the whole of his said del)t ;
and he then executed a release with the other creditors. By this instru-
ment, after reciting that Smith stood indebted to the re-lessees in the
several sums set opposite to their respective names, which he was unable
to satisfy, and had therefore applied to them to accept a composition of
10s. in the pound, to be secured by bills of exchange for 8s. in the pound
(drawn and accepted as in the agreement mentioned), and by promissory
notes for 2s. in the pound (drawn as in the agreement mentioned), and
which they had consented to take in full satisfaction of their respective
debts ; the several parties to those presents, in consideration of the said
bills of exchange and promissory notes being given to them respectively at
or before the sealing and delivery of those presents, the receipt whereof
they thereby respectively acknowledged, remised, released, and discharged
Smith, his heirs, executors, and administrators of and from all and all
manner of action, suit, causes of action, bills, bonds, debts, etc., claims and
demands whatsoever, both at law or in equity, which against Smith each
or every of them then had or thereafter might have by reason of all and
every the debts to them respectively due and owing from Smith, or by
516 SMITH V. CUFF. [chap. V.
reason of any other matter, cause, or thing whatsoever, from the beginning
of the world uuto the day next before the day of the date of those presents
(save only the aforesaid bills of exchange and promissory notes) ; and the
said several creditors did for themselves severally, and for their respective
heirs, executors, and administratoi-s, etc., covenant, in pursuance of the
terms of the release, not to bring actions, etc., against Smith. Proviso, that
if Beckwith and Smith, or one of them, should not duly pay their bills for
8s. in the pound, or if Smith should not duly pay his promissory notes for
2s. in the pound, the release and covenants of the creditors whose bills or
notes should not be paid should be void. Beckwith's acceptance for 8s. in
the pound on the defendant's debt was duly paid. The plaintiff's note for
the remaining 2s, in the pound was not due at the time of the trial. The
note for 174/. 5s. Id. given by the plaintiif to the defendant was, about two
months before it became due, indorsed and delivered by the defendant to one
Douglass, with whom he had previous dealings in trade, and who gave him
his acceptance for the amount, that being more negotiable than a promis-
sory note. About a month before it became due, the defendant wrote to
the plaintiff as follows : —
" 25th March, 1816.
" SiR^ — Since seeing you I resolved to let the matter in question take
its course, merely apprise you the parties who have got it will enforce the
matter ; therefore, of course you will be prepared to prevent personal
inconvenience. (Signed) " Jos. Cuff & Co."
The note was at Douglass's bankers when it became due, and was never
returned to the defendant, but was put by Douglass into the hands of the
defendant's attorney in the present action, he having been recommended
to him by the defendant. An action was accordingly brought upon it;
and the plaintiff, on the 3d of May, 1816, before the commencement of the
present action, paid the full amount and interest, with costs, and the debt
was immediately paid over by the attorney to Douglass. The present action
is brought to recover the said sum of 174Z. 5s. Id., the excess beyond the
said composition of 10s. in the pound.
If the court should be of opinion that the plaintiff is entitled to maintain
the action, a verdict to be entered for the plaintiff; if otherwise, the non-
suit to stand.
Comyn for the plaintiff.
Campbell, contra.
Lord Ellenborough, C. J. This is not a case of par delictum; it is
oppression on one side, and submission on the other ; it never can he
predicated as par delictum when one holds the rod and the other bows
to it. There was an inequality of situation between these parties : one
was creditor, the other debtor, who was driven to comply with the terms
which the former chose to enforce. And is there any case where, money
SECT. III.] GIST V. SMITH. 517
having been obtained extorsively, and by oppression, and in fraud of the
party's own act as it regards the other creditors, it has been held that it
may not be recovered back] On the contrary, I beheve it has been uni-
formly decided that an action lies.
Bayley, J. The reason assigned in Smith v. Bromley for that decision
was, that the party who insisted on payment was acting with extox'tion and
oppressively, and in the teeth of that which he had agreed to accept. And
does not this reason apply to the present case? The conduct of the
defendant here is that of one taking undue advantage of the plaintiff's
situation and endeavoring to extort from him by oppression that which he
stipulated not to demand.
HoLROYD, J. With respect to the objection to the form of action, this is
money paid to the order of the defendant ; or in other words, money had
and received by him through the medium of the person to whom by his
order it was paid. Unless it may be recovered in this form, the law would
be giving effect to a transaction which it condemns as unlawful because
unjust.
Per curiam, Judgment for the plaintiff }
GIST, ETC., V. SMITH.
In the Court of Appeals of Kentucky, in Equity, March 6, 1880.
[Reported in 78 Kentucky Reports, 367.]
D. W. Lindsey for appellant.
Carroll and Barbour for appellee.
Judge CoFER delivered the opinion of the court.
There is some controversy in this case as to the facts, but for the pur-
poses of this opinion we shall assume the facts to be as claimed by the
appellants.
In November, 1872, W. L. Gist borrowed of Jacob S. Smith the sum of
$3748.70, and executed his note for $3835, bearing ten per cent interest
from date, and payable in one year.
Gist paid on the note, March 1, 1874, $692.50; March 1, 1875, $540,
and in January, 1876, $3755.20.
The note embraced $86.30 in excess of the sum loaned, and interest was
paid on the amount of the note at ten per cent per annum from the time
the loan was made until the debt was discharged in full by the payment
made in January, 1876.
Gist transferred to his wife his supposed right to reclaim the usuiy paid
to Smith, and thereupon Gist and wife brought this suit.
They claim that, as the interest paid and the amount deducted from the
1 Hortou V. Riley, 11 M. & W. 492, accord. — Ed.
518 GIST V. SMITH. [chap. V.
note exceeded ten per cent on the amount loaned for the period during
which the loan was continued, the whole interest was forfeited, and that
they are entitled to recover back all that was paid in excess of the sum
actually loaned.
The court below gave them a judgment for the excess paid over ten per
cent, and not content with that, they prosecute this appeal.
The loan was made while the conventional interest law of March 14.
1871, was in force.
That act made it lawful to contract, in writing, for the payment of any rate
of interest for the loan or forbearance of money not exceeding ten per cent.
But section 5 provided : " That if any rate of interest exceeding the rate
authorized by the first section of this act shall be charged, the whole inter-
est shall be forfeited ; and if the lender in such usurious contract refuse,
before suit brought, a tender of the principal without interest, he may, in
any suit brought on such contract or assurance, recover the principal, but
shall pay the cost of such suit."
Counsel for Smith contend that the statute, although it declares that if
more than ten per cent interest be contracted for the whole interest should
be forfeited, does not declare the contract for interest to be void, and that
the contract not being void, but only subject to forfeiture, the forfeiture
may be waived, and is waived, unless it be taken advantage of in the mode
pointed out in the statute, i. e., by a tender of the principal before suit
brought.
We cannot accept the conclusion reached as correct. To so construe the
statute would be to render the provision for a forfeiture of the interest of
no practical benefit.
By the express words of the statute, the tender provided for must be
made before suit is commenced. Suit may be commenced on the day suc-
ceeding that on which the debt falls due, and the debtor has no right to
pay before the day on which the debt falls due ; so that, in order to take
advantage of the forfeiture, he must see the creditor on the very day the
debt matures and tender the money. This would be often impracticable,
and the debtor will so generally be unable to make the tender that we can-
not suppo.se the legislature intended to make the right to insist upon the
forfeiture depend upon a tender of the principal on the very day the debt
matures.
Usury laws are made to protect the weak against the strong, and should
not receive a construction which will deprive all persons of their protection,
except sucl) as may be able to meet their engagemenls on tlie day of their
ni.iturity.
Moreover, tlie language of the act clearly indicates tliat tlie only jturpose
of the provision in regard to tender was to subject the usurer wlio sliould
refuse tlic i)rincii)al, wiicn tendered, to the cost of the suit in addition to
tlie fi.rfeiture of all the interest. The language is, "the whole interest
SECT. III.] HAYNES V. KUDD. 519
shiill be forfeited ; " and if the lender, etc., refuse, before suit brought, a
tender, etc., he " shall pay the cost of such suit."
Counsel next contend that a voluntary payment is a waiver of the for-
feiture, and that Gist, having paid the debt and interest, cannot recover
back more than the excess over ten per cent. In this we think they are
right.
There is a plain distinction between a provision in a statute that a con-
tract for interest above a certain rate shall be void as to the whole interest
contracted for, and a provision that the whole interest shall be forfeited.
A forfeiture may be waived by the person in whose favor it is declared,
and money paid upon a contract which the obligee might have resisted as
forfeited should be presumed to have been paid, because the person paying
had elected to waive the forfeiture.
But money paid upon a contract declared by statute to be void is not
paid under any contract at all, it is paid without consideration, either good
or valuable, and may be recovered back, unless the transaction is of such a
character that the law will not aid either party, which is not the case as to
cue who pays usurious interest.
Wherefore, the judgment is affirmed.^
JAMES B. HAYNES, Respondent, v. JAMES H. RUDD, Appellant.
In the Court of Appeals of New York, June 1, 1886.
[Reported in 102 Neiv York Reports, 372.]
Appeal from judgment of the General Term of the Supreme Court, in
the fourth judicial department, entered upon an order made the second
Tuesday of June, 1883, which affirmed a judgment in favor of plaintiff
entered upon a verdict. Reported below.^
The nature of the action and the material facts are stated in the opinion.
The case is reported on a former appeal in 83 N. Y. 253.
T. W. Collins for appellant.
W. R. Mason for respondent.
Miller, J. The plaintiff seeks to recover in this action the amount of a
promissory note given by him upon the settlement of a claim by defendant,
that plaintiffs son, who was in defendant's employ, had, at different times,
stolen his money.
The complaint alleged that the note was given in order to compound and
^ One paying a rate of interest that is lawful but wliicli could not have been recovered
because of a statute requiring a contract calling for more than six per cent per annum to
be in writing, is not entitfed to restitution. Marvin v. Mandell, 125 Mass. 562. — Ed.
2 30 Hun, 237.
520 HAYNES V. RUDD. [CHAP. V.
settle a supposed felony or misdemeanor, and that the said note was ex-
torted from the plaintiff and his wife by threats of public charges against
the character of their son, and that the note was executed in fear of the
same. It was transfeiTed by plaintiff before maturity to a bona fide holder,
and plaintiff paid it.
On a former appeal to this court in this action, it was held that where a
person has voluntarily, i. e., without the coercion of force or threats, given
his promissory note to compound a crime, and has been compelled to pay
the same, it having been transferred to a bo7ia fide holder for value before
maturity, he cannot maintain an action against tlic one to whom the note
was so given to recover back the moneys paid.
In the opinion of the coui't by Folger, C. J., the rule is laid down that
if there was simply a compounding of felony, both plaintifl' and defendant,
on an equality, agreeing that the plaintiff should give his written promise
to the defendant, and that, therefore, the defendant should give his oral
promise to conceal the felony and abstain from prosecuting it, and withhold
the evidence of it, then they were in pari delicto, and tlie law will leave
them where it finds them ; and it is said that " to give the plaintiff any
claim to recover, he must show that he was in such plight from the force
or threats of the defendant as that he was in duress, and gave the note
without being willing to, to escape from the predicament in which that
force or those threats put him."
Upon the last trial, which is the subject of review on this appeal, the case
appears to have been presented by the plaintiff on the theory that threats
were used, and duress and undue influence exercised by the defendant upon
the plaintiff and his wife, by means of which the note was obtained, in-
dependent of the question whether the note was executed for the purpose
of compounding a felony, and that thus a case was established against the
defendant.
The plaintiff in this action insists that the facts establish that the parties
did not stand iii jmri delicto ; that the defendant took undue advantage of
the plaintiff and his wife, of the circumstances in which the plaintiff stood,
surrounded as he was by his family ; that this operated as duress and un-
due influence to coerce, and, as the jury found, did coerce the plaintiff's
will and destroyed the equality between the parties, and induced the plain-
tiff to give the note in question.
In none of the cases cited Ijy the respondent's counsel to sustain the
position contended for was the jtrccise point presented whether the parties
stood in pari delicto when the compounding of a felony entered into and
constituted part of the consideration of the contract, and tliey, therefore,
are not decisive of the question. Dunham v. (iriswold,' Turley v. Edwards;*
Foley V. Green ; ' Williams v. Bayley.*
1 22 Week. Dig. 296. 2 i -\Vust. Kcp. 450.
8 21 Ceut. L. J. 175. * 35 L. J. Ch. 717.
SECT. III.] HAYNES V. KUDD. 521
Whether the parties stood in pari delicto depends upon the fact whether
the evidence proved thcat the note in question was given for compoundiu"- a
felony. If the testimony established tliat such was the case, then bntli
parties must be regarded as equally in fault, and the court will not lend
its aid to either in enforcing a contract of such a character because it is
illegal and void. While fraud, duress, and undue influence employed in
procuring a contract for the payment of money may vitiate and destroy
the obligation created, and render it of no effect, and the party who has
been compelled to pay money on account thereof may maintain an action
to recover the same, such a right does not exist and cannot be enforced
where the consideration of the contract, thus made, arises entirely upon or
is in any way affected by the compounding of a felony. When this element
enters into the contract, it becomes tainted with a corrupt consideration
and cannot be enforced. The correctness of this rule was recognized by
the trial judge in his charge to the jury. He charged, among other things,
as follows : " Was the note a legal contract or an illegal contract ^ It was
an illegal contract and void between the parties, if it was given upon an
agreement to suppress the evidence of a crime alleged to have been com-
mitted, equally as if it were given upon an agreement to suppress the evi-
dence or refrain from prosecuting a crime whicli had been in fact committed."
He also charged, "If he impressed upon the plaintiff the idea that he
would thus refrain and would conceal the crime if he would give the note,
but that he would not refrain if he did not give the note, it was an illegal
contract." He further charged, upon being requested, that if the note was
given simply to compound a felony, the plaintiff could not recover. So far
the charge of the judge was entirely correct, and the case was properly
presented to the jury in this respect.
The judge, however, was requested to charge as follows : " That if the
compounding of a felony entered into and formed a part of the considera-
tion of the note, the plaintiff could not recover." And also, " that if the
motive of the plaintiff in giving the note was in part for the purpose of
compounding a felony, he would not be entitled to recover."
Both of these requests were refused and exceptions taken to the rulings
of the judge. We think there was error in each of the refusals. W^ithin
the rule already laid down, if the consideration of the note was in any way
affected by the compounding of a felony, or it entered into the same, or
such a motive actuated the plaintiff in any respect, then the contract was
illegal, and should not be upheld. In such a case the contract was vicious
and corrupt, and in violation of law as much as if compounding a felony
had been the entire consideration. The element of illegality constituted a
part of the contract, thus vitiating the whole, and it could not be rejected
because duress, undue influence, or threats were also blended with it.
It cannot be said that these requests were covered by the charge which
had already been made, for while such charge comprehended the principle
522 ASTLEY V. REYNOLDS. [CHAP. V.
that the note might be avoided if given for compounding a felony, the
refusals to charge left it to be inferred that this element might constitute
a portion of the consideration without affecting its validity. This was
clearly wrong, and the defendant was entitled to the charge in accordance
with the requests made, and the judge erred in refusing the same.
We cannot agree with the doctrine that if the plaintiff was influenced by
the duress of the defendant, and at the same time both parties intended
the compounding of a felony, that they were not in 2)a7-i delicto. It is
enough that the vice of compounding a felony was a part of the contract,
operating upon the minds of both parties, and thus placing them upon an
equality, to render the contract nugatory and of no effect.
For the errors of the judge in refusing to charge as requested, without
considering the other questions raised, the judgment should be reversed
and a new trial gi-anted, with costs to abide the event.
All concur, except KuGEii, C. J., not voting.
Judgment reversed.
ASTLEY V. REYNOLDS.
In the King's Bench, Michaelmas Teem, 1732.
[Reported in 2 Strange, 915.]
In an action for money had and received to the plaintiff's use, the case
reserved for the consideration of the court was, that above three years ago,
the plaintiff pawned plate to the defendant for 20/. and at the three years'
end came to redeem it, and the defendant insisted to have 10/. for the in-
terest of it, and the plaintiff tendered him 4/., knowing 4/. to be more than
legal interest. That the defendant refusing to take it, they parted ; and
at some months' distance, tlie plaintiff came and made a second tender of
the 41., but the defendant still insisting upon 10/. the plaintiff paid it and
had his goods, and now brings this action for the surplus beyond legal
interest.
Reeve, Filmer, and Draper for plaintiff.
Marsh aiid Fazakerley for defendant.
Per curiam, The cases of payments by mistake or deceit are not to be
disputed ; but this case is neither, for the plaintiff knew what he did, in
that lies the strength of the objection ; but we do not think the tender of
the Al. will hurt him, for a man may tender too much, though a tender of
too little is bad ; and where a man does not know exactly what is due, he
must at his peril take care to tender enough. "We think also, that this is
a l)ayment by compidsion ; the plaintiff might have such an immediate
want of his goods that an action of trover would not do his business : where
i\\Q r\\\c volenti non fit injuria is applied it must be where the party had
SECT. III.] LINDON V. HOOPER. 523
his freedom of exercising his will, which this man had not ; we must tsiko
it he paid the money relying on his legal remedy to got it back again.
The plaintiff had judgment; and the defendant dying pending the
argument, judgment was ordered to be entered mmc pro tunc.
LINDON V. HOOPER.
In the King's Bench, February 12, 1776.
[Reported in Cowper, 414.]
Upon a rule to show cause why a new trial should not be granted in this
case, Mr. Justice Ashhurst read his report as follows : This was an action
for money had and received brought by the plaintiff against the defendant
Hooper, who had distrained the plaintiff's cattle. The plaintiff insisted he
had a right of common, and demanded his cattle to be restored, which the
defendant refused to do, unless the plaintiff would pay him 205. for the dam-
age done. Upon this, the plaintiff paid the money in dispute for the re-
lease of his cattle; and the action is brought for that money. At the
trial the question was, whether the plaintiff was entitled to recover back
the money so paid, by this species of action 1 My opinion was, that he
could not ; for it would be extremely inconvenient and hard if a defendant
should upon his parol be obliged to come and defend himself against any
right that a plaintiff might set up, without giving him notice ; and accord-
ingly the plaintiff was nonsuited.
Mr. Ilansfield showed cause.
Mr. Morris and Mr. Buller, contra.
Lord Mansfield now stated the case from the report of Mr. Justice Ash-
hurst, from which I collected this additional circumstance not before men-
tioned ; namely, that the defendant agreed to return the money if the
plaintiff should make out his right ; and then his lordship proceeded to
deliver the opinion of the court as follows : —
The particular circumstances of a promise or agreement to return the
money, if the plaintiff should make out his right, do not distinguish this
case from the general question : they relate to an amicable settlement
which never took place.
The question then is general : Whether the proprietor of cattle distrained,
doing damage, who has paid money to have his cattle delivered to him, can
bring an action for that money as had and received to his use %
Though, after the cause is brought before the jury, an objection to turn
the plaintiff round, if the merits can be fully and fairly tried in the action
brought, is unfavorable ; yet, if founded in law, it must prevail. We were
extremely loath to allow it without full consideration.
524 LINDON V. HOOPER. [CIIAP. V.
The present case is singular, and depends upon a peculiar system of
strict positive law.
Distraining cattle doing damage is a summary execution in the first
instance. The distrainer must take care to be formally right; he must
seize them in the act ; upon the spot ; for if they escape, or are driven out
of the land, though after view, he cannot distrain them. He must ob-
serve a number of rules in relation to the impounding and manner of
treating the distress.
The law has provided two precise remedies for the proprietor of cattle
which happened to be impounded.
1st, He may replevy ; and, if he does, upon the avowrj-, he mnst spe-
cially set out a right of common, or some other title, as a justification of the
cattle being where they were taken. Or,
2dly, If he does not choose to replevy, but is desirous to have his cattle
immediately re-delivered, he may make amends, and then bring an action
of trespass for taking his cattle ; and particularly charge the money so paid
by way of amends as an aggi'avation of the damage occasioned by the tres-
pass. If to such an action the distrainer pleads that he took them doing
damage, the plaintiff must specially reply the right or title which he
alleges the cattle had to be there.
If instead of an action of trespass, an action to recover back the money
so paid by way of amends might be brought at the election of the plaintiff,
the defendant would be laid under a great difficulty. He might be sur-
prised at the trial ; he could not be prepared to make his defence ; he
could not tell what sort of right of common or other justification the plain-
tiff might set up. The plaintiff might shift his prescription as often as he
pleased ; or he might rest upon objections to the regularity of the distress.
The plaintiff can never be suffered to elect to throw such a difficulty upon
his adverse party. Besides, as applied to the subject-matter of this ques-
tion, the action for money had and received could never answer the equi-
table end for which it was invented and deserves to be encouraged. For
the point to be tried and determined in this action is. Whether the plain-
tiff's cattle trespassed upon the defendant's landl That may depend upon
the plaintiff's right, or the defendant's right, or the fact of trespassing; or
it may depend upon mere form. If the distress was irregular, the amends
must be recovered back again. So that, allowing the owner of the cattle
to sul)Stitute this remedy in lieu of an action of trespass would, as be-
tween the parties, be unequal and unjust, and ui)on principles of policy
would produce inconvenience. It would break in upon that branch of the
conmion and statute law wiiich relates to distresses. It would ci'cate in-
convenience, by leaving rights of common open to repeated litigation, and
by depriving posterity of the benefit of precise judgments upon record.
As to prescriptive rights of common, the money paid by way of amends
is a special damage; and is always so alleged in the declaration of tres-
SECT. III.] LINDON V. HOOPER. 525
pass, which in every view is the action pecuharly proper for this kind of
question.
An action for money bad and received is a new experiment. No prece-
dent has been cited. This objection alone would not be conclusive ; but
upon principles of private justice and public convenience, we think tlie
method of proceeding used and approved for ages, in the case of distresses,
ought to be adhered to.
There is a material distinction between this and the instances alhided to
at the bar, where the plaintilF is allowed to waive the trespass, and bring
the action for money had and received. In those instances, the relief is
more favorable to the defendant. He is liable only to refund what he has
actually received, contrary to conscience and equity. In this, informalities
in taking or treating the distress would avoid the amends, though the de-
fendant had a right to distrain. But, which is more material, in those in-
stances, the plaii^tiff, by electing this mode of action, eases the defendant
of special pleading, and takes the risk of being surprised upon himself. In
this, he eases himself of the difficulty and pi'ecision of special pleading, and
the burthen of proof consequent thereupon, and exposes the defendant to
uncertainty and surprise.
The case of Feltham v. Terry, Pasch. 13 Geo. 3, B. R., relied on in the
argument, was a case of goods taken in execution, and sold under a warrant
of distress upon a conviction. The conviction was quashed ; consequently
there could be no justification. The plaintiff, by bringing his action for
money had and received, could only recover the money for which the goods
were sold. But, if trespass had been brought, the defendant must have
pleaded specially, and the plaintiff might have recovered damages far be-
yond the money actually received from the sale of the goods. So, where
goods are taken in execution which are not the property of the persons
against whom execution is taken out ; the owner may waive the trespass, and
bring his action for the amount of the money which the goods sold for.
We think this case not within the reason of any, in which hitherto the
plaintiff has been allowed to waive the trespass, and bring this action. Wo
think, to allow it would not tend to the furtherance of liberal justice, but
would be a prejudice to the defendant, and in a public view inconvenient.
Therefore, we agree that the plaintiff was rightly nonsuited at the trial.
Per C^ir. Rule for a new trial discharged}
1 In Newsome v. Graham, 10 B. & C. 234, the plaintiff was allowed to recover on a
count for money had and received, money paid bj' him to the defendant as his landlord
for the rental of premises from which he was afterwards ejected by A., and for the use of
which, during the time that he held of the defendant, he was compelled to pay A. mcs^ie
profits, it not appearing that the defendant, at the time when the action was brought or
at the time of trial, claimed to have any title to the land. — Ed.
526 BROWN V. McKINALLY. [CHAP. V.
NIBBS V. HALL.
At Nisi Prius, before Lord Kenyon, C. J., February 11, 1794.
[Reported in 1 Espinasse, 84.]
This was an action of assumpsit for use and occupation of certain rooms
in the City Chambers. Plea of the general issue, with notice of set-oflF.
One article of the set-off which the defendant proposed to give in evi-
dence, arose in the following manner. The defendant being indebted to the
plaintiff for the rent of other chambers belonging to the plaintiff, which he
then occupied, the plaintiff demanded payment at the rent of twenty-five
guineas per year. The defendant insisted that he had taken them at
twenty guineas per year only, and offered to pay at that rate. The plain-
tiff' refused to take it, and threatened to distrain if not paid at the rate of
twenty-five guineas ; and the defendant, in order to avoid the distress, paid
at that rate, and now brought a witness to prove that the chambers for
which he had paid at the rate of twenty -five guineas were really let at
twenty guineas ; so that he had overpaid the plaintiff, and now proposed to
set off the overplus, as having been paid by compulsion, and in his own
wrong.
Lord Ken'yox was of opinion that this could not be deemed a payment
by compulsiou, as the defendant might have by a replevin defended himself
against the distress ; that therefore, after a voluntary payment so made, that
he should not be allowed to dispute its legality ; and therefore rejected the
evidence.
Garrow and for the plaintiff.
Erskine for the defendant.
BROWN V. McKINALLY.
At Nisi Prius, before Lord Kexyox, C. J., February 17, 1795.
[Reported in 1 Espinasse, 279.]
Assumpsit for money had and received.
Plea of the general issue.
The plaintiff and defendant, being in the same line of business, entered
into an agreement by which the defendant agreed to sell the plaintiff all his
old iron, except bushell iron, which was of an inferior quality, at 9/. per ton.
The iron he delivered was mixed iron of an inferior value, being part
bushell iron, and charged the full value of the best sort ; the plaintiff
ol))ecting to the charge, the now defendant brought an action for it. The
plaintiff paid the full demand so made on hiui, at the same time telling the
SECT. III.] DEW V. PARSONS.
527
defeiidiiut that lie did it witliout prejudice, and meant to bring an action
to recover back the ovcrphis so paid.
This action was brouyht for that purpose.
When the case was opened by the plaintifTa counsel, Lord Kenton said,
that such an action could not be maintained. That to allow it would be to
try every such question twice, for that the same legal ground that would
entitle the plaintiff to recover in the present action would have been a good
defence to the action brought against him by the present defendant ; at
which time, and in which manner he should have proceeded : that money
paid by mistake was recoverable in assumpsit, but here it was paid volun-
tarily, and so could not be recovered under the circumstances of this case.
Erskine and Reader for the plaintiff.
Garroio for the defendant.
DEW V. PAESONS.
In the King's Bench, May 11, 1819.
[Reported in 2 Barnewall ^ Alderson, 562.]
Declaration for work and labor, and money counts. Plea, general issue,
and notice of set-off. The action was brought by the plaintiff as sheriff of
the county of Hereford, to recover from the defendant, an attorney residing
in a neighboring county, 4s. Id., being 3s. fit/, claimed by the plaintiff at
the fee on a warrant issued by him, in a cause in which the defendant was
attorney, and Id. for the postage of a letter. The defendant claimed to
set off either the whole or part of a sum of 10s. Qd. which his clerk had
paid to the plaintiff on the issuing three warrants under one writ against
three defendants. The clerk paid it, on its being claimed by the plaintiff
as of right, for the warrants, and on mentioning it to the defendant, the
latter disapproved of it, and said that it was an imposition. The plaintiff
claimed a fee of 3s. Q,d. for every warrant when issued for an attorney
residing out of his county, and 2s. Qd. when issued for an attorney resid-
ing within the county ; and it appeared that such fees had for many years
usually been paid in the county of Hereford. If he was entitled only to
2s. 6f/. on each warrant, then there was a balance of one penny due to him ;
if he was entitled to less than that sum, then he was not entitled to re-
cover. At the trial before Holrotd, J., at the last summer assizes for the
county of Hereford, the plaintiff objected that this was a payment made
with a full knowledge of all the facts, though under a misapprehension as
to his legal liability, and therefore that it could not be recovered back, and
consequently was not the subject of set-off The learned judge admitted
the evidence, and was of opinion that the plaintiff was entitled to charge
only id. for each warrant, and the balance of the account being then against
528 DEW V. PAiiSONS. [chap. \.
the plaintiff, he was nonsuited. A rule visi having been obtained in last
Michaelmas term for setting aside this nonsuit,
Cross now showed cause.
W. E. Taunton, contra.
Abbott, C. J. Tliis question comes before the court in a different shape
from those which existed in the cases cited. For this is in substance like
an action by the sheriff to recover his fees ; and in that case, he must by
law make out his title to them ; and if he does not do so, the defendant
will be entitled to set off the sum which has been overpaid. AVe do not
feel ourselves at liberty to say that the usage which is stated to have pre-
vailed is sufficient to have repealed an act of parliament. At the common
law, the sheriff was not entitled to make any charge fur executing a writ,
and therefore, if he has any claim, it must be under the provisions of some
statute. That brings us to the consideration of the statute 23 Hen. 6, c.
9 ; and the question is, whether the word " warrant " there used, in respect
of which the sum of ^d. only is to be paid, means such a warrant as that
for which the charge which is the subject of the present action is made.
And it seems to me that it does, and that the sheriff was only entitled to
make the charge of 4c7. for each of these warrants. But if this were not
so, it will not materially affect our judgment on the present occasion. For
if this case be not within the 23 Hen. 6, c. 9, the sheriff would not be en-
titled to anything. The charge in this case may be reasonable, but it is
contrary to law, and cannot, therefore, be allowed. The consequence is,
that this rule mast be discharged.
HoLROYD, J.^ I am of the same opinion, that this nonsuit must stand.
If the defendant has paid more money than the sheriff is allowed by law to
demand as his fee, the sheriff cannot retain that surplus, and must (if re-
quired so to do) return it to the defendant. It follows, therefore, that the
defendant has a right of set-off on the present occasion. Now the sheriff
is not entitled to any fees, except those given to him by some act of par-
liament ; and the only act within which these warrants seem to be included
is the 23 Hen 6, c. 9. By that act, the sheriff is empowered to take only
4c?. for each warrant. If so, unless some other act of parliament can bo
found to authorize a larger payment, the sheriff can make no further claim,
for no usage can prevail against a positive enactment of the legislature. It
is said, that larger sums than those mentioned in the 23 Hen. 6 have been
allowed in different cases. But there is not any case whicli shows that
those sums have been allowed upon a claim made by the sheriff or his
bailiff; and perhaps those cases can be explained thus. The plamtiff may
desire a special bailiff to be named for the purpose of executing the writ,
and for that he may be liable to pay a reasonable sum to the sheriff, and
that sum may have been allowed to him on his taxation of costs, as being
an expense reasonably incurred by him in the course of a cause. In that
1 Bayley, J., had left lliu court.
SECT. III.] MOEGAN V. PALMEK.
529
way, perhaps, the allowance of one guinea, levy money, mentioned in some
of the cases, may be supported. But this case is very distinguishable, and
seems to me to fall within the very words of the statute.
Best, J. Where the sheriff makes a claim for fees he is to be strictly
confined to the limits allowed by the law ; but a party who has actually
paid the fees claimed in the course of a cause, may be in a very different
situation from the sherifT who has claimed them, and may have such al-
lowed to him in taxation of costs as he may reasonably be expected to pay.
No act of parliament authorizes the fees claimed in this case ; and it is
quite clear, at common law, that the sheriff is entitled to no compensation.
Besides, if independently of any act of parliament it were competent for
him to establish a claim by usage, still no sufficient usage has been proved
to exist in this case ; for that which is stated to exist is quite absurd, being
3s. 6d. for each warrant, if the attorney resides within the county, and 2^
6c?. if he resides out of it. If, however, it had been a reasonable usage, it
could not have been set up against an act of parliament. The case sttnds
thus : if it be within the statute 23 Hen. 6, the sheriff is entitled to id. ;
if it be not, he is entitled to nothing. Then, as to the question of set-off^
I am clearly of opinion that the defendant is entitled to set off what he has
overpaid to the sheriff; for this is not like Brisbane v. Dacres,^ the case of
a voluntary payment. In that case, both parties were equally cognizant of
the situation in which they stood ; but here that was not the case. Upon
the whole, I think the nonsuit was right, and that this rule must be
discharged. j^^i^ discharged.
MOEGAN V. PALMER.
In the King's Bench, May 18, 1824.
[Reported in 2 Barnewall Sf Creswell, 729.]
Assumpsit to recover a sum of 4s. paid by the plaintiff, who is a publican
"in the borough of Great Yarmouth, to the defendant as mayor of that
borough, and claimed by the defendant as having become due to him on
granting to the plaintiff his annual license as a publican. At the trial
before Garrow, B., at the Norfolk Lent assizes, 1823, a verdict was found
for the plaintiff, subject to the opinion of this court on the following case.
In the month of September, 1822, a meeting was duly held by the defendant
(who, in his character of mayor, was then one of the justices of the peace
in and for the borough), and by another justice of the peace in and for the
borough, for the purpose of renewing the annual licenses of the publicans
in the borough. The plaintiff attended at that meeting in order to obtain
a renewal of his license, and the clerk to the justices, who is also town clerk,
1 5 Taunt. 143.
VOL. II. — 34
530 MORGAN V. PALMER. "[CHAP. V.
and clerk of the peace for the borough, on granting to the plaintiff his license,
demanded a sum of 12s. CJ., which the plaintiff accordingly paid. The
clerk then paid over to the defendant a sum of 4s., part of the sum of
12.S. Gd. which he had received, on the account and by the authority of the
defendant as mayor ; he also paid over a sum of 2s., other part of the said
12s. Gc/., to the serjeant at mace, and retained the sum of is. Gd. as clerk
of the justices, and 2s., the residue thereof, to his own use as clerk of the
peace. Great Yarmouth is an ancient and immemorial borough. Until
the reign of Queen Anne, the chief ofl&cers of the corporation were two
bailiffs. Various charters, from the reign of King John to that of Queen
Amie, granted to the bailiils all ancient and usual perquisites, tines, emolu-
ments, and profits, which tliey had before by pretext of any incorporation,
or by reason or pretence of any prescription, use, or custom held, enjoyed,
or used. By stat. 1 Anne, st. 2, c. 7, it was enacted, " that when the style
of the coi-poration should be changed from that of bailiffs, aldermen, bur-
gesses, and commonalty, to that of mayor, aldermen, burgesses, and com-
monalty ; the mayor and his successors should have and enjoy all the same
fees, perquisites, privileges, and jurisdictions, as the bailiffs had before
lawfully and rightfully claimed and demanded." By a charter in the year
following, the style of the corporation was changed, and it was thereby
provided, that the first mayor therein named and his successors should have
and enjoy the same powers, privileges, fees, perquisites, and profits, as the
bailiffs in any manner had before held and enjoyed within the liberties and
precincts of the said borough. Xo entries were made of the sums paid for
licenses in the books of the corporation, but as far back as living memory
went, that is to say, from 1765 up to the time of bringing this action, the
same sum of 4s. had been uniformly received by the mayor for the time
being from every publican applying for a license, as his usual and accustomed
fee for granting it. No notice of tho action was given previously to its
commencement. The questions for the opinion of the court were, first,
whether the plaintiff was bound to give notice of the action previously to
bringing the same ; second, whether the defendant was entitled to receive
the said sum of 4s. ; ^ third, whether tlie plaintiff; having paid the said sura
of 4s. in the manner above stated, was entitled to recover it back in this
action. The case was now argued by
Rolfe for tho plaintiff.
Dover, contra.
Abbott, C. J. I am of opinion that the plaintiff is entitled to recover
in this action. As to the second point, whether the defendant was entitled
to notice of action ; if it be conceded that the money was taken by him m
his character of mayor, independent of that of a justice of peace, then tl.e
24 G. 2, c. 44, does not apply. If it was taken in the character of justice,
or if it were equivocal in which capacity the claim was made, then according
J So much of tlie case as relates to this question has been omitted, — Ed.
SECT. III.] MORGAN V. I'ALMER. 531
to the case of Briggs v. Evelyu, if tlie act were done colore officii, notice of
action must have been given. But the object of that statute was to protect
justices accidentally committing an error in the discharge of tlieir official
duties, and not where the thing is done for their own personal benefit. This
money was taken for the latter purpose, and that removes all doubt as to
the necessity of notice. Then as to the last point. It has been well argued
that the payment having been voluntary, it cannot be recovered back in an
action for money had and received. I agree that such a consequence would
have followed had the parties been on equal terms. But if one party has
the power of saying to the other, "that which you require shall not be done
except upon the conditions which I choose to impose," no person can contend
that they stand upon anything like an equal footing. Such was the situation
of the parties to this action. The case is therefore very different from
Brisbane v. Dacres, and our judgment must be in favor of the plaintiff,
Baylby, J. Then, as to the question whether the money can be recovered
in this action ; if it had been a free and voluntary payment, there might
be some difficulty ; but I entirely agree with the observations of my Lord
Chief Justice, which show, that the payment was by no means voluntary.
There is also another ground upon which it might be put, viz., that as the
defendant had a discretion to exercise in granting or refusing licenses, it
would be against public policy to allow him to receive fees, by which ho
might be biassed in the exercise of that discretion ; and if so, the objection
that this was a free and voliuitary payment is inapplicable. As to the
notice, I am of opinion, that as mayor, the defendant was not entitled to it.
The statute does not apply, unless the act was done by him as a justice ;
but in the latter capacity he had no pretence for claiming anything. It is,
therefore, impossible to say that the money was taken colore officii. Tlie
case of Irving v. "Wilson ^ puts the question upon the right principle. There,
an excise officer had improperly made a seizure of certain goods, and refused
to restore them until the plaintiff paid him a sum of money; and it was
held, that that money might be recovered in an action for money had and
received, and that it was not necessary to give notice of the action, under
the 23 G. 3, c. 70, § 30. For these reasons, I think that the plaintiff must
have the judgment of the court.
LiTTLEDALE, J. As to the notico which it is said should have been given,
even supposing the defendant to have made the claim in his capacity of
justice of peace, that was not done in the execution of his office. Where a
justice orders a man to be apprehended, or his goods to be seized under a
warrant, that is done in the execution of his office ; and if the goods were
afterwards sold, it might be necessary to give notice before an action could
be commenced to recover the proceeds. Notice might also be requisite if
the party paid money in order to be relieved from some threatened proceeding
by a justice ; but here, it cannot be pretended that the thing was done in
1 4 T. R. 485.
532 HILLS V. STREET. [CIIAP. V.
the execution of the defendaut's office. If, according to the usual course,
the plaiutiff was entitled to a license, the defendant was bound to grant it.
The granting it was in the execution of his office, but the claim of a fee for
so doiug certainly was not. Then comes the objection, that this was a
voluntary payment. In Bilbie v. Lumley, Brisbane v. Dacres, and Knibb v.
Hall, both parties might, to a certain extent, be considered as actors. Here,
the plaintiff was merely passive, and submitted to pay the sum claimed, as
he could not otherwise procure his license. 1 think, therefore, that he is
entitled to recover it back in this action.
Judgmmt for the plaintiff}
HILLS V. STREET.
In the Common Pleas, June IC, 1828.
[Reported in 5 Biwjham, 37]
Assumpsit for money had and received by the defendant to the use of the
plaintiff. At the trial before Gaselee, J., Middlesex sittings after Michael-
mas term last, it appeared that the defendant, as broker for H. Elwes, had
on the 28th of April, 1827, distrained on the plaintiff for 230/. 10s. alleged
to be due to Elwes for seven quarters' rent.
The defendant, upon written requests made by the plaintiff from time to
time, and on condition of his paying the charges for distraining, forbore to
remove or sell the goods distrained, the plaintiff engaging to pay the ex-
pense of keeping a man in possession. Accordingly, the rent not having
been satisfied, the plaintiff, upon the defendant's instances, paid him on
the 18th of May 8^. 5s. as broker's commission on a distress for 230/. 10s.
(at the rate of 5/. for the first hundred, and 2/. 10s. for every hundred
over), 4/. 4s. for the expenses of a man in possession twenty-one days, and
\l. for drawing the form of the above-mentioned requests. On the 11th of
June he again paid the defendant for the expenses of the man in possession
twenty-four days, 4/. 4s., and for drawing four more requests U., making
altogether 19/. 5s., which the plaintiff now sought to recover, as having been
illegally demanded and paid.
The man in possession having on the 23d of June quitted the house for
the purpose of procuring a van to remove the goods distrained, the plaintiff
refused to let him in again. In consequence of this a second distress was
made on the IGth of July, when the plaintiff replevied.
Early in the transaction the plaintiff iiad alleged that only six quarters'
rent were due, but it did not distinctly appear at the trial whether before
or at the time of the payments made to the defendant the plaintiff had
expressed any intention to replevy. It appeared, however, that he had
1 The opinion of Uuluoyd, J., has been omitted. — Ed.
SECT. III.] HILLS V. STREET. 533
objected to the amount of the defendant's charge, when the defendant said,
" The law allowed it, and he would have it."
For the defendant it was contended, that the charge for making the dis-
tress was reasonable and legal, and that whether the charge for keeping the
man in possession were legal or not, yet that having been incurred at the ex-
press request of the plaintift" for his sole accommodation, and having been
paid voluntarily with a full knowledge of all the facts, it could not now
be recovered at the hands of the defendant. Brisbane v. Dacres.^
The leai'ned judge thought, that as the distress in respect of which the
charges were made had never been brought to a conclusion, the goods not
having been sold, but having actually been replevied under a subsequent
distress, it was doubtful whether the charge for distraining could be sus-
tained (the stat. 57 G. 3, c. 93, s. 6, applying only to cases where the goods
distrained are sold), and whether the payment could be esteemed volun-
tary; which he told the jury it could not, if at the time it was made the
plaintiff intended to replevy.
Whereupon a verdict was found for the plaintiff for 51. 10s. on the sum
paid for making the distress, with leave for the defendant to move to set it
aside and enter a nonsuit instead. Accordingly
Wilde, Serjt., in Hilary term last obtained a rule nisi to that effect ;
against which
Andreivs, Serjt., was to have shown cause ; but the court called on
Wilde to support his rule.
Best, C. J. Although under the circumstances of this case I would
allow for the legal expenses of making the distress and inventory, yet this
rule must be discharged ; for that allowance could not be sufficient to turn
the scale in the defendant's favor, the prothonotary stathig to us, that on
taxation of costs the broker's charge for distraining would not be permitted
to exceed one guinea.
But I am cleai'ly of opinion that this was not a voluntary payment.
The broker is in possession of goods distrained for rent. The party dis-
trained on is anxious that the goods should not be sold, and that time may
be allowed him to pay the rent. The broker requires, as a condition of the
indulgence, that he shall be furnished with a written request not to sell,
and an undertaking to pay the expenses ; this is given and enforced, but it
is clear that it is given under an apprehension the sale would proceed un-
less the demand were complied with ; and it is impossible to call a payment
under such circumstances, voluntary. If the payment were not voluntary,
the plaintiff is entitled to recover back all that was paid improper^ which
exceeds in amount the verdict he has obtained. Lindon v. Hooper only
decides that an action for money had and received does not lie to recover
back money paid for the release of cattle damage feasant, though the dis-
tress were wrongful ; replevin or trespass being the proper form of action
1 5 Taunt. 143.
534 ASIIMOLE V. WAINWRIGHT. [CHAr. V.
to try such a question. But the proeent question could not have been
tried in replevin. There is no form of action but assumpsit fur money had
and received, in which a party can recover money paid, as this was, under
duress.
Gaselee, J, The broker is the agent of the landlord, and must look to
him for these expenses. But the broker, acting as a public officer, has no
right to charge for giving time.
The rest of the court concurred, and the rule was discharged.
ASHMOLE V. WAINWRIGHT and Another.
In the Queen's Bench, February 4, 1842.
[Reported in 2 Queen's Bench Reports, 837.]
Assumpsit for money had and received and on an account stated. The
particular claimed 51. 5s., paid on, etc., by plaintiff to defendants, "in
order to obtain possession of certain goods belonging to the plaintiff then
in the custody of the defendants, and which said sum," etc., " was paid by
the plaintiff under protest that he was not liable to pay the same or any
part thereof, or, if liable to pay some part thereof, that the sum claimed
by the defendants, namely," etc., "was an exorbitant and unreasonable
claim."
Plea : Non assumpsit. Issue thereon.
On the trial, before Coleridge, J., at the Westminster sittings after
Hilary term, 1841, it appeared that, in October, 1839, the defendants, who
were common carriers, conveyed certain goods for the plaintiff from Wal-
pole to London, under circumstances which induced the plaintiff to expect
that they would make no charge for so doing. The goods, being brought
to London, remained some time in the defendants' warehouse, after which,
on the plaintiff sending for them, the defendants refused to give them to
him except upon his paying 51. 5s. for carriage and warehouse room. The
plaintiff insisted that he was not liable to pay anything ; and that, if
he was liable to pay anything, the demand was exorbitant. In an in-
terview which the plaintiff's attorney had with one of the defendants at
their place of business, the latter declared that he would receive nothing
less than the whole sum demanded. The attorney called again a few
days afterwards, and said to the same defendant, "I suppose you still
refuse to take anything less than the whole sum ; " to which the defend-
ant said, " Of course I do." The attorney then paid him the 51. 5s.,
and told him that he paid it under protest as to both points. The
goods were then given up to the plaintiff. The learned judge put three
questions to the jury: 1. Was the plaintiff to pay anything? 2. Was
SECT. III.] ASHMOLE V. WAINWRIGIIT. 535
51. 5s. an unreasonable sura 1 3. If 51. 5s. was unreasonable, what was
a reasonable sum 1 The jury found that the plaintili' ought to pay some-
thing ; that the demand of 51. 5s. was unreasonable ; that the reasonable
charges were 18s. for carriage, and 12s, Gc^. for warehouse room. The
learned judge was of opinion that the plaintiff ought to have tendered that
or a larger sum : and a verdict was entered for the defendant, with leave
for the plaintiff to move to enter a verdict for 3^. 1-ls. Gd., if the court
should be of opinion that a tender was unnecessary.
In Trinity term last, Bi/les obtained a rule nisi accordingly; against
which
Kelli/ and Cockburn now showed cause.
Erie and Byles, contra.
Lord Denman, C. J. As is veiy commonly the case, each party has
taken pains to put himself in the wrong. After carriage of the goods with-
out express bai-gain, the owner, the plaintiff, says that the carriers, the
defendants, were to carry them for nothing, and he demands the goods ;
the defendants claim what must now be taken to be a very exorbitant
charge, and refuse to deliver the goods except on payment of 51. 5s. ; the
plaintiff says, I will pay it under protest that I do not owe you so much.
The jury find that the proper sum is \l. 10s. Gt/. To the extent of the
difference the defendants have received the plaintiff's money ; is there any-
thing in the circumstances to deprive him of his remedy as for money
received by them to his use % It is said that he ought to have tendered
the jjroper charges : the answer is, that they ought to have told him the
proper charges. I can see no other circumstance to deprive the plaintiff
of his action in this form : the cases relied on for the defendants are all
distinguishable ; the utmost extent to which they go is that the action
does not lie where there is another adequate remedy ; and, as to equity,
when the defendants had received such notice as they did, both from the
attorney and from the language of the particulars, it was their duty to
pay back the sums which they had no right to retain.
Patteson, J. I should be sorry to throw any doubt upon the point
that an action for money had and received will lie to recover money paid
on the wrongful detainer of goods ; it would be very dangerous to do so,
the doctrine being in itself so reasonable, and supported by so many author-
ities. In Lindon v. Hooper ^ replevin was as convenient a mode of recov-
ering the money as the action for money had and received : but replevin
would not lie here. My only difficulty has arisen from the necessity for a
tender. Astlcy v. Reynolds ^ at first sight seemed to be somewhat in
favor of the present defendants, for there a tender was made : and I am
not prepared to go the length of saying that, where a party simply denies
that anything is due, then pays, and afterwards sues for tlic whole sum,
he may turn round at the trial and recover part ; for his objecting to the
1 1 Cowp. 414. 2 2Stra. 915.
536 WAKEFIELD V. NEWBON. [CIIAP. V.
whole would be like a deception. In this case, therefore, had there been
nothing to show that the plaintiff ever demanded less than to have the
goods without any payment, according to his first claim, I should hardly
have said that the action would be maintainable. But, on the further con-
versation and the subsequent applications, an allegation of overcharge is
added to the at first total denial : the defendants always demanded the
whole ; the plaintiff did not altogether insist that nothing at all was due ;
then the particulars of demand distinctly show that the action was
brought, not merely to recover the whole, but to recover the part over-
charged, if the plaintiff was liable at all. After such a notice the proper
course for the defendant was to pay the difference into court.
Coleridge, J. I never doubted that an action for money had and re-
ceived might be maintained to recover money paid on the wrongful de-
tainer of goods. Skeate v. Beale^ is not inconsistent with this doctrine.
That was an action on a written agreement ; duress of goods was pleaded ;
and the court held that, for that purpose, there was no distinction be-
tween an agreement and a deed, so that the agreement must be held
to have been voluntary. It is very true that some words in the judgment
go beyond the point decided ; but they were not necessary to the decision,
which is quite consistent with our decision in the present case. Here the
only question is on the necessity of tendering or demanding back a specific
sum. Taking the particulars altogether, they are clearly meant to convey
notice of the plaintiff's intention to recover all or such part as he might be
entitled to : and, after hearing the argument, I am satisfied that no tender
of any specific sum was necessary. The defendants began w^ong by
making an exorbitant demand : in whose knowledge, if not in theirs, did
the proper charges lie? Surely the duty of ascertaining the proper charge
lay on them m the first instance. Looking at the nature of the demand,
it could not be for the plaintiff to ascertain the specific sum.
Rule absolute.
WAKEFIELD v. NEWBON and Others.
In the Queen's Bench, April 1G, 1844.
[Reported in 6 Qutfu's fjcnch /Reports, 27G.]
Assumpsit fur nmiify had and received, and on an account stated.
Plea : No7i assvin/tsif.
(Jii the trial, before Lwd Denman, C. J., at the London sittings after
Easter term, 184.3, the following facts appeared, according to the statement
made by the Lord Chief Justice in delivering the judgment of the court as
after mentioned.
1 11 A. & E. 983.
SECT. III.] WAKEFIELD V. NEWBON. 537
" This action was brought by a mortgagor against the mortgagee's solici-
tors to recover a sum of money which the defendants had exacted from the
plaintiff by refusing to redeliver his title deeds after a reconveyance to him
of the mortgaged property on payment of principal and interest, unless the
plaintiff would also pay the amount of the defendants' bill of costs. The
verdict was taken for HI. 12s. 5d., the amount so exacted : but the defend-
ants had leave to move for a nonsuit if the court should think the action
not maintainable, or for reduction of the damages to 51. if the jury were
wrong in deducting certain items from the bill. One of the charges was in
respect of the reconveyance ; but other parts of the bill arose exclusively
from the relation of the mortgagee to the defendants, as client and
solicitors."
In Trinity term, 1843, Piatt obtained a rule nisi accordingly. In Easter
term, 1844,
Knowles and Miller showed cause.
Piatt and Butt, contra.
Cur. adv. vult.
Lord Denman, C. J., in this term, May 27th, delivered the judgment of
the court. After stating the facts as ante, p. 539, his lordship proceeded
as follows : — •
We are of opinion that the defendants were clearly wrong in withholdino-
the deeds till the latter sum was paid ; for it appears from HoUis v.
Claridge,^ and is the known practice, that a mortgagee cannot, by handin'^
over deeds to his attorney, create a new lien against the mortgagor in
respect of a debt of his own.
But an objection to the maintenance of the action was drawn from cer-
tain expressions employed by me in a late judgment of this court, Skeate
V. Beale.2 That case was not alluded to in Parker v. The Great Western
Railway Company,^ in the Common Pleas, where that court, in conformity
to a late decision of the Exchequer ^ and to some former decisions of this
court, laid down the principle that money extorted by duress of the plain-
tiff's goods, and paid by the plaintiff under protest, may be recovered in an
action for money had and received. In this court, we were required, in
considering a case of Ashmole v. Wainwright,^ to give some attention to
the doctrine in Skeate v. Beale.^ It was by no means unsupported by
some ancient authorities ; but perhaps it was laid down in terms too gen-
eral and extensive. The case itself, however, was satisfactorily shown to be
distinguishable, both from Ashmole v. Wainwright ^ and from the present
case : and the principle just stated must be taken as well established and
generally recognized. It may produce the inconvenience of a circuity of
action : but the evil of allowing extortion by means of a wrongful detention
of goods would be much greater ; and the wrong-doer has no right to com-
1 4 Taunt. 807. 2 il A. & E. 983, 991. 3 7 m. & G. 25.3, 292.
4 Smith V. Sleap, 12 M. & W. 585. 5 2 Q. B. 8.37.
538 CLOSE V. PHIPPS. [CIIAP. V.
plain when he is compelled to restore money which he was warned that he
had uo right to extort. The case is wholly ditfercut from that class where
the parties have come to a voluntary settlement of their concerns, and
have chosen to pay what is found due.
A third defence was rested on tlie case of Bamford v. Shuttle worth,^
where a purchaser had paid the agreed price of an estate to the vendor's
attorney, but was holden to have no right of action against him for the
price, wheu the purchase went off for defect of title. But there the at-
torney received the money merely as agent for his client, to whom alone he
was responsible for it ; here the attorneys insisted on withholding the
deeds for their own benefit, to secure the payment of their own bill. It is
a mistake to say that there is no privity between the plaintiff and defend-
ants. The privity in the original transaction was indeed between the de-
fendants and their client ; but, when the defendants compelled the plaintiff
to part with money in order to regain possession of his rights, the law
created a privity between them, and implied a promise to repay what the
defendants should appear to have improperly obtained.
It follows that the verdict must stand for the plaintiff, the damages
being reduced to 6^. 12s. 5d., the difference between the whole sum
received by the defendants and the U. due from the plaintiff to the
defendants. -^w^e accordingly.
CLOSE V. PHIPPS.
In the Common Pleas, June 4, 18-44.
[Reported in 7 Manning ^' Granger, 686.]
Debt, for money had and received, and upon an account stated. Plea,
never indebted.
At the trial, before Cresswell, J., at the last Somersetshire assizes, the
following facts appeared.
The plaintiff was the administratrix cum testamento annexo of her late
husband, who had mortgaged certain property to one Welch to secure 1000/.
and interest. In April, 1843, the defendant, as the attorney for Welch,
called in the mortgage-money, and gave the plaintiff notice, that if it were
not immediately paid he should proceed to sell the property under a power
contained in the mortgage deed. The plaintiff thereupon employed one
Yining, an attorney, to obtain another loan in order to enable her to pay
oil" the mortgage ; but he did not succeed in so doing. In the mean time
the defendant, on behalf of Welch, advertised the property for sale on the
2(1 of October following. On the 20th of September one James, anotlier
attoniey employed by the plaintiff, called, on her behalf, upon the defendant
1 11 A. & E. 926. •
SECT. III.] CLOSE V. niipps. 539
in order to pay off the principal and interest due to Welch, and the defend-
ant's costs. The defendant claimed the further sums, — of \5l. for three
months' interest in advance; 29^. 8s. \M. alleged to have been paid by the
defendant to Vining for his costs; and 13s. 4c/. which the defendant claimed
as due to him from the plaintiff's son, who had some interest in the property.
The defendant refused to stop the sale or deliver up the deeds, unless the
amount (45/. 2s. 2d.) was paid to him. That sum was accordingly paid
under protest ; and the present action was brought to recover it back.
It was contended, on the part of the defendant, that the plaintiff could
not recover the money, at least in the present form of action, as it had been
paid with a full knowledge of all the facts, and, therefore, must be taken to
have been paid voluntarity. The learned judge was of opinion that the
plaintiff" was entitled to recover, and directed a verdict to be entered for her
for the full amount, but reserved leave to the defendant to move to enter a
nonsuit or to reduce the damages.
Channell, Serjt., in last Easter term, obtained a rule nisi accordingly.
Atcherley, Serjt., now showed cause. As a general rule it is undoubtedly
true, as established by Bilbie v. Lumley,^ and that class of cases, that money
paid with a full knowledge of all the foots cannot be recovered back. So,
where money has been paid under a legal adjudication upon the precise point.
But the present case falls within a third class of cases, in which it is held
that, where money is paid, though with knowledge or means of knowledge
of all the facts, but by compulsion, such as duress of the person or of goods,
it may be recovered back. It has been always held that a bond or agree-
ment might be avoided by reason of duress of the person ; although some
doubts appear to have been entertained whether the same rule applied
where there was only duress of goods. In Skeate v. Beale,^ which was an
action on an agreement to pay money, the defendant pleaded that the
plaintiff" had distrained upon his goods for more than was due, and threatened
and was about to sell the goods, whereupon the defendant made the agree-
ment to avoid such sale. The plea was held bad ; but the court, in giving
judgment, pointed out that there might be a diff"erence where an action for
money had and received was brought to recover money paid under such
circumstances and under protest. And in Astley v. Reynolds,^ it was ex-
pressly held that where money is extorted by duress of goods, it may be
recovered in assumpsit for money had and received. This case was confirmed
m The Duke de Cadaval v. Collins ; * and the principle was also recognized
by the Court of Queen's Bench this term, in Wakefield v. Newbon.^ In
Knibbs V. Hall ^ the money was not paid under protest ; nor in Lindon v.
Hooper,'' where in the absence of such protest, an action for money had
and received was held not to lie to recover back money paid for the release
J 2 East, 469. 2 11 A. & E. 983 ; 3 P. & D. 597.
8 2 Stra. 915. * 4 A. & E. 858 ; 6 N. & M. 324.
5 6 Q. B. 276. 6 1 Esp. 84. 7 Cowp. 414.
540 CLOSE V. PHIPPS. [chap. v.
of cattle wrongfully taken as damage feasant. [Cresswell, J. That was
to avoid circuity of action. Tixdal, C. J. All the cases were brought
before this court, in Parker v. The Great Western Railway Company,^ where
the company having made unreasonable charges for the carriage of goods to
one particular carrier, who had paid them under protest, we held that he
mi<»ht recover the amount of such payments in an action for money had and
received, upon the ground that such payments were not voluntary, but were
made in order to induce the company to do that which they were bound to
do, without requiring such payments. In that case we relied a good deal
upon V. Pigott,^ which is strongly in point here. There is some course
of practice, I believe, in the court of chancery, where a mortgagor wishes
to pay off the mortgage-money suddenly, and the mortgagee does not wish
to receive it, under which the matter is sent to the Master to see upon what
1 7 M. & G. 253. In Parker v. The Great Western Eailway Company, Tindal, C. J.,
after denying the right of the defendant to make the charges in question, proceeded as
follows : —
"But it remains to be considered whether the money so paid can be recovered by the
plaintiff, in this action.
" It was argued for the defendants that it cannot ; for, that the payments were made
voluntarily, with a full knowledge of all the circumstances ; and that the plaintiff was
not compelled to make those payments, but, in each case, must be considered as having
made a contract with the company to pay them a certain sum of money as the consideration
for the carriage of his goods ; and that having made such contracts, he cannot now
retract, and recover the money paid in pursuance of them. In support of this argument
Knibbs v. Hall (1 Esp. 84), Brown v. M'Kinally (1 Esp. 279), Bilbie v. Lumley
(2 East, 469), and Brisbane v. Dacres (5 Taunt. 143), were cited. On the other side, it
was urged, that these could not be considered as voluntary payments ; that the parties
were not on an equal footing ; that the defendants would not, until such payments were
made, perform that service for the plaintiflf which he was entitled by law to receive from
them without making such payments ; and that, consequently, he was acting under coer-
cion ; and in support of this view of the case. Dew v. Parsons (2 B. & A. 562; 1 Chit.
295), Morgan v. Palmer (2 B. & C. 729; 4 D. & R. 283), and Waterhouse v. Keen
(4 B. & C. 200 ; 6 D. & R. 257), were referred to.
" We are of opinion that tlie payments were not voluntary. They were made in order
to induce the company to do that which they were bound to do without them ; and for
the refusal to do which, an action on the case might have been maintained, as was
expressly decided in the case of Pickford v. The Grand Junction Railway Company.
And, in this respect, the case very much resembles that of v. Pigott, mentioned by
Lord Kenton, in Cartwright v. Rowley (2 Esp. 723). That was an action brought
to recover back money paid to the steward of a manor, for producing at a trial some
deeds and court rolls, for which he had charged extravagantly. The objection was
taken that the money had been volunfcuily paid, and so could not be recovered back
again ; but, it apjicaring that the party could not do without the deeds, so that the money
was paid through necessity and the urgency of the case, it was held to be recoverable.
"We think the [.rineiple upon which that decision proceeded is a sound one, and strictly
applicable in tlie present case, and that the defendants cannot, by the assistance of
that rule of law on whirli they relied, retain the money that they have impioperly
rcceiveil." — Ed.
2 Cited by Lor<l Ki:ny<.n, C. J., in Cartwiight v. Rowley, 2 Esp. 723.
SECT. III.] GULLIVEK V. COSENS. 541
terms au arrangement can be made as to the payment of some interest in
advance.] Here, the money was called in by the mortgagee.
Talfourd, Scijt , who was to have supported the rule, admitted he could
not do so after the decision in Parker v. The Great Western Railway
Company. •
TiNDAL, C. J. This, I think, is quite as strong a case as that referred to.
The money was obtained by, what the law would call, duress; as the plaintiff
was obliged either to pay it, or to suffer her estate to be sold, and incur the
expense and risk of a bill in equity.
Per Curiam ; Ji^le discharged.
GULLIVER V. COSENS.
In the Common Pleas, May 31, 1845.
[Reported in 1 Common Bench Reports, 788.] ,
Debt for money had and received to the plaintiff's use. Plea, nunquam
indebitatus.
At the trial before Alderson, B., at the last assizes for Sussex, it ai>
peared that a flock of sheep belonging to the plaintiff having strayed upon
the defendant's land, they were distrained, as damage feasant, by the
defendant, who refused to restore them except upon payment of 21. I5s.
9d., at which amount he estimated the damage they had done. The
plaintiff paid the 21. 15s. 9c/. under protest, and to recover it brought this
action.
Eor the defendant it was insisted, upon the authority of Lindon v.
Hooper, that the action was not maintainable ; and that where an exor-
bitant demand was made for compensation, the only remedy was replevin.
The learned judge directed a nonsuit, reserving to the plaintiff leave to
move to enter a verdict for the sum claimed, if the court should be of
opinion that the action was well brought. The actual damage done by
the sheep was estimated by the jury at 5s.
Sir T. Wilde, Serjt., in Easter term last, accordingly obtained a rule nisi.
Channell, Serjt., with whom was Johnson, now showed cause.
Bowling, Serjt., with whom was Bovill, in support of the rule.
TiNDAL, C. J. I am of opinion that the rule that has been obtained in
this case, to enter a verdict for the plaintiff, ought to be discharged. The
question at issue seems to me to depend upon the consideration, upon
which of the parties has the law cast the onus of estimating the amount of
damage done to the owner of the land % The party whose sheep have tres-
passed is in the first instance the wrong-doer ; it is therefore upon him that
the risk of estimating the amount of damage ought to rest, and not upon
the party who has suffered by the trespass. If the owner of the cattle
542 GULLIVER V. COSENS. [CIIAP. V.
elects to make a tender of sufficient amends before the distress, and the
distrainor refuses it, the latter becomes a wrong-doer ; but a tender after
distress does not entitle the owner to replevy his cattle. The rule of law
cannot be more clearly stated than is done by Lord Coke, in The Six
Carpenters' case ^ : " Vide the book in 30 Ass. pi.* 38,^^ John Matrever's
case. It is held by the court that if the lord or his bailiff comes to
distrain, and before the distress the tenant tendei's the arrears upon the
land, there the distress taken for it is tortious. The same law for damage
feasant, if before the distress he tenders sufficient amends ; and therewith
agi'ee 7 Ed. 3, 8 6.,* In the ]\Iaster of St. Mark's case ; and so is the
opinion of Hull to be understood in 13 Hen. 4, 17 h.* which opinion is
not well abridged in title Trespass, 180.^ Note, reader, this difference:
that tender upon the land before the distress makes the distress tortious ;
tender after the distress, and before the impounding, makes the detainer,
and not the taking, wrongful ; tender after the impounding makes neither
the one nor the other wrongful ; for then it comes too late, because then
the cause is put to the trial of the law, to be there determined. But
after the law has determined it, and the avowant has return irreplevisable,
yet, if the plaintiff makes him a sufficient tender, he may have an action
of detinue for the detainer after ; or he may, upon satisfaction made in
court, have a writ for the redelivery of his goods." It appears to me tliat
when the present plaintiff found he was too late to make a tender, so as to
entitle himself to replevy the sheep and to succeed in an action of
replevin, his proper course was to make a tender of sufficient amends to
cover the damage sustained ; and in the event of the defendant refusing to
accept the sum tendered and deliver up the sheep, he should have brought
detinue ; for they were held by the defendant merely as a pledge. In
that case the hazard of the sufficiency of the tender would fall, as it ought
to do, on the owner of the cattle. It has been urged that here a tender
was unnecessary, inasmuch as the sum demanded for compensation was
exorbitant ; that argument, however, as it seems to me, is answered by
saying that the risk of determining the real amount of damage is not by
law imposed upon the defendant. This I should be disposed to hold upon
principle, and independently of the authority of Linden v. Hooper, which I
am unable to get over, and which I am not aware has been overruled ; and
though cases have occurred in which it has been decided that an exces-
sive demand dispenses with a tender, yet those were cases where the law
made it incumbent on the defendant correctly to ascertain the amount of
his demand. The cases of Barrett v. The Stockton it Darlington Railway
Company, and of Barker v. The Great "Western Ivailway Company, range
themselves within this class. The cases of Knibbs v. Hall, and Skeate v.
1 8 Co. Rep. 147. ^ Yo. 179, Slantravers v. The Parson of Chase.
8 H. 7 E 3, fo. 8, pi. 17. ♦ H. 13 H. 4, fo. 17, pi. 14.
6 Fitzli. Al.r. tit. Trespas, pi. 180. Sec the explanation in 6 Ncv. & M. G13, n.
SECT. III.] GULLIVER V. COSENS. 543
Beale follow the doctrine of Lindoii v. Hooper. Upon authority, there-
fore, as well as upon principle, I am of opinion that the verdict which has
been entered for the defendant ought to stand.
CoLTMAN, J. I also think the law has with sufficient distinctness
pointed out the course which the plaintiff ought to have pursued. And
if he has brought a difficulty upon himself by dei)arting from that
course, he has no right to complain. The objection to bi-inging an action
for money had and received, instead of tendering amends and replevying, is
that which has been stated by my Lord Chief Justice ; namely, that it
would remove from the owner of the cattle the burthen of ascertaining
the precise amount of compensation due, and cast it upon the other party,
who, in the absence of a tender, is no wrong-doer. The case diilers essen-
tially from that of Parker v. The Great Western Railway Company.
There the company, by refusing to carry the plaintiff's goods without
being paid an exorbitant sum, in contravention of the provisions of the acts
of Parliament by which their concenis are regulated, became wrong-doers.
Nor can it be said that in this case the money was extorted by duress.
Duress of goods implies an unlawful detention of them ; which has not
occurred here, the sheep having been lawfully taken. I am imable to dis-
tinguish the present case from Lindon v. Hooper, and I know of nothing to
prevent its being treated as a subsisting authority. For these reasons I
think the rule should be discharged.
Maule, J. I also am of opinion that under the circumstances of this
case money had and received is not the proper form of action. The de^
fendant had an undoubted right to distrain the plaintiff'^s sheep, and to
keep them until the damage done was satisfied. If a sufficient tender had
been made before the impounding, the defendant would have been bound
to restore them ; otherwise not. The question is, whose duty it is to
ascertain the amount of damage sustained. If that duty were by law cast
upon the distrainor, it would manifestly be throwing a very inconvenient
burthen upon the innocent party. It seems to me to be quite clear that
this duty rests upon the party who inflicts, and not upon him who suffers,
the injury. That being so, the defendant is not a wrong-doer because he
may have too highly estimated the compensation due to him. It is said
that the plaintiff ought to be permitted to maintain this action, because he
is under the circumstances precluded from bringing a replevin. The
reason why he has not that remedy is, that he has sustained no wrong.
His proper course was to make a tender of sufficient amends ; and if the
defendant, upon such tender, refused to restore the sheep, to bring an
action of detinue, as suggested by Lord Coke in the Six Carpenters' case.^
The case of Anscomb v. Shore,'^ where it was held that an action on the
case lay not for the detention of the goods after a tender made of sufficient
amends, goes very far to show that money had and received is not main-
1 8 Co. Rep. 147. -' 1 Taunt. 261.
544 - STEELE V. WILLIAMS. [CIIAP. V.
taiuable in this case, iuasimich as it shows that the distrainor was not a
wrong-doer.
Ce{esswell, J. Tlie plaintiff in this case has brought an action for
money had and received by the defendant to his use. The defendant, in
answer, says the payment was made voluntarily, with full knowledge of all
the facts, and therefore it is not recoverable back. On the part of the
plaintiff it is suggested that the payment was made under a species of
duress, — a wrongful detainer of his sheep. According to the rule laid
down in the Six Carpenters' case, it appears that there has been no such
wrongful detainer of the plaintiff's sheep. That ground therefore fails.
The payment appears to me to have been made for the purpose of avoiding
all question or dispute as to the right to distrain. The plaintiff cannot,
therefore, now turn round and recover back the money which he so paid
upon an adequate consideration.
Eule discharged.
STEELE V. WILLIAMS.
In the Exchequer, May 7, 1853.
[Reported in 8 Exchequer Reports, 625.]
Action for money had and received for the use of the plaintiff'. Plea,
never indebted.
At the trial, before the judge of the Sheriff's Court of London, it appeared
that the action was brought by the plaintiff, an attorney, to recover from
the defendant, who was the parish clerk of St. jMary, Newington, the sum
of U. Is. M., paid by the plaintiff's clerk to the defendant, for fees claimed
in respect of searches made and extracts taken from the Register Book of
Burials and Baptisms in that parish. The plaintiffs clerk applied at the
defendant's house, where the registers were kept, for permission to search
them. lie told the defendant that he did not want certificates, but only
to make extracts. The defendant said, the charge would be the same,
whether he made extracts or had certificates. The plaintiff's clerk searched
through four years, was engaged two hours, and took twenty-five extracts,
namely, twelve burials and thirteen baptisms. He inquired of the defend-
ant what was his charge, and the defendant replied 3s. M. for each extract,
amounting in the whole to 4Z. 7s. 6(/., which the plaintiffs clerk then paid,
and took from the defendant the following receipt : —
St. Maky, Nkwington.
Twenty-five certificates, at 3s. M. each 4/. 7s. Gd.
Received — Wm. Williams, Parish Clerk.
Nuv. 17, 1852.
Name — Taylor.
SECT. III.] STEELE V. WILLIAMS. 545
The defoudaut said, the charge was for the rector, who paid him is. 3c/.
for keeping the books. No meutiou was made as to the amount of the
charge before the searclj. On the same day the phiintift' sent to the
defendant the following letter: —
Sir, — I have to request that you will forthwith repay me il. 7s. Gd.,
which you have this day compelled my clerk to pay you for his taking
extracts from the parish register of St. Mary, Newiugton, otherwise I shall
take proceedings for recovering the same, as you had no right to make the
charge. He searched for four years, and I have no objection to your
retaining the usual charges for searches, but no more. I request your
immediate attention. I am, etc., A. K. Steele.
To the above letter, the defendant returned the following answer : —
Sir, — I have to acknowledge the receipt of your letter of the 17th
instant, relative to the sum of il. 7s. Gd. paid by your clerk to me for
searches and copies of entries in the register books of this parish ; and in
answer have to state, that the searches and copies were made at your
clerk's express wish, and that he was not compelled to pay for the same,
but voluntarily paid the usual charges for what he obtained. He stated,
that he wanted certificates of all entries in the name of Taylor, between
1827 and 1830 inclusive ; and when he had searched found that the
number of these amounted to twenty-five, of which he made and retained
accurate copies, which he might have had certified under the hand of the
rector had he wished it ; but as solicitors, very frequently, when making
extracts from our registers, decline this on account of saving them expense
when making affidavits, I was not svirprised at his not requiring it. In
this instance you may, however, have the extracts certified by the rector,
if you wish it ; but as your clerk paid only the usual cliarges for what he
required, namely, Is. for each search, and 2s. Gd. for each certificate, I
cannot be fairly asked to return any part of the amount, and must decline
to do so. I am, etc., William Williams, Parish Clerk.
It was submitted, on the part of the defendant, first, that the defendant
was not the proper party to be sued, but the action should have been
against the rector ; secondly, that the claim was not illegal ; and thirdly,
that the payment was voluntary. It being, however, agreed on both
sides, that the question was one of law for the decision of the judge, he
decided that the payment was voluntary, and directed a verdict for the
defendant, reserving leave for the plaintiff to move to enter a verdict for
4:1. 7s. Gd., or any smaller sum, if the court sliould be of opinion that the
defendant was the proper party to be sued, that the demand was illegal,
and the payment not voluntary.
Willes, in the present term, obtained a rule nisi accordingly ; against
which,
VOL. n. — 35
546 STEELE V. WILLIAMS. [CIIAP. V.
Robinson showed cause.
Willes appeared iu support of the rule, but was not called upon.
Parke, B. The judge of the Sheritt"'s Court decided the matter of law,
and left it to us to say whether or not his decision is right. I think that,
upon the true construction of the evidence, the payment in this case was
not voluntary, because, in effect, the defendant told the plaintiff's clerk,
that if he did not pay for certificates when he wanted to make extracts, he
should not be permitted to search. The clerk had a perfect right, at all
events, to search, and during that time to make himself master, as he best
could, of the contents of the books ; and the defendant, in whose custody
they were, could not, because the clerk wanted to make extracts, insist on
his having certificates with the signature of the minister. For one shilling
he would be entitled to look at all the names in a particular year. He
would have no right to remain an unreasonable time looking at the book,
nor probably to require the parish clerk to put it in his hands, for it is the
duty of the latter to superintend the search, and keep a control over the
book. But if a person insists upon himself taking a copy, that is a different
matter; the statute only provides for a certificate with the name of the
minister, and for that he must pay an additional fee. It was, therefore, an
illegal act on the part of the defendant to insist that the plaintiff should
pay 3s. 6rf. for each entry of which he might choose to make an extract.
I also think that the defendant is the proper party to be sued. The doc-
trine laid down in Sadler v. Evans only applies to the legal receipt of fees.
But the case of Snowdon v. Davis shows, that if a person acting for another
insists on the payment of money on an illegal ground, he is the party to be
sued for it. Therefore, iu the first place, I think that there is evidence
that this payment was not voluntary, but necessary for the exercise of a
legal right ; and further, I by no means pledge myself to say that the
defendant woidd not have been guilty of extortion in insisting upon it, even
without that species of duress, viz. : the refusal to allow the party to exer-
cise his legal right, but colore officii. Dew v. Parsons certainly goes to that
extent. But it is not necessary to decide this case on that ground. The
rule will, therefore, be absolute to enter a verdict for the plaintiff for the
sum of 3/. 14s. GtZ.
Platt, B. I am also of opinion that the verdict ought to be entered for
the plaintiff. Under the 6 & 7 Will. 4, c. 86, s. 35, there are only two
things in respect of which the incumbent is entitled to fees, namely, for
a search and for a certified copy of the register. A fee of Is. is allowed for
a search throughout the whole period of the first year, and Is. Gc?. for every
additional year. Those are all the fees demandable in respect of a search.
With regard to taking extracts, no fee is mentioned, and the incumbent has
no right to tax any one for so doing. But, inasuuich as before the search
began the defendant told the plaintiff's clerk that the charge would be the
same whether he Jiiadc extracts or had certified copies, and under that
SECT. III.] STEELE V. WILLIAMS. 547
pressure the extracts were obtained, and it would liave been must dis-
honorable for the party, after having got the extracts, to refuse to pay, the
money so obtained may be recovered back. The defendant took it at his
peril ; he was a public officer, and ought to have been careful that the sum
demanded did not exceed the legal fee. As to the defendant being the
proper person to be sued, it is almost useless to make any observation.
He was not justified in taking the money, and is responsible for his own
illegal act.
Martin, B. I am entirely of the same opinion. The judge of the
Sheriffs Court considered the particular question, whether or not this was
a voluntary payment, and decided that it was ; but he goes on to state, that
if this court shall be of opinion that the defendant was the proper party to
be sued, and that the demand was illegal and the payment not voluntary,
we are to give judgment accordingly. I am clearly of opinion that the
defendant is the right person to be sued, though he acted on behalf of
another, who was the officer appointed under the act of Parliament. Any
person who illegally takes money under color of an act of Parliament is
liable to be sued for it, though the money is not to go into his own pocket.
It is different from a payment of money to an agent for the purpose of being
paid over to the principal, for there the payment is voluntary. Here the
money was paid by virtue of the office of the rector. Mr. Eobinso7i has
argued, that because the act of Parliament allows a fee for a search and for
a certified copy, but no fee is mentioned for taking an extract, it is com-
petent for the parish clerk to demand for it any fee he pleases. I am clearly
of opinion that he is not. If a person is authorized to receive money by
virtue of an act of Parliameijt, it is like a contract between the parties, that
the sum allowed shall be all which he is to receive, and he is as much bound
by the entirety of what he is authorized to take as he would be by the en-
tirety of a sum in a contract. The defendant was entitled to be paid for
a search and for a certified copy, but there was no intermediate payment.
As to whether the payment was voluntary, that has in truth nothing to do
with the case. It is the duty of a person to whom an act of Parliament
gives fees, to receive what is allowed, and nothing more. This is more like
the case of money paid without consideration, — to call it a voluntary pay-
ment is an abuse of language. If a person who was occupied a considerable
time in a search gave an additional fee to the parish clei'k, saying, " I wish
to make you some compensation for your time," that would be a voluntary
payment. But where a party says, " I charge you such a sum by virtue
of an act of Parliament," it matters not whether the money is paid before
or after the service rendered ; if he is not entitled to claim it, the money
may be recovered back.
Rule absolute to enter a verdict for the i^laintiff for 31. 14s. Gd.
548 BATES V. THE NEW YOKK INSUK.^TE CO. [CIIAP. V.
BATES V. THE NEW YORK INSUEAXCE COMPANY.
In the Supreme Court of Judicature of New Y'ork, October
Term, 1802.
[Reported in 3 Juhiison's Cases, 238.]
This was an action of assumpsit, for money had and received to the
plaintiffs use. Plea, non assmnpsit. At the trial the defendants waived all
.exceptions to the form of the action, and rested on the merits only.
Norman Butler subscribed for fifty shares in the New York Insurance
Company ; each share beiug of the value of 50 dollars. On the 22d day
of July, 1796, Butler assigned to the plaintiff all his right and interest in
the fifty shares. By the articles of association of the defendants, the sum
of 10 dollars on each share was payable at five different instalments ; on the
1st of May, 1796, the 20th of July, 1796, the 20th of January, 1797,
the 20th of July, 1797, and the 20th of January, 1798. It appeared by
the articles of association, that no transfer of any share could be permitted
or be valid, until all the instalments on such shares were paid. The two
first instalments were paid by Butler, and the three last by the plaintiff,
who regularly received a notice of such payment being due, from the secre-
tary of the company, directed however, to Norman Butler. It was also
proved by the secretary of the company, that on the 20th day of January,
1797, he knew of the assignment from Butler to the plaintiff; and that,
from that day to the 20th of January, 1798, three dividends were made,
amounting in the whole to 525 dollars, on the fifty shares ; which sum the
defendants had credited on three certain notes given by Norman Butler to
them. The first note was dated 3d of June, 1795, for 1,001 dollars and
25 cents, payable in six months, and the other two amounted to 251 dol-
lars and 25 cents, dated the 21st of September, 1796, payable six months
after date ; which notes were given for premiums of insurance ; and by re-
turn of premiums, the sum due on the three notes was reduced to 990
dollars; and after crediting the 525 dollars, the amount of the three divi-
dends, a balance remained due from Butler to the defendants, of 4GD
dollars. The defendants refused to transfer the shares which had been
assigned to the plaintiff by Butler, until that sum was paid, which the
plaintiff accordingly paid, and the transfer was made. Butler, on the 20tli
of January, 1798, was insolvent; and on that day the last instalment was
paid on the fifty shares, and the plaintiff requested a transfer to be made,
which the defendants refused to make, until the balance due on the three
notes above mentioned was paid. It was also proved by the secretary
of the company, that it was common to make assignments of stock, and
SECT. III.] BATES V. THE NEW YORK INSURANCE CO. 549
that it was their practice to send notices, when the instahnents became
due, to the persons to whom the stoclc had been assigned.
The jury found a verdict for the phiintiff for 900 dolhirs, subject to tlio
opinion of the court, on a case containing the above facts ; and the ques-
tions raised for the deternunation of the court were, whether the phiintilT
ought to recover anything ; and, if so, whether he sliould recover tlie 990
dolhirs, being the amount of the three dividends made after his assignment,
together with the money paid by liim in order to procure the transfer ; or,
whether he should recover only the 4G5 dollars, the money demanded of
him, and paid at the time the transfer of the stock was made.
Pendleton and Wilkins, for the plaintiff.
Hoffman, contra.
Thompson, J., delivered the opinion of the court. We arc of opinion that
judgment ought to be given for the plaintiff; but the question as to the
amount seems to divide itself into two distinct considerations. In the
first place, whether the 4G5 dollai's were paid under such circumstances of
compulsion, that the plaintifl" ought to recover it back, or whether it must
be considered as a voluntary payment, and coming within the rule volenti
nonfit injuria. And, in the second place, whether the defendants, holding
those notes against Butler, were authorized to appropriate the dividends on
those shares to the payment of the notes after they had received notice of
the assignment of the stock to the plaintifl'.^
The equitable extension of this kind of action has of late been so liberal,
that it will lie to recover money obtained from any one, by extortion, impo-
sition, oppression, or taking an undue advantage of his situation. In the
present case, there was, at least, an undue advantage taken of the plaintiffs
situation. He had purchased of Norman Butler the fifty shares ; a regular
assignment was made to him ; but the transfer could not be completed
without the assent of the defendants. He had given notice to the defend-
ants of the assignment, and had paid them three instalments, amounting
to 1500 dollars ; and no information appears to have been given to him
by the company, that they had any demand against Butler, who had now
become insolvent, and the plaintiff had no mode of indemnifying himself,
for the money paid Butler, or for the instalments which he had paid, but
by some means or other procuring a transfer of the stock which he had
purchased, which the defendants refused to make, unless he paid them the
465 dollars, which was not then due from Butler to them. The purchase
of the stock had been made by the plaintiff, and the business transacted
according to the usage and practice before adopted by the defendants, and
he had reasonable grounds to believe, when he made the purchase, that the
transfer would be made to him, agreeably to the former practice of the
company, and which they in equity and good conscience were bound to do.
The money being inequitably demanded of him, he must be presumed to
^ So much of the opinion as relates to this question has been omitted. — Ed.
550 CAREW V. RUTHERFORD. [CHAP. V.
have paid it, relying on his legal remedy to recover it back. In the case of
Astley V. Reynolds,^ money paid nnder circumstances less coercive than in
the present case was recovered back in this form of action. In that case
the plaintifiF had pawned some plate to the defendant, and, when he came
to redeem it, the defendant refused to deliver it up, unless he was paid an
exorbitant premium, which was paid, and an action brought to recover the
money back. The court, in giving judgment, said that it was a payment
by compulsion ; the plaintiff might have such an immediate want of his
goods that an action of trover would not do his business ; that where the
rule volenti non fit injuria is applied, it must be where the party had his
freedom of exercising his will. In the case of Irving v. "Wilson,'^ and also
of Hunt, Executor, etc. v. Stokes,* the same principles are fully recognized
and adopted.
It is contended, on the part of the defendants, that this was a voluntary
payment, and, therefore, not recoverable back ; and to establish this, two
cases have been cited. Brown v. M'Kinnaly,* and Bize v. Dickason.* But
on examination, those cases do not compare with the present. The former
case appears to have been decided on the ground that the money for which
the action was brought had been paid pending a former suit, and that the
plaintiff. Brown, might have interposed, as a defence in that action, the
same matter on which he then relied to recover ; and that to allow him to
sustain his action would be to try every such matter twice. In the latter
case, the money for which the action was brought in equity and conscience
belonged to the defendant; and although the plaintiff could not in law
have been compelled to pay it, yet after he had voluntarily paid it, the
court on that ground refused to sustain an action to recover it back. On
the whole, we are of opinion that the 465 dollars could not, under all cir-
cumstances, be considered a voluntary payment, but as made in some
measure by compulsion, an undue advantage having been taken of the
plaintiffs situation, and that he ought to recover it back.
Jtidgment accordingly.
JOHN CAREW V. ALEXANDER RUTHERFORD and OinERS.
In the Supreme Judicial Court of Massachusetts, November
Term, 1870.
[Reported in 106 Massachusetts Reports, 1.]
Contract against Alexander Rutherford, Joseph Wagner, Edward Shea,
William Cooney, and the "Journeymen Freestone Cutters' Association of
Boston and vicinity, an unincorporated association composed of the dcfcnd-
> 2 Stra. 915. 2 4 t. R. 485. » 4 T. R. 561.
* 1 Esp. 279. '^ 1 T. 1{. 285.
SECT. III.] CAREW V. RUTHERFORD. 551
auts personally named and other persons to the plaintiff unknown," to re-
cover back $500 as money had and received by the defendants to the
plaintiff's use.-'
Service was made on the individual defendants, who appeared and an-
swered that " they admit that it is true that there is an association called
the Journeymen Freestone Cutters' Association of Boston and its vicinity,
and that they are members of such association ; they allege that the plain-
tiff, at the time of making the payment set forth in his declaration, was
also a member of said association ; they are ignorant whether the plaintiff
paid the sum of $500 at the time alleged to said association, and leave him
to prove the same, if competent ; they deny that the plaintiff paid the
same to them, or either of them, personally ; they deny each and every
other allegation than as above admitted, in the plaintiff's declaration
contained ; and they further say that, if at the trial the plaintiff shall
introduce evidence tending to show that he paid the sum of $500 to said
association, then they aver that such payment was made by him to said
association as an initiation fee into said association, and that he was present
at the meeting at which the vote was passed fixing the initiation fee at such
sum, and after such vote paid the same voluntarily to his own use as well
as to others', and therefore is not entitled to maintain this action."
At the trial in the Superior Court, befoi'e Brigham, C. J., without a jury,
the judge found these facts : —
"The plaintiff in August, 1868, was a freestone cutter at South Boston,
and had contracted to furnish cut freestone for various buildings, among
which was the Roman Catholic cathedral in Boston, in large quantity and
at a contract price of $80,000. The defendants, and sixteen other persons,
all journeymen freestone cutters, and members of an unincorporated asso-
ciation called the Journeymen Freestone Cutters' Association of Boston,
Charlestown, Eoxbury, and their vicinities (of which association the plain-
tiff was not a member), together with eight or ten laborers, who were not
journeymen stonecutters or skilled laborers, and four apprentices to the
freestone cutting trade, constituted the stonecutting force relied upon by
the plaintiff to fulfil his said freestone contracts. [The constitution and
by-laws of the association were put in evidence.^] On the morning of
August 18, 18G8, the defendant William Cooney, president of said associa-
tion, who was foreman in the plaintiff's establishment, notified the plaintiff
that on the evening of the day before, at a special meeting of the associa-
tion, it was voted that the plaintiff should pay to the association the sum of
$500 as a penalty imposed upon him by the association because he had sent
to New York to be executed some of the freestone cutting to be done under
his contract for the cathedral ; and upon the plaintifi's refusal to make such
payment, all the journeymen freestone cutters employed by him (among
^ The declaration contained also a count in tort which has been omitted. — Ed.
2 This evidence has been omitted, — Ed.
552 CAREW V. EUTHERFORD. [CHAP. V.
tlieni, the defendants) left the plaintiff's service in a body, agreeably to
said vote and the rules of said association. At his request, the plaintiff was
permitted to appear at a meeting of the association and explain the circum-
stances which induced him to send a part of the stonecutting work required
for the cathedral to New York to be executed ; and, after explaining that
his action in that matter was because of his not having the proper stock for
that part of the work when he could procure journeymen to work upon it,
and when, having procured such stock, he could not procure a sufficient
force of journeymen to work it, there was a motion made and debated in
the association, that the previous vote, to the effect that members should
withdraw from the plaintiff's service unless he paid $500 as aforesaid,
should be reconsidered and rescinded ; but the association refused to re-
consider or rescind the vote. At this meeting, said vote was read to the
plaintiff by the secretary of the association. On the same night or the
next morning, the defendants Cooney and Shea, and others, told the plain-
tiff that all the association men in his shop would desert him at once unless
he paid the $500, and that the association refused to rescind the vote.
The plaintiff refused to pay, and all his men left his shop at once and in
a body, under the lead of Cooney and Shea ; and the plaintiff was without
men for a week or ten days, and until after he had made the payment of
$500 as hereinafter stated. Previously to the payment of the money, and
after the men had left him, Cooney and others of the defendants told the
plaintiff that neither these men, nor any association men, would be allowed
to work in his shop, if he refused to pay the money demanded. In conse-
quence of the withdrawal of the defendants and the other journeymen, the
freestone cutting which the plaintiff had contracted to do was stopped,
because it was impossible for the plaintiff to procure journeymen or other
freestone cutters, who were not members of said association, and who had
such skill as was required for the fulfilment of his contracts. Several days
after the defendants and the other journeymen had withdrawn from the
plaintiff's service, the plaintiff, induced by the necessity of doing so to fulfil
said contracts and continue his other stonecutting work, paid to the de-
fendants, to the use of said association, the sum of $500, on August 2G,
18G8; and the defendants and other journeymen, who had witlidrawn as
aforesaid, returned to the service and employment of tlic plaintiff. Said
payment was made by the plaintiff as follows. He first made a check
payable to the order of the association. Tliis the defendants Cooney and
Wagner refused to take, on the ground that no one of those active in pro-
curing it was willing to indorse it. The plaintilf then made a check pay-
able to Wagner or l)earcr, and gave this check to Cooney, and he, Wagner,
and others went with tlic plaintitl' to the bunk, when tlie money was passed
to Wagner's credit as treasurer of the association. No receipt was given
to tlie jilaintiff for this money."
The judge further found as a fact "that the money demanded of the
SECT. III.] CAKEW V. KUTIIEEFORD. 553
plaintiff was demanded without right, and not under any contract or agree-
ment between him and the defendants."
Upon these findings the judge ruled that the Aicts would not sustain tlie
action, and ordered judgment for the defendants. The plaintiff alleged
exceptions.
K F. Hodges and J. F. Barrett, for the plaintiff.
aS'. J. Thomas, for the defendants.
Chapman, C. J, The declaration contains a count in tort, and a count
for money had and received. The count in tort alleges, in substance, that
the plaintiff was engaged in carrying on the business of cutting freestone
in Boston, and employed a great many workmen, and had entered into a
contract with builders to furnish them with such stone in large (juantities ;
and the defendants, conspiring and confederating togetlier to oppress and
extort money from him, and pretending that he had allowed some of said
builders, with whom he had made contracts, to withdraw from his shop a
part of the work he had contracted to do, and to procure the same to be
done out of the State, caused a vote of the Journeymen Freestone Cutters'
Association of Boston to be passed, to the effect that a fine of five hundred
dollars was levied upon the plaintiff, and read the vote to him, and threat-
ened him that unless he paid the fine they would, by the power of the
association, cause a great number of the workmen employed by him to leave
his service ; that he refused to pay it, and the defendants caused twelve of
his workmen to leave his service for that reason, at their instigation. Tliey
further threatened him that, unless he paid the fine, they would, by the
power of the association, prevent him from obtaining suitable workmen for
carrying on his business, and did so prevent him till he paid the fine, and
thus extorted from him the sum of five hundred dollars.
Trial by jury was waived, and the facts found by the judge are reported.
It appeared that the plaintiff had made a contract to furnish stone for the
Eoman Catholic cathedral in Boston, and had employed journeymen to do
the work, and relied upon them to fulfil his contracts ; and the facts stated
in the declaration were substantially proved. The plaintiff was not a
member of the association. He had sent some of his work to be done in
New York because he could not obtain a sufficient force to do it in Boston,
and had not proper stock for the work. If the action can be maintained
it is on the ground that the defendants have done the acts alleged, in
violation of the legal rights of the plaintiff.
By the Gen. Sts. c. IGO, § 28, which is cited by the plaintiff's counsel,
" whoever, either verbally or by a written or printed communication,"
" maliciously threatens an injury to the person or property of another, with
intent thereby to extort money or any pecuniary advantage whatevci', or
with intent to compel the person so threatened to do any act against liis
will, shall be punished " as the section prescribes. As tliis is a ])eual
statute, perhaps it does not extend to a threat to injure one's business by
554 CAREW V. RUTHERFORD. [CHAP. V.
preventing people from assisting him to prosecute it, whereby he loses his
profits and is compelled to pay a large sum of money to those who make
the threat, though the threat is quite analogous to those specified in the
statute, and may be not less injurious. We shall therefore consider, not
whether the acts alleged and proved against the defendants were unlawful
■within the statute, but whether they were so at common law.
The constitution and by-laws of the Journeymen Freestone Cutters'
Association, whose agents the defendants profess to have been, have been
laid before us. We have not had occasion to examine them critically ; for
the doctrine stated in Commonwealth v. Hunt ^ is unquestionably correct,
namely, that, when an association is formed for purposes actually innocent,
and afterwards its powers are abused, by those who have the control and
management of it, to purposes of oppression and injustice, it will be crimi-
nal in those who misuse it, but not in the other mem])ers of the association.
Upon the same principle, if the wrongful acts done are tortious, whether
criminal or not, the persons who are guilty of the tortious acts will be
civilly liable to those whom they have injured. If the defendants have
injured the plaintiff unlawfully, the articles of association cannot protect
them, and it is immaterial whether persons who are not parties to the
action are guilty.
The acts charged are alleged to have been done in pursuance of a con-
spiracy. On this point, if two or more persons combine to accomplish an
unlawful purpose, or a purpose not unlawful by unlawful means, their con-
duct comes within the definition of a criminal conspiracy as stated in
Commonwealth v. Hunt, cited above. If, in pursuance of such a conspiracy,
they do an act injurious to any person, he may have an action against
them to recover the damage they have done him.
One of the aims of the common law has always been to protect every
person against the wrongful acts of every other person, whether committed
alone or in combination with others ; and it has provided an action for
injuries done by disturbing a person in the enjoyment of any right or priv-
ilege which he has. Many illustrations of this doctrine are given in Bac.
Ab. Actions on the Case, F., among which are the following : " If A.,
being a mason, and using to sell stones, is possessed of a certain stone-pit,
and B., intending to discredit it and deprive him of the profits of the said
mine, imposes so great threats upon his workmen, and disturbs all comers,
threatening to maim and vex them with suits if they buy any stones, so
that some desist from working, and others from buying, A. shall have an
action upon the case against B., for the profit of his mine is thereby im-
paired." 80 " if a mati menaces my tenants-at-will of life and member,
per quod they dc])art from their tenures, an action upon the case lies
against him." "If a man discharges guns near my decoy-pond with do-
sign to damnify me by frightening away the wild-fowl resorting thereto,
J 4 M.t. Ill, 129.
SECT. III.] CAREW V. RUTHERFORD. 555
and the wild-fowl are thereby frightened away, and I am damnified, an
action on the case lies against him." Slander as to one's profession or title
is a wrong of a similar character.
The illustrations given in former times relate to such methods of doing
injury to others as were then practised, and to the kinds of remedy tiien
existing. But as new methods of doing injury to others are invented in
modern times, the same principles must be applied to them, in order that
peaceable citizens may be protected from being disturbed in the enjoyment
of their rights and privileges ; and existing forms of remedy must be used.
Thus in the recent case of Marsh v. Billings,^ the plaintilf, being a hotel-
keeper, had a badge on his coaches indicating the name of his hotel. The
defendant adopted his badge, and used it fraudulently to entice customers
away from his hotel, and was held liable to an action for the damage
occasioned to the plaintilf thereby.
In the cases cited above, the injury was done by an individual ; but
there ai'e other cases whei-e an element of the tort is a conspiracy of two
or more persons who combine together for the purpose of doing the wrong.
Any person has a right to express in a reasonable manner approbation or
disapprobation of an actor at a theatre. But if several persons combine
together to ruin an actor, and hire persons to attend, and with hissing,
groans, and yells, compel him to desist, and prevent the manager from
employing him, such conduct is actionable. Gregory v. Brunswick.^
There are many cases where money has been wrongfully obtained by
fraud, oppression, or taking undue advantage of another, without doing him
any other injury. This, being tortious, would sustain an action expressly
alleging the tort. But an action for money had and received has been
maintained in many cases where money has been received tortiously with-
out any color of contract.^ This class of cases is referred to, because they
discuss the question what constitutes an unlawful obtaining of money, such
as will subject the party obtaining it to an action for damages.
In Shaw V. Woodcock,* it is said that, if a party making a payment is
obliged to pay the money in order to obtain possession of things to which
he is entitled, the payment is not a voluntary, but a compulsery payment,
and may be recovered back.
In Morgan v. Palmer,^ Abbott, C. J., says that in order to render a pay-
ment voluntary in the proper sense of the word, the parties concerned must
stand upon equal terms ; there must be no duress operating upon the one ;
there must be no oppression or fraud practised by the other.
In Cadaval v. Collins,® money was recovered back which was obtained
by abuse of legal process.
In Wakefield v. Newbon,' money extorted from another by means of the
wrongful detention of his goods was recovered back.
1 7 Cush. 322. 2 6 Man. & G. 205. 3 i Chit. PI. 6th Ed. 352.
* 7 B. & C. 73. 54 D. & R. 283. <= 4 A. & E. 858. ^ e Q. Tl. 27().
556 CAREW V. EUTHERFORD. [CIIAP. V.
The same doctrine is well established in tliis country. In Sortwell v.
Ilorton,^ the principle was stated to be, tiiat money may be recovered
back that had been paid in discharge of a claim which was fictitious and
false, and known to be so by the party making the claim, and who induced
the payment by menaces, duress or taking undue advantage of the other's
situation. There are several cases where the action has been maintained
to recover back money which was paid to procure a release of property
•which tlie defendant had detained illegally ; and in some of them the prin-
ciple is thoroughly discussed. Chase i;. Dwinal;^ Harmony v. Bingham;'
Maxwell v. Griswold;* Cobb v. Charter.^ In James v. Roberts,^ the court
enjoined a party from enforcing the collection of a note which he had in-
duced the plaintiff to give by threats of a groundless prosecution. Evans
V. Iluey,' was an action on a note. The plaintiff went to the defendant's
house in the night, with a party of armed men, and insisted on the de-
fendant's settling and giving him the note. ' There was no threat or duress,
but the court held that, as the circumstances were sufficient to awaken his
apprehensions, it was not to be regarded as a voluntary payment.
In the two cases last cited, the principle was enforced by protecting the
injured party against a suit.
The cases in regard to the recovery back of money which has been wrong-
fully obtained are very numerous. Many of them are collected in the notes
to Marriot v. Hampton.® There is a large class of cases in which it cannot
be recovered back, like Marriot v. Hampton, and like Benson v. Monroe."
In the latter case, the defendant had made a claim in good faith, under a
statute which he believed to be valid. The plaintiff had preferred to settle
and pay it, rather than litigate the matter further. It turned out, by
the decision in a subsequent case, that if he had carried the case to the
Supreme Court of the United States he would have prevailed, on the
ground that the statute was unconstitutional. But neither this, nor any
of the other cases, gives any countenance to the idea that money can be
obtained by fraud or oppression, and with knowledge that the claim is un-
founded, without exposing the party obtaining it to an action.
"Without undertaking to lay down a precise rule applicable to all cases,
we think it clear that the principle which is established by all the authori-
ties cited above, whether they are actions of tort for disturbing a man in
the exercise of his rights and privileges, or to recover back money tor-
tiously obtained, extends to a case like the present. We have no doubt
that a conspiracy against a mechanic, who is under the necessity of em-
ploying workmen in order to carry on his business, to obtain a sum of
money from him, which he is under no legal liaV)ility to pay, by inducing
liis workmen to leave him, and by deterring others from entering into his
1 28 Vt. 373. • 7 Orccni. 134. » 2 Kcrnan, 99.
< 10 How. 242. 6 32 Conn. 358. 6 18 Oliio, 548.
-> 1 Bay, 13. ^2 Sniitli's L. C. 6th Am. Ed. 453. » 7 Cash. 125.
SECT. III.] CAREW V. RUTHERFORD. 557
employment, or by threatening to do this, so that he is induced to pay tlie
money demanded, under a reasonable apprehension that he cannot carry on
his business without yielding to the illegal demand, is an illegal, if not a
criminal, conspiracy ; that the acts done under it are illegal ; and that the
money thus obtained may be recovered back, and, if the parties succeed in
injuring his business, they are liable to pay all the damage thus done to
him. It is a species of annoyance and extortion which the common law-
has never tolerated.
This principle does not interfere with the freedom of business, but pro-
tects it. Every man has a right to determine what branch of business he
will pursue, and to make his own contracts with whom he pleases and on
the best terms he can. He may change from one occupation to anothei",
and pursue as many different occupations as he pleases, and competition in
business is lawful. He may refuse to deal with any man or class of men.
And it is no crime for any number of persons, without an luilawful object
in view, to associate themselves together and agree that they will not work
for or deal with certain men or classes of men, or work under a certain
price, or without certain conditions. Commonwealth v. Hunt,^ cited above ;
Boston Glass Manufactory v. Binney ; ^ Bowen v. Matheson.'
This freedom of labor and business has not always existed. "When our
ancestors came here, many branches of labor and business were hampered
by legal restrictions created by English statutes ; and it was a long time
before the community fully understood the importance of freedom in this
respect. Some of our early legislation is of this character. One of the
colonial acts, entitled " An act against oppression," punished by fine and
imprisonment such indisposed persons as may take the liberty to oppress
and wrong their neighbors by taking excessive wages for their work, or
unreasonable prices for merchandises or other necessary commodities as
may pass from man to man.* Another required artificers, or handicraft-
men meet to labor, to work by the day for their neighbors, in mowing,
reaping of corn, and the inning thereof.^ Another act regulated the price
of bread.® Some of our town records show that, under the power to make
by-laws, the towns fixed the prices of labor, provisions, and several articles
of merchandise, as late as the time of the Revolutionary War. But ex-
perience and increasing intelligence led to the abolition of all such restric-
tions, and to the establishment of freedom for all branches of labor and
business ; and all persons who have been born and educated here, and are
obliged to begin life without property, know that freedom to choose their own
occupation and to make their own contracts not only elevates their condition,
but secures to skill and industry and economy their appropriate advantages.
Freedom is the policy of this country. But freedom does not imply a
right in one person, either alone or in combination with others, to disturb
1 4 Met. 111. 2 4 Pick. 425. ^ 14 Allen, 499.
* Anc. Chart. 172. ^ Aiie. Chart. 210. « Anc. Chart. 752.
558 SCIIOLEY V. MUMFORD. [CIIAP. V.
or aunoy another, cither dircctl}- or indirectly, in his lawful business or
occupation, or to threaten him with annoyance or injury, for the sake of
compelling him to buy his peace ; or, in the language of the statute cited
above, " with intent to extort money or any pecuniary advantage whatever,
or to compel him to do any act against his will." The acts' alleged and
proved in this case are peculiarly offensive to the free principles which pre-
vail in this country ; and if such practices could enjoy impunity, they
would tend to establish a tyranny of irresponsible persons over labor and
mechanical business which would be extremely injurious to both.
Exceptions sustained.
After this decision, the case was settled by the parties, without another
trial.
JOHN B. SCHOLEY, Executor, etc., Appellant, v. GEORGE H.
MUMFOPtD, et al, Respondents.
In the Court of Appeals op New York, April 20, 1875.
[Reported in 60 New York Reports, 498.]
Appeal from judgment of the General Term of the Supi-eme Court in
the fuurtli judicial department, in favor of defendants, entered upon an
order denying a motion for a new trial and directing judgment upon a
verdict.
Tiiis action was brought to recover back moneys paid under the following
circumstances : —
The plaintiff and George H. Mumford were executors of the will of
Elizabeth Scholey. Mr. Mumfurd died having in his possession certain
United States bonds, to the amount of $85,000, belonging to the estate
of Mrs. Scholey. These came to the hands of defendants, who were Mr.
Mumford's executoi"S. They refused to deliver up the same unless certain
commissions, which they claimed due their testator, were paid ; among them
was a claim for commissions of one half of one per cent upon the value of
the bonds. They filed in the surrogate's office the account of their testator,
as executor. It was undisputed, save as to the said commissions. This
was submitted to the surrogate, who decided adversely to the plaintiff,
whereupon to obtain the bonds he paid the claim and received the bonds.
No formal order was entered. Subsequentl}' plaintiff applied for a rehearing.
An order and citation were issued. The defendants appeared, and upon
the rehearing the surrogate reversed his previous decision. The defendants
refused to refund the moneys. The court directed a verdict for defendants.
Exceptions were ordered to be heard, at first instance, at General Term.
Francis A. Macomher for the appellant.
G. F. Ddnforth for the respondents.
SECT. III.] SCHOLEY V. MUMFORD. 559
Rapallo, J. That the sum paid by the plaintiff to the defendants was
illegally demanded, and that they had no just riglit to it, is not denied.
But they claim to retain it on the ground that the payment was voluntary ;
and they cite the elementary rule, " that, by submitting to the demand, ho
that pays the money gives it to whom he pays it, and makes it his, and
closes the transaction between them."
The court, at the trial, sustained this claim of the defendants, and de-
cided that, although the defendants were not entitled to the commissions
claimed, yet, the payment thereof in the manner proved was a voluntary-
payment, and, therefore, the money could not be recovered ; and, solely
upon that ground, directed a verdict for the defendant.
Without passing upon the questions argued by the appellant, whether an
executor can make a valid gift to a co-executor, or his representative, of
funds belonging to the estate ; or whether the payment in controversy was
for fees illegally exacted, we are of opinion that the facts of the case clearly
require us to hold that the payment was not voluntarv.
The defendants had in their possession $85,000 of bonds belono-ino- to
the estate of which the plaintiff was surviving executor. These bonds had
come to the possession of the defendants through George H. Mumford, de-
ceased, who was, in his life, the co-executor, with the plaintiff, of the will
of Mrs. Scholey. The complaint alleges that the defendants refused to
deliver these bonds to the plaintiff until the sum in controversy, which
was alleged by the defendants to be due to the estate of George H. Mum-
ford, deceased, for commissions, was paid to them, and that this claim was
disputed by the plaintiff. The parties appeared before the surrogate, who,
in the first instance, decided that the defendants were entitled to the com-
missions. The plaintiff then paid them, and afterward applied to the sur-
rogate for a rehearing upon the question, and upon such rehearing the
surrogate reversed his former decision. The complaint alleges that the
plaintiff, although advised that the first decision of the surrogate was
erroneous, nevertheless paid the sum claimed, in order to obtain the de-
livery of the bonds to him. The defendants, in their answer, do not deny
the allegation of the complaint that they refused to deliver up the bonds
except upon payment of the commissions, but, on the contrary, expressly
admit " that they would not have delivered up the bonds except upon the
terms aforesaid," i. e., the payment of the commissions. The plaintiff testi-
fied that he was anxious to get the bonds ; that the defendants had, after
the death of George H. Mumford, declined to give up the bonds, on the
ground that commissions were due. The evidence is very meagi-e ; but I
think it sufficiently appeared, from the acts of the parties and the admission
in the answer, that this claim for commissions was disputed, and was
yielded to simply as a means of obtaining possession of the bonds to which
the plaintiff' was entitled, and which the defendants withheld from him for
the purpose of coercing payment of the commissions.
560 SCHOLEY V. MUMFORD. [CHAP. V.
To constitute a voluntary payment the party paying must have had the
freedom of exercising his will. When he acts under any species of compul-
sion the payment is not voluntary. If a party has in his possession goods,
or other property, belonging to another, and refuses to deliver such property
to that other unless the latter pays him a sum of money which he has no
right to receive, and, in order to obtain possession of his property, he pays
that sum, the money so paid is a payment made by compulsion, and may
be recovered back. (Per Bayley, J., Shaw v. Woodcock.^) This has been
frequently decided. Where a pawnbroker refused to deliver plate pawned,
except upon payment of excessive interest, and the owner paid it to obtain
his property, he was allowed to recover back the excess. Ashley v. Rey-
nolds."'' An action will lie to recover back mono}' paid to release goods
wrongfully detained on a claim of lien : Ashmole v. Wainwright ; ' Har-
mony V. Bingham ; * or money wrongfully exacted by a corporation as a
condition permitting a transfer of stock. Bates v. N. Y. Ins. Co.^ The
cases to this effect are numerous. In all these cases the payment is re-
garded as compulsory, and not voluntary. I think the case at bar falls
within the principle of these decisions. The amount of property was very
large compared with the sum exacted ; and, from the conduct of the plain-
tiff, it may well be inferred that he preferred to pay it and take the chances
of recovering it back, rather than to incur the hazard of having so large an
amount of property in the hands of the defendants.
Tiie claim of the defendants, that after the surrogate had decided that
the defendants were entitled to the commissions, the plaintiff gave up the
controversy, and consented to abide by the decision, is not sustained by
the facts. The uncontro verted allegations of the complaint, that the de-
fendants refused to deliver the bonds unless the commissions were paid ;
and that, after the first decision of the surrogate, the plaintill", although
advised that the decision was erroneous, did, nevertheless, pay them, in
order to have the bonds delivered up to him, coupled with the steps which
were very soon afterward taken by the plaintiff to obtain a reversal of the
decision of the surrogate ; and the allegations in the answer, that, after the
first decision, the defendants notified the plaintiff that they would deliver
up the bonds on payment of the amount claimed by them, and that they
would not have delivered up the bonds except upon the terms aforesaid,
sufficiently define the positions of the parties, and show that the payment
was not the free and voluntary act of the plaintiff; but that he had no
choice, and was compelled to submit to the demand in order to obtain
immediate possession of the bonds.
The judgment should be reversed, and a new trial ordered, with costs to
abide the event.
All concur ; except Miller, J., dissenting. Judgment reversed.
1 7 B. & C. 73. 2 2 Stra. 915. s 2 A. & E. N. s. 737.
■ ■• 12 N. Y. 109, lie. 53 Johns. Cas. 238.
SECT. III.] OCEANIC STEAM NAVIGATION CO. V. TAITAN. 5G1
THE OCEANIC STEAM NAVICATION COMPANY v. J. NELSON
TAVVAN.
In the Circuit of tue United States, Southern District of New
York, May G, 1879.
[Reported in 16 Blatchford, 29G.]
Wallace, J. This action is brought to recover moneys alleged to have
been illegally exacted by the defendant, the chamberlain of the city of New
York, and to whom the plaintiff paid the sum involved, under protest.
The moneys were collected by the defendant under color of the provisions
of acts of the legislature of the State of New York, by which, in effect, a
tax was imposed upon alien passengers arriving in vessels at the port of
New Y^ork, to be collected of the master or owner of the ship by which they
were lauded. These acts, since the payment of the moneys in suit, have
been declared unconstitutional by the Supreme Court of the United States,
as in conflict with the clause of the Constitution of the United States which
delegates to Congress the right to regulate commerce with foreign nations.
Henderson v. The Mayor.i Since the payment of the moneys, however.
Congress has passed an act,^ which declares that the acts of every State
and municipal officer or corporation of the several States, in the collection
of these moneys, shall be valid, and that no action shall be maintained
against such officer or corporation, for the recovery of such moneys. The
defence of the action is placed upon two grounds, — first, that the moneys
were paid voluntarily ; and, second, that the validating act of Congress
precludes a recovery by the plaintiff.
An action does not lie to recover back moneys claimed without right, if
the payment was made voluntarily, and with a full knowledge of the facts
upon which the claim was predicated. It is not enough that payment was
made under protest by the party paying. The payment must have been
compulsory ; that is, it must have been made under coercion, actual or
legal, in order to authorize the party paying to recover it back. In the
absence of such coercion, the person of whom the payment is demanded
must refuse the demand ; and he will not be permitted, with knowledge
that the claim is illegal and unwarranted, to make payment without I'csist-
ance, where resistance is lawful and possible, and afterwards to select his
own time to bring an action for restoration, when, possibly, his adversary
has lost the evidence to sustain the claim. AVhere, however, the demandant
is in a position to seize or detain the property of him against whom the
claim is made, without a resort to judicial proceedings, in which the validity
of the claim may be contested, and payment is made under protest, to
1 92 U. S. 259. '^ Act of June 19, 1878, 20 U. S. Stat, at Large, 177.
VOL. II. — 3G
562 OCEANIC STEA^I NAVIGATION CO. V. TArPAN. [CIIAP. V.
release the property from such seizure or detention, the party paying can
recover back his payment.
The commutation moneys paid by the plaintiff were paid to relieve the
plaintiff from an accumulation of penalties, the collection of which could
only be enforced by judicial proceedings. The statute required the plain-
tiff, within twenty-four hours after the arrival of its vessel at the poi*t of
New York, to report in writing to the mayor of the city, the number,
names, places of birth and last legal residence, of each alien passenger, and,
in case of failure, imposed a penalty of seventy-five dollars for each pas-
senger not reported. The statute also directed the mayor, by an indorse-
ment to be made on such report, to require the owner of the vessel to
execute a several bond, with sureties, in a penalty of §300, for each pas-
senger included in the report, to indemnify and save harmless the Com-
missioners of Emigration, and each aud every city, town, or county in the
State, against all expenses which might necessarily be incurred for the care
and support of such passenger. The statute also enacted, that sucii owner
might commute for the bonds so required, within three days after the
landing of such passengers, by paying to the chamberlain of the city of
New York the sum of one dollar and fifty cents for each and every pas-
senger reported according to law, and that the receipt of such sum should
be deemed a full and sufficient discharge from the requirements of giving
bond. In case of neglect or refusal to give the bonds required, within
twenty-four hours after landing passengers, the statute imposed a penalty
upon the owner or consignee of the vessel, of five hundred dollars for each
passenger landed.
The penalties given by the act were to be sued for and recovered by the
Commissioners of Emigration, in any court having jurisdiction of such
actions, and, under a general statute of the State respecting claims against
vessels, such an action could be commenced by the seizure of the vessel by
attachment, upon giving security to indemnify the owner. Briefly stated,
the plaintiff's position was this : if it failed to report, it was liable to a
penalty of seventy-five dollars for each alien passenger ; if it did report, it
was required to pay one dollar and fifty cents for each passenger, by way
of commutation, or was liable, if required by the mayor, to give onerous
bonds, and, in default, to pay a penalty of five hundred dollars for each
bond withheld ; and the penalties, in either case, were a lien upon the
vessel, collectible by an action at law, wherein, upon giving security for the
indemnity of the vessel owner, an attachment against the vessel might be
obtained and the vessel seized.
l*alpably, the statute was framed to coerce the payment of the commuta-
tion moneys. If they were not paid, the owner of the vessel was made
liable to an accumulation of penalties, which would aggregate an enormous
sum, and which, if c(jllcctcd, would ordinarily bankrupt the ship-owner.
Katiirally, rather than incur the hazard of such disastrous consequences.
SECT. III.] OCEANIC STEAM NAVIGATION CO. l\ TAPPAN. 563
the shii)-u\vner would pay, in preference to abiding the contingencies of
litigation. The hardship of tlie particular case, however, cannot change
the rule of law. The penalties imposed in lieu of the commutation money
could only be collected by suit in a court of law, where the corporation
against which they were claimed could have its day and all the protection
which the courts afford to suitors; and a payment made under such
a state of fixcts is not made under legal coercion. The party paying is
bound to know the law, and to assume that it will be correctly administered
by the tribunal which is to decide the controversy. The rule is well stated
in Benson v. Monroe,^ which was a case to recover head money, under a
statute similar to the one here, and was precisely like the present case,
except that attachment had been obtained, and the vessel seized under
them, to recover the penalties. The plaintiffs thereupon paid the com-
mutation money under protest, and brought suit to recover it back ; and
the court said : " They should have contested the demand made on them,
in the suit that was instituted against them, and, having voluntarily ad-
justed that demand, and relieved their vessel from seizure, with a full
knowledge, or means of knowledge, of all the facts of their case, they cannot
now be permitted to disturb that adjustment."
It is stated, in general terms, in some of the decisions, that, where money
is paid to a public officer, upon an unlawful demand, to save the person
paying from the infliction, under color of authority, of great or irreparable
injury, from which he can only be saved by making the payment, such
payment is made under an urgent and immediate necessity and may be
recovered back. But, it will be found that none of these decisions were
in cases where the injury apprehended by the party paying could only be
inflicted by the decision of a court in favor of the validity of the claim
made against him. There cannot be an immediate and urgent necessity
for the payment of a demand which can only be enforced by the decision
of a court of justice. The case of Benson v. Monroe, and that of Cun-
ningham V. Boston,^ are directly in point, as deciding, that the apprehen-
sion of the recovery of heavy penalties by suit, in case the demand for a
small sum is not complied with, does not take the case out of the general
rule.
The case of Cunningham v. Monroe,^ cited for the plaintiff, was one
where the payment was made under circumstances amounting to duress
de facto, which were emphasized, in the opinion of the court, as distinguish-
ing it from Cunningham v. Boston. There are cases in the books, where
payments have been extorted by threats of criminal or civil proceedings,
and the party paying the demand has been permitted to recover back, but
these were cases where the facts were held to constitute actual duress, of
which the threats were an incident.
In reaching this conclusion I have not adverted to the fact, that the
1 7.Cush. 125, 2 16 Gray, 4G8. s 15 Grny, 471.
564 OCEANIC STEAM NAVIGATION CO V. TAPPAN. [CHAP. V.
mayor never required the bonds to be executt'd by the plaintiff, by the
indorsement upon the reports which the statute directs. The moneys
were paid by the plaintiff to escape the penalties imposed for neglect to
execute the bonds, and not the penalties for failing to make the report
required by the act. Until the mayor's indorsement these penalties could
not accrue. The plaintiff, without waiting to ascertain whether or not the
mayor would take the action required to subject the plaintiff to the penal-
ties, paid the commutation moneys, upon the assumption that the mayor
would take such action at some future time. "Within the recent decision
of the Supreme Court of the United States in Railroad Co. v. Commis-
sioners,^ this circumstance should defeat the plaintiff. That case holds,
that, where a warrant was in the hands of an officer, for the collection of
a tax, which authorized him to seize the property of the plaintiff, and no
actual attempt to execute the warrant had been made, but the plaintiff,
assuming that a seizure would be made, went to the treasurer and paid
the tax under protest, setting forth in the protest the illegality of the tax,
and stating that a suit would be brought to recover back the payment, the
payment was not compulsory, in a legal sense, and could not, therefore, be
recovered back.
I have preferred, however, to rest the decision, upon this branch of the
case, upon the broad ground, that money paid upon a demand, to prevent
the seizure of property which can only take place by judicial proceedings,
where the party paying may have his day in court and defeat the proceed-
ing, is not paid under legal compulsion, and cannot be recovered back,
although paid under protest. Mayor of Baltimore v. Lefferman;^ Town
Council of Cahaba v. Burnett ; ^ Cook v. City of Boston ; * Taylor v. Board
of Health ;^ Mays v. Cincinnati.®
Having thus reached a conclusion which must dispose of this case
adversely to the plaintiff, it is not necessary to pass upon the question
presented by the defence, which rests on the effect of the act of Congress
declaring that the acts of the defendant in collecting the moneys in suit
shall be valid, and declaring that no action shall be maintained to recover
back the money. It would be indecorous to adjudge an act of Congress
unconstitutional, when it is not necessary to do so in the disposition of the
controversy before the court. It is proper, however, to say, that, to sus-
tain the validity of this act, it will be necessar}^ to decide that it is within
the authority of Congress to legalize the action of officers of a State in
collecting moneys under a law of the State, which, because it was un-
constitutional, conferred no authority whatever to act under it ; and I am
not aware of any legislative validating act containing such a vigorous and
radical measure of relief, which has been the subject of judicial exposition.
Unless the act can be sustained as a validating act, it would seem that the
1 98 U. S. 541. 2 4 Gill, 425. » 34 Ala. 400.
« 9 Allen, 393. » 31 P.-nii. St. 73. « 1 Oliio, St. 2C8.
SECT. III.] SWIFT COMPANY V. UNITED STATES. 565
clause wliich declares that no action shall be maintained to recover back
the moneys collected, must be ineiiectual, because it would deprive tlio
plaintiff of a right of action, which is a vested right of property, without
due process of law.
Judgment is ordered for the de/eiidant.
Henry Nicoll, Ashbel Green, and James Emott for the plaintiff.
George P. Andreivs, William C. Whitney, and Leivis Sanders for the
defendant.
SWIFT COMPANY v. UNITED STATES.
In the Supreme Court of the United States, March 17, 1884.
^Reported in 111 United States Reports, 22.]
This case was heard at October term, 1881, on a demurrer to the peti-
tion. The judgment of the Court of Claims sustaining the demuiTcr was
overruled, and the case remanded for a hearing on the merits, 105 U. S.
691. The Court of Claims found that the claimants from 1870 to 1878,
were manufacturei-s of matches, furnished their own dies, and gave bonds
for payment of stamps furnished within sixty days after delivery under
the statute. Each order was for stamps of a stated value. The commis-
sioner from the commencement held that the amount allowed by statute
was to be computed as commissions upon the amount of money paid. All
business between the parties was transacted and all accounts stated and
adjusted by the accounting officers on that basis. The manner in which
the parties did business under that ruling is stated below, in the opinion
of the court. The Court of Claims held that the facts showed an acquies-
cence by the claimant in the construction of the statute by the commissioner,
and such repeated settlements and voluntary acceptances of stamps in pay-
ment of their commissions in lieu of money, as to preclude them from
recovering, and gave judgment in favor of the United States. From this
judgment the corporation appealed. On the hearing in this court the
argument was on the following points : 1st. Whether the former construc-
tion of the statute was correct ; 2d. Whether the long acquiescence of the
company in the construction given to the statute by the commissioner, and
its frequent and regular settlement of its accounts on that basis and ac-
ceptance of stamps in lieu of money precluded it from disputing the legality
of the transactions ; and 3d. What was the effect of the failure to pro-
test against the settlements which it made under the rulings of the
commissioner.
Mr. J. W. Douglass and Mr. Samuel Shellaharger for appellant.
Mr. Solicitor-General for appellee.
566 SWIFT COMPANY V. UNITED STATES. [CIIAP. V.
Mr. Justice Matthews delivered the opinion of the court.
On a former appeal in this case a judgment of the Court of Claims dis-
missing the claimant's petition on demurrer was reversed. Swift Company
V. The United States.^
It was then held that the right construction of the internal revenue acts,
act of July 1st, 1862, c. 119, § 102, 12 Stat. 477; act of March 3d, 1863,
c. 74, 12 Stat. 714; act of June 30th, 1864, c. 173, 13 Stat. 294, 302;
act of July 14th, 1870, c. 255, § 4, 16 Stat. 257, required the payment of the
commission allowed to dealers in proprietary articles purchasing stamps
made from their own dies and for their own use, to be made in money, cal-
culated at the rate of ten per cent upon the whole amount of stamps fur-
nished, and not in stamps at their face value calculated upon the amount
of money paid. In response to a suggestion in argument by the solicitor-
general we now repeat the conclusion then announced. We had no doubt
upon the point at the time : we have none now. The distinction was then
pointed out between the rule applicable to the sale of other adhesive stamps
and those sold to proprietors of articles named in Schedule C, made from
their own dies. In the former, the commissioner of internal revenue
had a discretion to fix the rate of commission so as not to exceed five per
cent, and in exercising that discretion could make the commission payable
in stamps as an element in the rate itself. As to the latter, no such dis-
cretion was given. The statute fixed the rate of the commission abso-
lutely. The practice of the bureau confused the two cases and ignored the
distinction between them. We do not perceive how the substitution of the
word "commission" in the act of 1863 for the word "discount " in the pro-
viso to § 102 of the act of 1862 aflFects the question ; for the latter obvi-
ously refers to a sum to be deducted from the money paid for the stamps,
and not from the stamps sold, while the former equally denotes a sum to be
paid to the purchaser on a purchase of stamps at par, both being calculated
as a percentage upon the amount of the purchase-money, and the necessary
implication as to both being that they ai-e to be paid in money. However
the words in some applications may differ in verbal meaning, they represent
in the transactions contemplated by these statutes an identical thing.
The present appeal is from a decree rendered in favor of the United
States, upon a finding of facts upon issue joined ; and presents two ques-
tions : first, whether the course of dealing between the parties now pre-
cludes the appellant from insisting upon his statutory right to require
payment of his commissions in money, instead of stamps ; and second,
whctljer, if not, part of his claim did not accrue more than six years before
suit brought, so as to be barred by the statute of limitations.
On the former appeal we decided that the course of dealing set forth in
the petition, which was admitted by tlie demurrer, did not bar the claim-
ant's right to recover ; holding that it did nut appear on the face of the
1 105 U. S. 691.
SECT. III.] SWIFT COMPANY V. UNITED STATES. 567
petition that the ai:)pellant voluntarily accepted payment of his commissions
in stamps at par, instead of money, nor that he was willing to waive his
right to be paid in that way ; and that " it would be incumbent on the
government, in order to deprive him of his statutory right, not only to
show fticts from which an agreement to do so," that is, an agreement to
waive his statutory right, "might be inferred, but an actual settlement
based upon such an understanding."
The decree brought up by the present appeal proceeds upon the basis
that the facts as found by the Court of Claims establish such an agreement
and such a settlement.
The course of dealing found to exist and to justify this conclusion may
be briefly but sufficiently stated to have been as follows : The appellant
gave the bonds from time to time necessary under the statute to entitle it
to sixty days' credit on its purchases of stamps. The condition of this bond
was that the claimant should, on or before the tenth day of each month,
make a statement of its account upon a form prescribed by the Internal
Revenue Burean, showing the balance due at the commencement of the
month, the amount of stamps received, the amount of money remitted by it
during the month, and the balance due from it at the close of the month
next preceding ; and also that the company should pay all sums of money
it might owe the United States for stamps delivered or forwarded to it,
according to its request or order, within the' time prescribed for payment
for the same according to law, that i^, for each purchase within sixty days
from the delivery of the stamps.
Each purchase was npon a separate written order, specifying the amount
desired, for example, 3000 dollars' worth of match stamps. The com-
missioner thereupon forwarded stamps of the face value of $3300, with a
letter stating that they were in satisfixction of the order referred to, and
inclosing a receipt on a blank form, but filled up, except date and signa-
ture, which was an acknowledgment of the receipt of the specified amount
of stamps in satisfaction of the order. The receipt was signed by the
claimant and returned. The claimant from time to time made remittances
of money in authorized certificates of deposit, in sums to suit its conveni-
ence, for credit generally, and received in reply an acknowledgment stating
that credit had accordingly been given on the books of the internal revenue
office on account of adhesive stamps; for instance, by certificate of deposit,
$2500; commission at ten per cent, $250; total, $2750; and authorizing
the claimant to take credit therefor on the prescribed form for the monthly
account current. These accounts were made out by the claimant monthly
on blank forms prescribed and furnished by the commissioner, in which the
United States were debited with all items of money remitted and with com-
missions calculated on each remittance at ten per cent, and credited with
balance from previous month and stamps received on order in the intci-val,
and with the balance due the United States. This account was by a inem-
568 SWIFT COMPANY V. UNITED STATES. [CIIAP. V.
oraudum at the foot stated to be correct, complete, and true, and signed by
the claimant. These returns, with corresponding statements by the com-
missioner, were settled and adjusted by the accounting officers of the
Treasury Department every quarter, aad notice of the settlement given to
the claimant. The remittances were so made that while not corresponding
to any particular order for stamps, they nevertheless covered all stamps the
orders for which had been given sixty days or more previousl}^ so that the
claimant was always indebted to the United States for all stamps received
■within the past sixty days, but not for any received more than sixty days
previously.
It must be admitted that this course of dealing and periodical settlement
between the parties, whether the accounts be regarded as running merely
or stated, shows clearly enough that the business was conducted upon the
basis, that the claimant was to I'eceive his commissions in stamps at their
par value, and not in money, and that this was asserted by the Internal
Revenue Bureau, and accepted by the appellant.
But in estimating the legal effect of this conduct on the rights of the
parties there are other circumstances to be considered.
It appears that prior to June 30th, 1866, the leading manufacturers of
matches, among whom was William H. Swift, who, upon the organization
of the claimant corporation in 1870, became one of its large stockholders
and treasurer, made repeated protests to the officers of the Internal Reve-
nue Bureau against its method of computing commissions for proprietary
stamps sold to those who furnished their own dies and designs ; although it
did not appear that any one in behalf of the claimant corporation ever,
after its organization, made any such protest or objection, or any claim on
account thereof, until January 8th, 1879. On that date, the appellant
caused a letter to be written to the commissioner asserting its claim for the
amount afterwards sued for, as due on account of commissions on stamps
purchased. To this, on January 16th, 1879, the commissioner replied,
saying that the appellant had received all commissions upon stamps to
which it was entitled, " provided the method of computing commissions
which was inaugurated with the first issue of private-die proprietary stamps,
and has been continued by each of my predecessors, is correct. I have
heretofore decided to adhere to the long-established practice of the office
in this regard, until there shall be some legislation or a judicial decision to
change it." And the claim was therefore rejected.
From this statement it clearly appears tliat the Internal Revenue Bureau
had at the beginning deliberately adopted the construction of the law upon
which it acted through its successive counuissioners, recjuiriug all j)crsons
purchasing such proprietary stamps to receive their statutory commissions
ill stamps at their face value, instead of in money ; (hat it logiilated all its
forms, modes of business, receipts, accounts, and returns upon tliat intcr-
])retation of the law ; that it refused on application, prior to 1^06, juid sub-
SECT. III.] SWIFT COMPANY V. UNITED STATES. 509
sequently, to modify its decision ; that all who dealt with it in purcliasing
these stamps were informed of its adherence to this ruling ; and finally,
that conformity to it on their part was made a condition, without which
they would not be permitted to purchase stamps at all. This was in effect
to say to the appellant, that unless it complied with the exaction, it should
not continue its business ; for it could not continue business without
stamps, and it could not purchase stamps except upon the terms prescribed
by the commissioner of internal revenue. The question is, whether the
receipts, agreements, accounts, and settlements made in pursuance of that
demand and necessity, were voluntary in such sense as to preclude the
appellant from subsequently insisting on its statutory right.
We cannot hesitate to answer that question in the negative. The parties
were not on equal terms. The appellant had no choice. The only alterna-
tive was to submit to an illegal exaction, or discontinue its business. It
was in the power of the officers of the law, and could only do as they re-
quired. Money paid or other value parted with, under such pressure, has
never been regarded as a voluntary act within the meaning of the maxim,
volenti 7ion jit injiiria.
In Close V. Phipps/ which was a case of money paid in excess of what
was due, in order to prevent a threatened sale of mortgaged property,
TiNDAL, C. J., said : "The interest of the plaintiff to prevent the sale, by
submitting to the demand, was so great, that it may well be said the pay-
ment was made under what the law calls a species of duress." And in
Parker v. Great Western Railway Company,^ the wholesome principle was
recognized that payments made to a common carrier to induce it to do
what, by law, without them, it was bound to do, were not voluntary, and
might be recovered back. Illegal interest, paid as a condition to redeem a
pawn, was held in Astley v. Reynolds,^ to be a payment by compulsion.
This case was followed, after a satisfactory review of the authorities, in Tutt
V. Ide ; * and in Ogden v. Maxwell,^ it was held that illegal fees exacted by
a collector, though sanctioned by a long-continued usage and practice in
the office, under a mistaken construction of the statute, even when paid
without protest, might be recovered back, on the ground that the payment
was compulsory and not voluntary. And in Maxwell v. Griswold,® it was
said by this court: "Now it can hardly be meant, in this class of cases,
that to make a payment involuntary, it should be by actual violence or any
physical duress. It suffices, if the payment is caused on the one part by
an illegal demand, and made on the other part reluctantly, and in conse-
quence of that illegality, and without being able to regain possession of his
property, except by submitting to the payment." To the same effect are
the American Steamship Company v. Young ; '' Cunningham v. Monroe ; "
1 7 Man. & G. 586. '■' 7 Man. & G. 253. 3 2 Stra. 915.
* 3 Blatclif. 249. ^ 3 Blatchf. 319. 6 10 How. 242-250.
7 89 Fa. St. 186. » 15 Q^ay^ 471.
570 SWIFT COMPAXY V. UNITED STATES. [CIIAP. V.
Carew v. Piiitlierford ; ^ Preston v. Boston.^ In Beckwith v. Frisbie," it
was said : " To make the payment a voluntary one, the parties should
stand upon an equal footing." If a person illegally claims a fee Qolore
officii, the payment is not voluntary so as to preclude the party from re-
covering it back. Morgan v. Palmer.* In Steele v. Williams/ Martin,
B., said : " If a statute prescribes certain fees for certain services, and a
party assuming to act under it insists upon having more, the payment can-
not be said to be voluntary." "The common principle," says Mr. Pollock,^
" is, that if a man chooses to give away his money, or to take his chances
whether he is giving it away or not, he cannot afterwards change his mind ;
but it is open to him to show that he supposed the facts to be otherwise,
or that he really had no choice." Addison on Contracts, *1043 ; Alton v.
Durant.^
No formal protest, made at the time, is, by statute, a condition to the
present right of action, as in cases of action against the collector to recover
back taxes illegally exacted ; and the protests spoken of in the findings of
the Court of Claims as having been made prior to 18G6 by manufacturers of
matches and others requiring such stamps, are of no significance, except as
a circumstance to show that the course of dealing prescribed by the com-
missioner had been deliberately adopted, had been made known to those
interested, and would not be changed on further application, and that con-
sequently the business was transacted upon that footing, because it was
well known and perfectly understood that it could not be transacted upon
any other. A rule of that character, deliberately adopted and made known,
and continuously acted upon, dispenses with the necessity of proving in
each instance of conformity that the compliance was coerced. This prin-
ciple was recognized and acted upon in United States v. Lee,* where it was
held that the officers of the law, having established and acted upon a rule
that payment would be received only in a particular mode, contrary to law,
dispensed with the necessity of an off"er to pay in any other mode, and the
party thus precluded from exercising his legal right was held to be in as
good condition as if he had taken the steps necessary by law to secure his
right.
For these reasons we are of opinion, that the Court of Claims erred in
rendering its judgment dismissing the appellant's petition, and thus dis-
allowing his entire claim. But we are also of opinion that he is not en-
titled to recover for so much of it as accrued more than six years before the
bringing of his suit. 'I'here was nothing in the n/iture of the business, nor
in the mode in which it was conducted, nor in the accounts it required, that
prevented a suit from being brought fur tiiu amount of commissions with-
held, in each instance as it occuiTcd and was ascertained. The recovery
1 lOG Ma.ss. 1. 2 12 Tick. 7. ^ 32 Vt. r.59-566.
* 2 IJ. & C. 729. ^ 8 K.X. C25. » rriucii)les of Contract, 523.
7 2 Strobh. 257. « loc U. S. 196-200.
SECT. III.] SWIFT COMPANY V. UNITED STATES. 571
must therefore be limited to the amount accruing during the six years next
preceding November 21st, 1878, which, according to the findings of the
Court of Claims, is $28,G16, and for that amount judgment should have
been rendered by the court in favor of the appellant.
The judgment of the Court of Claims is reversed and the cause remanded, with
directions to render judgment in favor of the appellant in accordance with this
opinion.
CHAPTER VI.
WAIVER OF TORT.
T0TTENHA3I & BEDINGFIELD'S CASE.
In tue Common Pleas, Michaelmas Term, 1573.
[Reported in 2 Leonard, 24.]
In an accorapt by Tottenham against Bedingfield, who pleaded, that he
, never was his bailiffTo'l^ender accompt, the case was, that the plaintiff was_
possessed oflTparsonage for term of yeai's, and the defendant not having
^^^ •■ any interest nor claiming any title iiTTiiem, took the tythes bemg seTlorth
and severed from the nine parts, and carried them away and sold them.
* Upon which, the plamtiff brought an action of accompt : and by Maxwood,
Justice, the^tion doth not lie, for here is not any privity ; for wrongs are
always done without privity. And yet I do agree, that if one doth receive
my rents, I may implead him in a writ of accompt, and then by the bring-
ing of my action there is privity ; and although he hath received my rent,
yet he hath not done any wrong to me, for that it is not my money until
it be paid unto me, or unto another for my iise, and by my commandment ;
and therefore notwithstanding such his receipt, I may resort to the tenant
of the land, who ought to pay unto me the said rent, and compel him to
pay it to me again ; and so in such case, where no wrong is done unto me,
I may make a privity by my consent to have a writ of accompt ; but if one
disseiseth me of my land, and taketh the profits thereof, upon that no action
of accompt lieth ; for it is merely a wrong. And in the principal case, so
soon as the tythes were severed by the parishioners, there theyjvcre pres-
' eutly in tlie plaintiff, and therefore the defendant by the taking _of_them^
was a wrong-doer, and no action of accompt for thesanie lieth against him.
; And upon the Iike~reason was the case of Monox of London lately adjudged ;
which was, that one devised land to another, and died ; and the devisee
entered, and held the land devised for the space of twenty years ; and
afterwards for a certain cause the devise was adjudged void, and for that
lie to whom the land descended brought an action of accompt against the
devisee; and it was adjudged that the action did not lie. Harper, con-
trary : for here the ])laintiff may charge the defendant as his proctor, and
it shall be no pica for the defendant to say, tliat he was not his proctor, no
more than in an accompt against one who holdeth as guardian in socage, it
is no plea for him to say that he is not prochein amy to the plaintiff.
CIIAr. VI.j ARRIS V. STUKELY. 573
Dyee, the action doth not lie. If an accompt be brought against one as
receiver, he ought to be charged with the receipt of the money ; and an
accompt doth not lie where the party pretends to be owner, as against an
aba^er^ or disseisor : but if one claimeth as baililf, he shall be ciiarged, and
so it is of guardian in socage. And it was agreed that if a disseisor assign
another to receive the rents, that the disseisee cannot have an accompt
against such a receiver.
' ^ ^ & ARRIS V. STUKELY. ^'^-^^
In the Exchequer, Trinity Term, 1678.
\Re-ported in 2 Modern Reports, 260.]
Second Point.^ PoUexfen for the defendant. A general indebitatus
assumpsit will not lie here for want of a privity,^ and because there is no
contract. It is only a tort, a disseisin, and the plaiutilF might have brought
an assise for this office, which lies at the common law ; and so it hath been
adjudged in Jehu Webb's case,^ which is also given by the statute of West-
minster,^ for a profit a prendre in alieiio solo. The plaintiff might have
brought an action on the case against the defendant for disturbing of Inm (/a-t^,,,^ ,
in his office ; and that had been good, because it had been grounded on the
^rongT In this case the defendant takes the profits against the will of the
plaintiff, and so there is no contract ; but if he had received them by
the consent of the plaintiff, yet this action would not lie for want of privity.
It is true, in the case of The King, where his rents are wrongfully received,
the party may be charged to give an account as bailiff ; so also may the
executors of his accountant, because the law creates a privity ; but it is
otherwise in the case of a common person,^ because in all actions of debt
there must be a contract, or quasi ex contractu ; and therefore where judg-
ment was had, and thereupon an elegit, and the sheriff returned that he had
appraised the goods, and extended such lands, which he delivered to the
plaintiff, uhi revera he did not, per quod actio accrevit, which was an action
of debt, it was adjudged that it would not lie, because the sheriff had not
returned that lie meddled with the goods, or with the value of them ; and
therefore for want of certainty how much to charge him with, this action
would not lie, but an action on the case for a fiilse return ; but if he had
returned the goods sold for so much money certain which he had delivered,
then an action of debt would lie ; for though it is not a contract, it is quasi
ex contractu.^
1 Only so much of the case is given as relates to this point. — Ed.
2 2 Hen. 4 pi. 12 ; Bro. " Account," 24, 65, 89 ; Co. Lit. 212.
3 8 Co. 4. * 2, Cap. 25. 5 10 Co. 114 b ; 11 Co. 90. b.
6 Hob. 20G.
574
HITCHIN V. CAMPBELL.
[CIIAP. VL
^^.
Wilmington, Solicitor-Gciieial, aud Sawyer, contra, said, that an indebitatus
r/.s-.s-?»»jAs-//!wniild lie here ; for where one receives my rcut. I may charge
him as baihff or receiver ; or if any one receive my money without my
order, though itis^a tort yet an indebitatus will lie, because by reason of
the money tbg_Ja,w_creates a promise ;^ and the action is not grounded on
the tort, but on the receipt of the profits Jnjthisgase^
. 1 ' The Court. An indebitatiis assumpsit will lie for rent received_bj^ne
who pretends a title ; for in sTich case an accounFwill lie. "Wherever the
\\ plaintiti' may have an account, an indebitatus will lie.
\ Aud in the '^lichaelmas term following, the court gave judgment for
the plaiutitf.^
yf
HASSER V. WALLIS.
In the King's Bench, Hilary Term, 1708.
\Rei)OTled in 1 Salkeld, 28.]
The plaintiff being a feme sole married the defendant Wallis, who was in
truth married to another woman ; "Wallis made a lease of the wife's land,
reserving rent, and received the rents from the tenants. Upon this the
plaintiff, discovering the former marriage, brought an indebitatus assum2)sit
against Wallis for so much money received to her use. And after verdict
on no7i assumpsit, it was objected, that Wallis having no right to receive,
the tenant was not discharged, and therefore an action lay against the
tenant, who has his remedy over against Wallis. But the court held
"Wallis was visibly a husband, and the tenant discharged ; at least that the
recovery against Wallis in this action would discharge the tenant, for thig^
would be a satisfaction to the lessor.
HITCHIN [or KITCHEN] v. CAMPBELL.
In the Common Pleas, Trinity Term, 1772.
[Reported in 2 William Blackstone, 827.2]
Tms cause proceeded to trial in the sittings after Trinity term, 1771, on
the two issues joined on the first and third pleas, when this special case was
stated for the opinion of the court : That liichard Anderson, being indebted
to the defendant Campbell in 2000/. for money lent, gave two bonds and
* It w.os held in Boytcr v. Dodsworth, 6 T. R. 6S1, tliat an action would not lie to re-
cover fp-atuities received Ijy one tortiously discharging the duties of an office. — Ed.
■■^ Reiwrted also in 3 Wils. 304. — Eu.
CHAP. VI.] HITCHIN V. CAMPBELL. 575
judgment for the same ; which judgment was entered up. And on the 9th
March, 17G9, a writ of execution was sued out and dehvered to the sheriff
of Surrey the same day, by virtue of which the sher|ff_the san^e day levied
of the goods of AndersonJ)y making a bill of sale thereof to the defendant,
to the value of2155/. Gs. 5d., for debt and costs. On the 9th April, 17G9
a commission of bankrupt was awarded against Anderson, and the plaintiff
appointed assignee, who iiTMichaelmas term, 17697l)rouglit trover in thTs
court against the sheriff of Surrey and tlie defendant for the goodslevied un-
der the execution. On trial whereof in Hilary term, 1770, thcre~waslbund
a verdict for tbn dpfpndnntj and judgment accordingly. In Easter term,
1770, the plaintiff brought an action in the King's Bench againat^the-xle-
fendant for money had andj;eceiyed,iflLXhisl_use^as assigncfi._aiid recovered
860Z. lOg., as mentioned in the plea, upon a different cause of action from
the present ; namely, for certain notes delivered to the defendant after
the act of bankruptcy, which was proved in the present cause to have beau
committed in Febi'uary, 17G9. It was admitted that the defendant received
the money levied under the execution before the action in the King's l!cncli~ , /
was brought. Aiid^tlns actjmi being brougkt to recover back that money,
(Ju. whether under these circumstances they are entitled to recover 1
This case was argued in last Hilary term by Gli/n for the plaintiff, and
Jephson for the defendant ; and again in Easter term, by Davy for the
plaintiff, and Burland for the defendant.
ivould A .
tract. A^ ^^^ ^'
2. That the plaintiff, having made his election by bringing trover in the '
King's Bench, in which he failed, is barred thereby from bringing another
suit for the same cause of action.
For the plaintiff it was replied, 1. That general use and modern resolu- — .
tions have now settled this point, and it is not to be disturbed. 2. That i^M/>^ ^« >i
the plaintiff, not having had the fruit of his remedy in the King's Bench, '^
shall not be precluded by it.
And now, in this term, De Grey, C. J., delivered the opinion of himself,
Gould, Blx\ckstone, and Nares, JJ. The legal effect of an act of bank-
ruptcy committed by a trader is to put it in the power of the commis-
sioners, by relation, to divest the property of the bankrupt from that time,
in case a commission be afterwards issued. This relation takes place in
every instance but three, excepted by statutes 1 Jac. 1, 21 Jac. 1, and 19
Geo. 2.^ Executions are not among these excepted cases, but are expressly
declared void by the statute 21 Jac. 1 ; the commission being in the
nature of an execution for the whole body of the creditors. By the old
acts of Hen. 8 and Eliz., commissioners had a power of acting themselves
in recovering the bankrupt's effects. Afterwards it became the practice to
assign, which is allowed by 1 Jac. 1, c. 15. It was not till the 5 Anno
1 C. 32.
For the defendant it was insisted, 1. That this action of assumpsit would
not lie, the cause of action being in the nature of a tort, and not a conti
576
HITCFIIN V. CAMrBELL.
[ciLvr. VI.
d
that assignees were directed to be cboseu, which was i-evived by 5 Geo. 1.
Yet, notwithstanding this transfer of the property by relation, the sheriff is
certainly no trespasser Tiytaking the goods_in execution aftei^thjc^ct of
bah"Eruptcy, a7i3ni)eforc the commission ssued. So ruled in Lctchmcre v.
Thorowgi^d, in Comb, and Show. ; ^ and in Cooper v. Chitty, in Bm-row,
20. But by selling, the sheriff converts the goods ; and then trover is
maintainable against the sheriff, or his vendee, or the plaintiff in the
original action. But a question was made in this cause, whether in-
dehitatus assumpsit wowid iie_agamst "The defendant for the money arising-
from the goodsthusTaken in execution, seeing ^hat if the debt jwas^ijlegully
I levied it was atort, and if the tort be waived the whole is waived ; for you
I cannot affirm one part of a transaction and disaffirm the rest.'' It is true,
I this matter was considered formerly in that light, as in Philips v. Tomp-
son/jLud Holt, 95, 12 Mod. 324. And in Billon v. Hyde''(well reported,
1 Ves. 326),* Lord Hardwicke said that this action was never allowed by
Lord Parker, Lord PiAYMOND, or himself, but that the practice had been
since altered. And practice has certainly much extended this action of
assumpsit as a very useful and general remedy. The same principle which
supports this action against one who receives money from the bankrupt
1 Comb. 123 ; 1 Show. 12 ; 3 Mod. 236. - Wilson v. Poulter, 2 Stra. 859.
8 3 bev. 191.
* "It is quite new to me that assignees under a commission of bankruptcy should
maintain an indebitatus assumpsit (which is an action founded on contract) for money
bona fide jtaid by the bankrupt after a secret act of bankruptcy to another jierson for
valuable consideration. How long that is in practice I know not. I thought they were
obliged to bring an action of trespass or trover for the tort, otherwise they would be non-
suited ; of which opinion were Chief Justice Parker, and Lord Raymond. And for
that purpose I have a manuscript case at Guildhall, the sittings after T. T. 4 G. 1. It
was an assumpsit by an administrator for money had and received, etc., and non assump-
sit pleaded. The case was, the defendant was nurse to the intestate during his sickness,
and being alone in the house when she died, conveyed away money and everj'thing port-
able. The defendant objected the action would not lie, there being no color of contract,
but a wrongful taking or conversion, for which trover lay. But Parker, C. J., held
the action maintainable ; because, though the taking was wrongful, yet the plaintilf
might agree afterward and make it right, and the bringing this action was an implied
agreement ; and that there were only two cases wherein an action for money had and re-
ceived, etc., could not be brought ; namely, for money won at play, and money paid
after a bankruptcy ; in both cases, unless you insist on the tort, the tort is waived. Ho
went upon this : that you cannot affirm part and disaffirm part ; so that the plaintiff
there might bring trover or trespass for the tort, or an action for money had, etc., which
the court laid down clear and without doubt, admitting two cases in which that action
could not be brought for wrongful taking. In the case of money won at play, the
action must be on the tort, not for money had, etc. , that admitting the contract at jilay.
So I have ruled at Guildhall, and I believe nonsuited a plaintiff when he has gone con-
traiy. The judges perhaps have gone further since, and admitted such action rather
than put the party to trover ; and this action for money, etc., has been extended to
advance th<! remtdy of the l)arty." Lord Haruwicke, C, in Dillon v. Hyde, 1 Ves.
329, 330. — El).
CHAP. VI.] IIITCHIN V. CAMI'BELL.
77
himself will support it against another who receives it under the hunknipt.
In both cases it is the property of the assignees ; and tliough while this
action was in its infancy ^ the courts endeavored to find technical argu-
ments to support it, as by a notion of privity, etc., yet that principle is too
narrow to support these actions in general to the extent in which they arc
admitted. Besides, if it were necessary, there is in this case a privity
between the defendant and the bankrupt, the judgment being voluntarily
given. Another, and a much stronger objection taken, was that though
the assignees may have their election to bring either an action of tort or
contract, yet they cannot bring both ; and having elected to bring trover,
the judgment in that bars the action of assumpsit.^ This depends upon
two considerations: 1. Whether a man's having once elected to proceed
upon the tort bars him from proceeding upon the contract. 2. Whether
his proceeding down to judgment does not bar him from trying the same
cause of action again. I. As to the first, cases have been cited to show
that where there are two different kinds of remedies, real and personal, or
otherwise specifically distinguished, a man's election of one prevents him
from usingjthe other. He may distrain, or bring assize, but not both ; ^
mayljring writ of annuity, or distrain ; * and his election is determined,
even though he should not recover after he hath counted thereon.^ But
wjiere^Jjoth remedies are merely real or merely personal, there the electloiT
is not determined till the judgment^u the merits. For a nonsuit on^n
action oj^ccount is noj^ar to an action of^debt.® And so must Holt, in
l"2^Mod. 324, be understood to mean, "that if they bring one they shall
not afterwards bring the other . " i. e., if the first be brought to a due con-
clusion. 2. But in the present case the action of trover went on to a
verdict and judgment, and appears by the case stated to have been for the
same cause of action. And upon this it is that the opinion of the court is
founded. The rule of law is, JVetno debet bis vexari pro eadem causa. And
in Ferrers' case "^ it is held that where one is barred in any action, real or
personal, by judgment or demurrer, confession, verdict, etc., he is barred
as to that, or the like action of the like nature for the same thing, forever.
In personal actions the bar is universal ; upon real actions he may have an
action of a higher nature. But a bar in one assize, etc., is a bar in every
other. Here, by " actions of the like nature " must be meant actions in a
similar degree, not merely those which have a similitude of form. All per-
sonal actions are of the same degree ; therefore each is a perpetual bar.
1 2 Jon. 126; 2 Lev. 245.
2 lu Morris v. Robinson, 2 B. & C. 196, it was held that an unsuccessful attempt to
obtain the purcliase-money of an unauthorized sale from one to whom the vendee had
paid it, would not prevent an action against the vendee. Alitcr, if a portion thereof had
been received. Lythgoe v. Vernon, 5 H. & N. 180. — Ed.
3 Litt. s. 588. 4 Litt. s. 219. 6 Co. Litt. 145 a.
6 Co. Litt. 146 a. ' 6 Co. 7 ; Cro. Eliz. 668.
VOL. II. — 37
U
578 CLARKE V. SIIEE AND JOHNSON. [CIIAP. VI.
5 Co. Gl, SpaiTy's case, gives the history of this rule, and shows when it
commenced, its progress, and legal distinctions. There are many excep-
tions to this rule : as, where the first action is not competent ; where the
plaintiff has mistaken his character, and sued as executor, not as adminis-
trator; or where the judgment is given for faults in the declaration or
pleadings.^ But the principal consideration is, whether it be precisely the
same cause of action in both, appearing by proper averments in a plea, or
ii^l by proper facts stated in a special verdict or a special case. One great
criterion of this identity is, that the same evidence wnll maintain both the
actions. Putt v. Royston ; ^ Mortimer v. Wingate ; ^ Ero. Action on the Case.*
These relate to the whole of the demand. But the same reasoning extends
to part of it only ; as 4 Co. 92 b, Slade's Case ; and Pike v. Aldworth, in
Scacch., T. 5 W. & U., and Hil. 7 & 8 W. 3. jn the present case, as there
was clearly a conversion before the action of trover, the only question
could be on the property. In this second action oi'"assumpsit there arises^
the same question of property. The^ first action has^gtermined the goods
liot To^be^the assignee's. He shall not now try whether tj^e money:j)i'Qduccd-
"by^those^oods is his ofna On the state of the case therefore nqw founds
tEe court~tliink^he former action a bar.
— WEen~this 'case was firstjpefore the court on demurrer, there were not
sufficient a^ei™euts_to,^uj[poTtJjii^^ Though the goods were
aveiTed to be the same, it did not appear that the question was the same ;
and therefore^trover might not have lain for the goods themselv^s^_though
i7i(lehitatu$~assiim]mt might aftertt;ards lie for the value. Nor is there any
injustice in the present case. The money is in the hands of a bona fide
creditor, who has got an advantage^ law, by his diligence, over the body
of_the creditors ; and he has a right, in consciencc^tojieejiit^
Therefore, per tot. cur., Judgment for the defendant.
CLARKE V. SHEE and JOHXSON.
In the King's Bench, November 22, 1774.
[lieported in Cowper, 197.]
Thls was an action of trespass on the case, wherein the plaintiff declared
that the defendants, on the 1st of June, 1773, at London, etc., were indebted
to the plaintiff in the sum of 1000/. for divers sums of money to the de-
fendants, by the plaintiff, at the special instance and request of the defend-
ants, before that time lent and advanced. There were two other counts
for money laid out and expended, and for money had and received by the
defendants to the plaintiffs use.
1 1 Mod, 207. * 2 Show. 211 ; Kaym. 472 ; 3 Mod. 1 ; Pollexfen, 634,
3 Moor, 463, * pp. 97, 105.
CHAP. VI.] CLARKE V. SHEE AND JOHNSON. 579
To this declaration the defendants pleaded the general issue, and there-
upon issue was joined.
This case came on to be tried at the sittings after Trinity term, 1771, :it
Guildhall, London, before Lord Mansfikld; when a verdict was found for
the plaintiff, damages 45 U/. 4s. id. and costs 405. subject to the opinion of
the court upon the following case : —
That David Wood, being a clerk to the plaintiff, a brewer, and receivin*'
money ft'om the plaintili's customers, and als(j negotiable notes for the
plaintiff's use in the ordinary course of business, paid several sums with the
said money and notes at different times, to the amount of 459/. 4s. id. to
the defendants upon the chances of the coming up of ticliets in the State
Lottery of 1772, contrary to the lottery act of the said year 1772.
The plaintiff and the said Wood's sureties have released him.
The question was, Whether the said Wood ought to have been admitted
as a witness to prove the above case, and supposing his evidence admissible, l\^ ^
whether the plaintiff is entitled to recover in this action.
Mr. jDavetipot-t for the plaintiff.
Mr. Bidler, contra, for the defendants.
Lord Mansfield, after stating the case. As to the first question there
can be no doubt but that Wood was an admissible witness. In Bush v.
Eawlius, in debt upon the Stat. 2 Geo. 2, c. 24. against bribery, a man who
had taken the bribery oath was held a competent witness, to prove that he
himself had been bribed.
The next question is. Whether the plaintiff can maintain this action %
This is a liberal action in the nature of a bill in equity ; and if, under the
circumstances of the case, it appears thatThe defendant ^amiot iu^con^
science J^8tain what is the subject-matter of it. the jplaintiff may well
support this action.
There are two sorts of prohibitions enacted by positive law, in respect
of contracts. 1. To protect weak or necessitous men from being over-
reached, defrauded, or oppressed, lliere the rule in pari delicto jiotior est
conditio defendentis, does not hold ; and an action will lie ; because wjiglg
the defenjaiit imposes upon the plaintiff it is not par clelictMm,
The case of Tomkins v. Barnett has been long exploded. In Bosanquett
V. Dashwood, Lord Hardwicke and Lord Talbot both declared their dis-
approbation of it : for in that case there was not par delictum. In the case
of money given by a bankrupt or his relations to a creditor, to sign the cer-
tificate, the transaction is against the express prohibition of the act of
Parliament, and both are parties to it, but not equally guilty ; for the
bankrupt is an oppressed party ; and therefore the action will lie.
The next sort of prohibition is founded upon general reasons of policy
and public expedience. There both parties offending are equally guilty ;
par est delictum, et potior est conditio defendentis. The prohibition in the
lottery act, Stat. 12 Geo. 3, c. G3, is of this sort; and in this case no doubt
W/^^^ ^-^^
580
BRISTOW V. EASTMAN.
[chap. VI.
-i
but the defendants and the witness Wood were equally guilty. Therefore
at Guildhall, upon the first impression, I was of opinion against the plain-
tiff; because I thought that the master could not stand in a better situ-
ation than the servant, and the servant was clearly pariicejys criminis. But
I changed my opinion ; I thought, and now think, the plaintiff does not
sue as 8tandin^_in the place of Wood, his clerk : for the money and notes
whicTPVVood paid to the defendants are the identical notes and money of
the plaintiff. Where money or notes are paid bona fide, and upon a valu^
able consideration^ they never shall be brought ^ack by the true ownerj
but where^they come mala fidle into a person's_hands,Jbhey are in tbejmture
of specific property ; and if their identity can be traced and ascertained,
the party has^^right l;o recover, if is of public benefit and example that
he should ; but otherwise, if they cannot be followed and identified, because
there it might be inconvenient and open a door to fraud. Miller v. Race;*
and in Golightly v. Reynolds, the identity was traced through different
hands and shops. Here the plaintiff sues for his identified property, which
has come to the hands of the defendants iniquitously and illegally, in
breach of the act of Pai-liament. Therefore they have no right to retain it,
and consequently the plaintiff is well entitled to recover.
The three other judges concurred.
Judgment for the plaintiff.
^.^x
BRISTOW et al, Assignees of CLARK & GILSON, Bankrupts, v.
EASTMAN.
At Nisi Prius, before Loud Ken yon, C. J., July 18, 1794.
[Reported in 1 Espinnsse, 172.]
Assumpsit for money had and received to the use of the plaintiffs, with
the usual money counts.
The case as it appeared in evidence was, that the defendant had been
apprentice to the bankrupts before thcir^ bankruptcy ; thatch is principal
emj)T()yment while he was in their service had been in passing the ships
engaged in their trade at the Custom House, in making payments and
receiving money in that employment; but that in making out his returns
to them of The monies expended on that account, he had made mauy~very
considerable "overcharges^ by wTiich he had defrauded them of a very con-
siderable sum of money ; to recover back which was the object of the present
action.
Mingay for the defendant, rested his defence upon two points, the first was,
that during the time that he had been so employed by the bankrupts, that
1 1 BuiT. 452.
CUAP. VI.] LIGHTLY V. CLOUSTON. 581
he was an infant, and that, therefore, an action for money had and received, /^^ y /
which was founded on a contract, could not be maintained against hini.^ '
Upon the first point Lord Kenyon said, That he was of opiniun, that
infancy was no defence to_the_ai^onJ That Tnfants were liable to actions ex ^' /
delicto, though not ex contractu, and though the present action was^ in its ' — "^"^ ' '
fofrETan action of th"e~ latter^descnption, yet it was of the former in point
of substance ; that if the assignees had brought an action of trover for any ^ ^ a,^*>. - .
part of the property embezzled, orjxn action grounded on the fraud, thai,^^- ^
unquestionably infancy would ha3'e_b.een_iL0^dcfen.ce,_and as th-CLohject of_., ^. -,
the^ present action was precisely the same, that his opinion was that the ^ __
same rule of law should apply, and that infancy was no bar toJ^ieap-tioTi. ^ ^ ^^r^
The plaintiff had a verdict.
Garrow and Lamhe for the plaintiff.
Mingay and Marryat for the defendant.
.^^
LIGHTLY V. CLOUSTON.
In the Common Pleas, January 29, 1808.
[Reported in 1 Taunton, 112.]
n
This was an action of indebitatus assumpsit "for work and labor performed , ^^-^^. lUJo-^
for the defendant at his request, by one Thomas Sinclair, the apprentice of tiv .^vTr>^.» '^"c-.
the plaintiff legally bound to him by indenture for a term of years, at the ^^ /y. / , ^^^^^ ^
time of the work and labor so performed existing and unexpired, and to ' ^v '
the profits and receipts of whose work and labor, the plaintiff was, as the """'' '^*''*^
master of the said apprentice, by law entitled." The defendant seduced yv.v.- f^^ srC
the apprentice from on board the plaintiff's ship in Jamaica, and employed d ^,,,^ i^c^ r u.
him as a mariner to assist in navigating his own ship from Port Royal, home. / ,. ,
The cause was tried at the sittings after Trinity term last, before Mans- ,f'^ ^ / ''*^'**
FIELD, C. J. The jury found a verdict for the plaintiff, subject to the l^ ^-^ - i'i'*'!-^
opinion of the court on the following objection, namely, that the plaintiff fv^^ » J^^tA^ \^
ought to have declared in a special action on the case, and that indebitatus ^ ^^<r{(iSU^
assumpsit would not lie. i^f^ '?mAvCj j
Accordingly Best, Serjt., having on a former day obtained a rule nisi for /
setting aside the verdict and entering a nonsuit, r>^ t*^\ <-»^'
Shepherd, Serjt., now showed cause. It has been decided that this dcclara- ^*^^ t-^^-^o'J ■
tion is good, in the case of Eades v. Vandeput,'-^ which was an action brought ; / /
expressly for the wages earned by the plaintiff's appi-eiitice, who had been?-- r>r<. L M^^
improperly impressed, and compelled to serve on board a ship of war ; and ^ ^', JyCfU,^^^
the court there held that the plaintiff might recover. Barber v. Dennis.* ^^ e^^^ii:^,-^
f ~~... I
1 Only so much of the case is given as relates to this point. — En. , »^i.f->- "ft^C/ 'i" ; a^^ ct. r
f 2 5 East, 39. 3 1 Salk. 68.
582 LIGHTLY V. CLOUSTON. [CIIAP. VL
The widow of a waterman was held to be entitled to two tickets which had
been earned by her apprentice during his service at sea. In Smith v. Hod-
son,^ the court expressly determined, that although trover would have lain
for the goods, yet the assignees might atBrm the fraudulent contract of the
bankrupt, and recover the price as upon a sale made by themselves.
Best, Serjt., contra. The case of Eades v. Vaudeput, as it is now stated,
cannot be law. An action might perhaps have been maintained in that case
to recover the wages in the shape of damages for the tort ; but all the work
and labor which the apprentice there did must have been done for the
king ; since even the services of such servants as are allowed to the captain
of a king's ship are wholly gratuitous to him. And if the apprentice
worked for the king, that action could not be maintained against the captain.
Macbeath v. Haldimand.^ Barber v. Dennis was a case of trover, which can
furnish no authority for this form of action, and it is of the less weight
because one point which is there reported cannot be law, namely, that it is
immaterial whether the person who performed the service was legally an
apprentice or not. The analogy drawn from that class of cases, in which
goods have been tortiously taken and sold, and the plaintiffs have been
permitted to waive the trespass and sue for the proceeds of the sale, as
/_ money had and received to their use, is not applicable here. It is of
■^ n^-'^'t^..^^ pernicious tendency more largely to extend this form of action, in which
the defendant is not apprised by the declaration of the nature of the claim
that is made on him. It is necessary to preserve the distinction between
causes of action which arise ex^delicto, and those which arise ex contractu,
or there ^ould be no limits to the perversion that would ensue. A cause
waTtried^belore Eyre, C. J., in whlcEThe plaintiff declared in assumpsit,
that the defendant undertook not to beat him in a voyage to the East Indies.
Ey'RE, C. J., held he could not recover.
Mansfield, C. J. It is difficult upon principle to distinguish this case
I ; from those that have arisen on bankruptcies and executions, and in which
it has l)een held that trover may be converted into an action for money had
^11 and received, to recover the sum produced by the sale of the goods. I
should much doubt the case of Smith v. Hodson, but that I remember a
case so long back as the time of Lord Chief Justice Eyre in the reign of
George the Second, in which the same thing was held. I should have thought
it better for the law to have kept its course ; butit has now been long settled.
that in cases of sale, if the plaintiff chooses to sue fur the produce of that
8.aTc^ he niay_cio itjlind the practice is beneticial to tlie defendant, because a
jury may give in damages for the tort a nuich_greater sum than the value
fl ofThe goods. In tlie present case the defendant wrongfully acquires the
lalior of the apprentice ; and the master may bring liis actijm for tjigjje-
v^<. duction. But he may also waive his right to recover damages for tiie toil,
and may say that he is entitled to the laboFof his^pprenticej^thatjifl-ia
1 4 T. K. 217. 2 1 i\ R, 172.
CHAP. VI.] HILL V. rERKOTT. 583
consequently entitled to an eqiimdeiilJbrJiiaUaJjOT^^ which lias been bestowed / f y.
in the service^f the defendant. It is not competent for the defendant to
aiTsrweiT^ha^^he obtained that labor, not by contract with tl»e master, but
by wrong; and that, therefore, he will not jjay for it. This case approaches
as nearly as possible to the case where goods arc sold, and the money has
found its way into the pocket of the defendant.
Heath, J. So long back as the time of Charles the Second, it was held
that the title to an office, under an adverse possession, might be tried in an
action for the fees of the office had and received ; and Holt, C. J., held it
clear law, that if a person goes and receives my rents from my tenants, I
may bring my action against him for money had and received. It is for
the benefit of the defendant that this form of action should be allowed to
prevail, foiTFlidmits of aTsePofi^Ttd-dedttctions, which coHId not be allowed
IrranTactrouTfameS on the tort.
liule discharged.
HILL V. PERROTT.
In the Common Pleas, November 9, 1810.
[Reported in 3 Taunton, 274.]
Best, Serjt., moved to set aside the verdict which had been found in this
cause for the plaintiff", at the sittings after the last Trinity term before
Mansfield, C. J., in London, and to enter a nonsuit. The action was for
goods sold : there were special counts upon a contract of the defendant to
pay for goods to be delivered at his request to Jean Meers Dacosta ; but
the evidence being of a contract to pay for goods to be delivered to Isaac
Mendez Dacosta, those counts failed the plaintiff. The evidence was, that
goods to a considerable amount were looked out to be delivered to Dacosta,
for which the defendant undertook to accept a bill at six months to be in-
dorsed by Dacosta. The goods were delivered to Dacosja, and aftejwards
were found in the defendant's possession : the whole was a swindling trans-
action, in which Dacosta was a mere instrument. Dacosta was Insolvent,
and the~defendant, having become a guarajvteejor^HimTaisisled hiriTto^Buy
"these goods, which were, the moment after, made over to himself for his
own indemnity. The only count that would serve the plaintiff was indeb-
itatus ass2tm2Jsit for goods sold, upon whic1file"obtained a verdict.
Best, Serjt., on this day moved toset aside tlieverdict and enter a non-
suit. Whatever difficulty lie might have in defending his client at another
bar, there was no contract of sale, he said, between him and tiie plaiutifi".
The__court held, that the law would imply_^a contract to pay for the
goods, from the circumstance_of their having been the plaintiff's property,
and having come to the^ifendant's possession, if unaccounted for; and ho
i
584 FOSTER V. STEWART, [CIIAP. VI.
could not be permitted to account for the possession by setting^ up the sale
to Dacosta, which he had himself procured by the most nefarious fraud,
because nolnaifmust take advantage of his own fraud ; therefore mdebitatus
assumpsit lay for the goods, and the veTdict could be supported, and they
He/used the rule.
f /^F P ^^ 0
FOSTER V. STEWART.
In the King's Bench, November 15, 1814.
[Reported in 3 Maule 4- Selwyn, 191.]
Assumpsit for work and labor by the plaintiff and his servants, and the
' money counts. Plea, 7ion assumpsit. At the trial before Lord Ellen-
.; BOROUGH, C. J., at the London sittings after last ^lichaelmas term the
y_ ^ 0,y_^ plaintiff was nonsuited, with leave to move to enter a verdict in his favor,
./ witli Vll. damages, if the court should think the action maintainable in
^*^*'*^'^ '"that form. And upon a rule nisi obtained for that purpose, the court, on
^^r*y^*', .^.'^^liowmg^ cause, directed a case to be stated, the material flxcts of which
/- . are as follows : —
/ The plaintiff, a ship-owner in Loudon, by indenture of the 2d of Decem-
'^ *""*** *** ber, 1811, took one S. Plumpton to be his appi-entice for six years, and
"i,^ A,^!^ J^t^ sent him on board his (the plaintiff's) ship on a foreign voyage. The de-
rr..^ ^ l^:Z^ fendant is master of the ship "Guildford" of Shields, and in August, 1812,
^^_^ . whilst his and the plaintiff's ships were Ij'ing at St John's, New Brunswick,
^^y^^ Plumpton having, as he said, been ill treated by the master of the plaintiflF's
^/-'^ •<*- w^'-'-ship, absconded, and went on board the defendant's ship, where he secreted
/ himself without the defendant's knowledge for two davs, and until after the
f^
L-'V^^r^^c ts^
. defendant had weighed anchor to sail from that place. When they had
'^ , *^'*^got about a mile from the land Plumpton discovered himself to the defend-
-'^,y*'**'-™ant, and told him who he was, and from what ship he had deserted. After
^/>cr<^_^ (^^ this, the two ships in the course of their passage to Halifa-x were once
^ or twice within hail of each other, but the defendant did not communicate
/ * ' ■''"^''^ to the master of the plaintiff's ship, that he had Plumpton on board. The
. -i^/te. <i k i'-^efendant carried him in his ship to Halifax, to which he worked his pas-
jU^J^j, y„„-r~^ ^"^g"^? ^"d ^'^"' which he received his food. On the arrival of the defendant's
y ^ ship at Halifax, Plumpton wished to leave her, but the defendant per-
" / ^' / ' suaded him to continue on board, and told liim he would eitlier give him
^ j'^;^ ^i/(f wages or supply him with clothes and pocket-money. At this time the
^^ ' ' defendant's ship was but thinly manned ; and by this persuasion Plumpton
"^ sailed in her to England, and arrived at Grimsb}', and from thence sailed
'~'*'"'^'^^^*^^'' to Shields, where lie was discharged, and immediately returned to London
^^ „Jj^ ,^^^. £,,_^j^^ sun-endered himself to the plaintiff. During the whole of this period
Plumpton did duty as one of the crew of the defendant's ship; and the
CHAP. VI.] FOSTER V. STP^WART. 585
defendant has not paid him any wages, or given him any clothes or pocket-
money, and 12/. is a fair compensatiou for his services from Hahfa-x to
Shields.
The question for the opinion of the court is, whether the plaintiff is en-
titled to recover, — if he is, the rule to be made absolute ; if not, the rule to
be discharged.
Gaselee for the plaintiflF.
Scarlett, contra.
Lord Ellenborough, C. J. When this case was before me at nisi piius,
the plaintiff's right to recover was rested upon Eades v. Vandoput ;^ and it
occurred to me at that time, and afterwards still more strongly upon look-
ing into that case, that it is but a very loose note ; for as to the defendant
Vandeput, who was in the king's service, supposing an action for work and
labor could have been maintained, yet it was work and labor for the king,
and not for Vandeput; and therefore in his character of captain of a ship
of war he could not have been the object of such an action. It does not
appear however by the note of that case what the form of the action was ;
if the captain had enticed away the apprentice, perhaps he might have been
liable to tort. But under the uncertainty both of fact and fox-m which
attends that case, I think no very material argument is to be derived from
it. However there are two other cases which do afford an argument more
pregnant and important for the court to consider ; I allude to tlie cases of
Hambly v. Trott, and the more recent case of Lightly v. Clouston. I own
I should be more inclined, for the better preserving the simplicity of actions,
to hold that where the seduction is the cause of action, the action ought to
be in tort for the seduction ; still I should go the length of holding with
the case in Salkeld,^ that where the apprentice in the course of his service
had acquired a chattel, trover would lie for it ; or if that chattel had been
converted into money, that the master might follow it in all its representa-
tive forms. But when it comes to substituting the apprentice as an agent
of the master for forming a specific contract, it seems to be going somewhat ^j v^k
fartEeTthan the necessityJoflthelxia^-Jzequii^v^-JlLe^^'liho to
Hambly v. Trott appear to warrant. What Lord MzVNSpield said in
Hambly v. Trott, " that if a man take a horse from another, and bring him
back, trespass will not lie against his executor, though it will against him,
but an action for the use and hire of the horse will lie against the execu-
tor," I can only conceive to be founded on an assumption that the action
for the use and hire of the horse would also have lain against the testator,
because an executor is liable upon a supposition that his testator would also
have been liable to the same species of action ; for an executor is lialilo in
the representative chai-acter which he bears to his testator. The diiliculty
therefore is in taking the first step, and saying that the tort may be
waived for an action for use and hire upon the contract ; that being some-
1 5 East, 39. ^ Barber r. , Dennis, Salk. 6S.
586 FOSTER V. STEWART. [CIIAP. VI.
what different from an action for money had and received for the produce
of goods sold by the sherilF; or the case of Smith v. Hodson, where assump-
sit was held to lie by the assignees upon a contract made with the bank-
rupt. In this case, upon the authority of Hambly v. Trott, in which the
power to waive the tort and take to the contract is put by Lord Mansfield,
and illustrated by the case of cutting down trees, it is argued that an ac-
tion for the work and labor of the apprentice, that is, for the benefit ac-
quired by the defendant from the service of the apprentice, is maintainable.
In Lightly v. Clouston the same case was before the court, and it seems as
if the Chief Justice upon that occasion entertained nearly the same doubts
as I do now ; but he appears to have yielded to the authorities, and to
have considered that the master might waive the tort and adopt the con-
tract. I think therefore that these cases, to the authority of which I bend,
go the length of the present case, though I must confess that I do not
accede to them with the same conviction that I do to many others.
Le Blanc, J. I think it has been decided in many cases that tort may
be waived, and an action on contract substituted. I think also that by the
help of a few principles the court will be warranted in determining this
case in favor of the plaintiff. It is clearly established by all the cases that
the master is entitled to the labor and earnings of his apprentice, during
the whole term of his apprenticeship. It is likewise established by the
cases, that if those earniligs have got into the apprentice's hands, the
master may claim and recover them. That was clearly determined in
the case cited from equity, where the apprentice, having left his master and
gone on board a privateer, became entitled to a share of a prize ; the case
was afterwards compromised, but the opinion of Lord Hardwicke was, that
the master w^as entitled to all that the apprentice earned ; and although
the share had not got into the apprentice's hands, yet it was to be con-
sidered as earnings, though in the shape of a share of prize, because it was
in the nature of a compensation for the labor and industry of the appren-
tice. Also in several cases it has been determined with respect to the
sheriff who sells goods, or with respect to a person who is in possession, by
wrong, where the party might bring tort if he pleased, yet he may main-
tain an action founded on contract. In the cases which have decided that
money had and received may be maintained without any privity between
the parties, though it has been truly said that those decisions are founded
upon the principle that the money belongs in justice and equity to the
jtlaiutiff, yet in order to attain that justice, the law raises a promise to the
plaintiff as if the money were received to his use, which in reality was
received V)y a tortious act. These instances are independent of those put
by Lord Man.si'IKLD in Hambly v. Trott ; which he puts as clear law, though
lie does not cite authorities for them. As in the instance of the executor
being chargeable for the trees cut by his testator, that imports that the
owner of the trees might waive the tort, and bring an action as for trees
CHAP. VI.] FOSTER V. STEWART. 5S7
sold and delivered. In the same manner the case of a man takuif' another's
horse imports that the trespass may be waived, and an action for tlie use
and hire of the horse substituted. And these cases are independent of
Lightly V. Clouston, which is a determination on this particular point. As
to Eades v. Vandeput,^ it would hardly be a sulMcicnt authority as it stands
upon the report alone, without farther inquiring into the form of action, for
the court to found their decision npon, e.xcept so far as it supi)orts the
general proposition that I set out with, that the master is entitled to the
earnings of his apprentice, and that the court will follow those eaniings
wherever it can. Here undoubtedly the plaintiff might have maintained
tort for the wrongful detaining ofTiTs apprentice ; Uut, inastnuchlis^ tHe de-
fendant has had a BeneTTciat' service of the apprentrce, the plamtiU may
waive the tort and require of him the value of^the benefit. I should also
be inclined to consider that as there was a contract, the master might avail
himself^f jt, as the apprentice was under an incapacity of making any con^
tract except for the benefit of Jiisjnjxster. I should consider it in the same
light as where a party purchases under the sheriff, and has not paid, the
party interested may avail himself of the contract made with the sheriff.
Upon these grounds I think this action is maintainable.
Bayley, J. To decide that this plaintiff is not entitled to recover, would
be to overrule the decision of Lightly v. Clouston, and also to impeach the
doctrine in Hambly v. Trott. Both cases appear to have been well consid-
ered, and no contrary authorities have been produced ; and I am not aware
that they contain principles inconsistent with others. It has often been
laid down that you may waive the tort and bring assumpsit ; and in no in-
stance thaFT can foresee, will that T)e^pre]udIciano the defendant j^because
in assumpsit the party cannot recover more than in an action of tort ; in
many instances he will recover less. And oftentimes there would be a de-
fect of justice if this could not be done. After the death of the tort-feasor
the action as far as it respected the tort would not be maintainable, and
therefore there could be no remedy by way of action at all unless the tort
could be waived. Thus in the case of taking goods, unless the tort could
be waived, no action at all would lie after the party's death. Founding
myself therefore on the principles laid down in Hambly v. Trott, and upon
the decision of Lightly v. Clouston, I think this plaintiff is entitled to
recover.
Rule absolute.
1 5 East. 39.
J-^-tryt.^
)88 ABBOTTS V. BAKKY. [CIIAP. VI.
ABBOTTS AND Another v. BARRY.
In the Common Pleas, November 25, 1820.'
[Reported in 2 Broderip §• Bingham, 369.]
*•*— ^.>.<' —rv«^.;^<,. Assumpsit for goods sold and delivered, money had and received, and
^ the other money counts.^ The following case, in substance, was proved at
-Cc^ --'-«-^,v^/'T;he trial before Park, J. (London sittings after Trinity term last) : Phil-
W-/- T ^ .^Q-*^:.^/,-iips, being indebted to the defendant, for the purpose of discharging the
debt procured wines from the plaintiffs, by a string of contrivances, which
^ amounted to a gross fraud, paying the plaintiffs only half the price of the
"^^^^ines, and giving a bill, which was of no value, for the residue. In these
■^/^ ii;;::^ .rvvi, contrivances, the defendant was prime mover and participator, and fur-
.j^ ^ ■ / niched Phillips with the money to pay in part. The wines were then,
. ' ^ under defendant's direction and brokerage, sold in Phillips's name, to
*^y^''*^-^i*^ Bunyan, who accepted a bill drawn by Phillips for the amount, which
?<»^^-^— oy^/.^.-pl^iUipg immediately indorsed to the defendant.
VyVi6/?^,,^j L.?i. The jury found a verdict for the plaintiffs, on the ground that a gross
^j,/r;5-«*«*r;^,^ fraud had been practised on them by the defendant; the learned judge
.«^ r^ ISc^.i-U, giving leave to the'^plaintiff to move to set aside this verdict and enter a
^ ^X- eu^.L^iJ^i^ nonsuit. Accordingly,
^-.r^i^rx^^^-^'- Vaughan, Serjt., having, in the last term, obtained a rule nisi to that
^^.^>^, Z^ffect.
^^ '."^ ^^_^'' / Pell, Serjt., now showed cause.
^<Vr;^ tLaZ^ ^^^9^^^^> Serjt., co7itra.
^^'^ /^ ' Dallas, C. J. I think that this rule ought to be discharged, and upon
cA-^t-y.-w* -r^^^,.rf|^g }^\^\\\ gi-ound, that the jury have found a fraud in the defendant, com-
v' «^"Sc.-^..;,4'=c,►^<^l^itted by him through the medium of Phillips. Nor can I distinguish
:'^,^.^^. t,^-,*-^ 2^ between Phillips and the defendant in the prosecution of this fraudulent
, f transaction, for Phillips stands in the light of agent to the defendant
/^^/^^r throughout the whole contrivance. But it is not necessary to go that
^ -ww.-»w=-,^i^^ength, nor do I wish to come to any decision uncalled for by the case
r^ before the court. I confine mvself, strictly, to this. Here was a sale of
wines, the property of the plaintiffs, brought about by fraud and collusion,
^^s.^<. ^ 17^^ . j^ which the defendant, who was to reap the benefit of such sale, was prime
J mover. Now, it is admitted, that a sale effected by fraud wt)rks no change
of prnpm4y^2^^hfi_j5npcr^ tlion, in this case, rcmainetMii^the^oy^ "
^"owner, and therefore I hold the pi-ofits of the sale in the hands ot the
defendant to be so much money had and received bv him, to the use of
' There was a special count, which was abandoned.
■•^ la the case of a sale induced by fraud a voidable title passes. Benjamin on Sales.
4 Am. Ed. 474. — Ed.
CHAP. VI.] FERGUSON V. CARRINGTON. 5.S9
tbej>laiiit.iff's, vvlifl were the original pro])rietors. On this ground,^! uiii of
opinion, that tliis application_must be dismissed.
Park, J. This was a case of the most gross fraud, practised by the de-
fendant on the plaintiffs, through the instrumentality of Phillips, and no
violence will be necessary to bring it within tlie decided cases. Hill v.
Perrott ^ is not, in principle, to be distinguished from this case ; and I have
a manuscript note of an additional point which was ruled in the case o(
Corking v. Jarrard.^ It appeared there, that a servant had received money
from her master, and applied it to the purposes of lottery insurance. Lord
Ellexbouough held, on the authority of Clarke v. Shee,^ that the master
might recover the money back from the lottery-office keeper, as money had
and received.
BuRROUGH, J., concurred. Rule discharged.
FEEGUSON AND Another v. CARRINGTON.
In the King's Bench, January 24, 1829.
[Reported in 9 Barnewall Sf Creswell, 59,]
Assumpsit for goods sold and delivered. Plea, general issue. At the
trial before Lord Tenterden, C. J., at the London sittings after last term,
it appeared that the plaintiffs, between the 29th of March and the 12th of
May, 1828, sold to thedefendant various quantities of goods,^a,nK>unting in ^
the whole to 282^., which, by the contract of sale, were to be paid for by
bills__accepted by the defendant ; and that such acceptances were given, but
had not become due at the time when the actiorTwas^commencedT It ap-
peared further, that the defendant immediately^after receiving the goods
sold them at reduced prices" to other persons. rE~lvas contended, under y ^
tEese circumstances, that it was manifest that the defendant^purchased the
goods with the preconceived~design~l)f not paying for them ; and that, as
Ee had sold tliem, the plaintiffs might maintain an action to recover tEe"
value thoiigh_theT)nis werelTot due. Lord Tenterden, C. J., was of opin-
ion, that if the defendant had obtained the goods with a preconceived design
of not paying for them, no property passed to him by the contract of sale,
and that it was competent to the plaintiffs to have brought trover, and to
have ti'eated the contract as a nullity, and to have considered the defendant
not as a purchaser^of the goods, but as a person who had tortiously got
possession of them ; but that the plaintiffs bybringing assumpsit had af-
firmed that, at the time of the action brought, there was a contract existing
between them and the defendant. The only contract ^royed_wasj;^ale of ^
goods oiTcredit. The time^ofcredit had not expired, and consequently the
action was brought too soon.
1 3 Taunt. 274. « 1 Camp. 37. ^ Cowp. 197.
590 OUGIITON V. SErriNGS. [CIIAP. VI.
F. Pollock now moved for a new trial, and contended, that the phiintiffs
might sue for the price of the goods without waiting until the expiration
of the credit given ; that credit having been obtained in pursuance of a
fraudulent design to cheat the plaintitis.
Bayley, J. The plaintifl's have affirmed the contract by bringing this
action. The contract proved was a sale oji credit, and where there is an
express contract, the law will not implying.
LiTTLEDALE, J. At the time when this action was brought, the defendant
was not bound by the contract between him and the plaintiffs to pay for
the goods. The plaintiffs claim to recover for breach of the contract.
Parke, J. As long as Jhe contract existed, the plaintiffs were bound to
sue on that contract. They might have treated that contract aF void on
the ground of fraud, and brought trover. By bringing this action, they
affirm the contract made between them and the defendant. .
Eule refused.^
({y)yw^^
MARY OUGHTON v. SEPPINGS.
In the King's Bench, Trinity Term, 1830.
[Reported in 1 Barnewall <f; Adolplius, 241.]
This was an action for money had and received. Plea, general fssue.
At the trial before Garrow, B., at the summer assizes for the county of
Norft)lk, 1829, the following appeared to be the facts of the case: The
defendant, who was a sheriff's officer, on the 28th of May, 1829, received a
warrant from the sheriff of Norfolk to levy a sum of money on one Wins-
love. He took a pony-cart and harness, which Winslove at the time of
seizure was using ; his name was painted on the cart. Winslove lived as
a lodger with the plaintiff. She claimed the pony as hers, and gave notice
to the sheriff, and the defendant, that she would bring an action ; but it
was sold by the sheriff under the execution, and the defendant admitted
that he had received 8^. 10s., the sum which it produced at the sale.
Winslove was called as a witness on the part of the plaintiff; and he
proved that he had purchased the pony for her at her re(j[uest, and that he
had paid for it w ith money which she had provided. It appeared, however,
that at the time when the pony was purchased, and for several months
afterwards, the husband of the plaintiff was alive, but that after his death
the plaintiff fed the pony, and paid bills for its hay and shoeing, though it
was used as generally by Winslove as by tlie plaintiff. No probate of
will, or letters of administration, were produced. It was objected on the
part of the defendant, that, assuming even that the plaintiff might have
1 Ri;a(l V. Hutchinson, 3 Camp, ^bl ; Strutt v. Sinitli, 1 C. M. & \\. 312 ; Allen v.
Ford, 19 Pick. 217 accord. Cvnf. Dc Symons i*. Miiicliwirli, 1 Esii. 430. — Ed.
CHAP. VI.] YOUNG V. MARSHALL.
)9l
maintained trespass for the taking of the horse, she conM not maintain the
present form of action, which was founded upon a contract ; that the puny
having been the property of the husfcand, passed on his deatli to his ])er-
sonal representative, and it had not been shown that the phiiiitilf was
either executrix or administratrix. The learned ju(Jge thought tl)at the
plaintiffiiiliiM.^^^^ tort, and bring this action agamst the defendant,^
who had admitted that he had received the proceeds of The^aTe^lihd he
directed^ie jury to find_forjhej[laintiff^but reserved ITberty-to the de-
fendant tojnov^to enter a nonsuit. A rule ?im~having been obtained for
tbat purpose, Storks, Serjt., was now to have shown cause, but the court
called upon
Austin to support the rule.
Lord Tenderden, C. J. There was evidence here, though perhaps
slight, that the plaintifi" was in possession of the pony. If she was in
possession at the time when it was seized, she might clearly have maintained"
trespasTagamst a wrongdoer TXudTTf^e'might maintain trcspass7"sKe~may
waive the tort, and~maintam this^ction to recover the money which was
produced by the sale of the horse, and which the defendant has admitted
he received. '^ /
Bayley, J. It appears that the plaintiff was acting in the character of
owner of the pony, for she fed it. As against a wrong-doer, that is jjrinm
facie evidence of title. If she had sought to recover the produce of the
chattel against a person who had a cbnliictingTMeta'it, &he ought lu haver'
gone furtheFpBut as against a mere wrong-doer, not claiming any title
whatever to the chattel, I think the evidjnce_of_j!Qasassion_was sufficient.
The^aintiff was eitTier rightful executrix or administratrix, or executrix de
son tort. In either case she had a sufficient title to enable her to maintain
this action for money had and received against a person who wrongfully
retained in his hands the proceeds of a chattel belonging to her in one of
those characters.
LiTTLEDALE, J., concurred. Eule discharged.
YOUNG, Assignee op YOUNG, a Bankrupt, v. MARSHALL AND
POLAND, Sheriff of Middlesex.
In the Common Pleas, November, 19, 1831.
[Reported in 8 Bingham, 43.]
This was an action for money had and received, brought by the plaintiff,
as assignee of Young, a bankrupt, to recover the proceeds of certain goods of
the bankrupt sold by the defendants as sheriff of Middlesex, under a writ
of Jieri facias ; the commission of bankrupt having been issued against
Young on an act of bankruptcy anterior to the writ of ^. fa.
592 YOUNG V. MARSHALL. [CIIAP. VL
The defendants had no notice of the bankruptcy until after the levy,
when they paid the proceeds over to the execution creditor under an
indemnity.
A verdict having been found for the plaintiff,
Tadily, Serjt., obtained a rule nisi to set it aside, on the ground that the
action was misconceived, and ought to have been trover ; contending that
the action for money had and received did not lie, at least against a public
officer, where the money had been paid over and the property changed.
Wilde, Serjt., proceeded to show cause, when the court called on Taddy
to support his rule.
TiXDAL, C. J. The verdict for the plaintiff in this case may he supported
on a principle generally known and acknowledged in Westminster Hall.
This is an action by the assignee of a bankrupt against the sheriff of
Middlesex, on the gi'ound that he has sold, under afi.fa., goods^ belonging
to the plaintiff, and which he ought not to have taken. But no party is
bound to sue in tort, where, by converting the action into an action of con-
tract, he does not prejudice the defendant ; and, generally speaking, it is
more favorable to the defendant that he should be sued in contract, because
that form of action lets in a set-off, and enables him to pay money into
court. It has been contended, however, that the action does not lie here,
because the defendant has paid the money over to a judgment creditor
without notice of the act of bankruptcy. If that were so, I should agree
that the money was no longer in the defendant's hands to the use of the
plaintiff ; but money paid over on an indemnity may be said not to have
been paid over at all ; the defendant, however, paid after notice, for he
paid upon an indemnity, and that could only have been exacted on knowl-
edge of the facts. The case, therefore, falls within the general rule, that a
party is not bound to sue in tort, where, by suing in contract, he produces
no injury to the defendant.
Park, J. The indemnity is of itself strong evidence of notice before the
payment.
BoSANQUET, J. By relation to the act of bankruptcy, the property was in
the plaintiff at the time of sale. The plaintiff, who sues in an action for
money had and received, does not thereby affirm the acts of the sheriff, ho
merely waives his claim to damages for a wrong, and seeks to recover only
the proceeds of the sale. It is true the sheriff is a public officer, but if he
pays over upon an indemnity, he pays with notice, and the plaintiff, who is
entitled, must recover.
Aldkr-son, J. If ever the question should arise, whether the sheriff is
liable when he has sold and paid over without notice of the act of bank-
ruptcy, the court will determine it ; but no such question arises here,
because the indemnity is virtually notice. It has been urged, that the prop-
erty is changed by sale ; and so it is as between a purchaser and the jiarty
against whom execution has issued, but not as against a party whose goods
CHAP. VI.] CLARANCE V. MAUSIIALL. 593
have been wrougfully taken. By proceeding by the action fur money had
and received, the party merely waives his claim to damages for the seizure
and detention of the goods, and is content to sue for the proceeds.
liule discharged.
THE MAYOR, ALDERMEN, AND BURGESSES OF NEWPORT
V. SAUNDERS.
In the King's Bench, April 19, 1832.
[Reported in 3 Barnewall <f- Adolphus, 411.]
Assumpsit for tolls and, stallage. At the trial before Park, J., at the
spring assizes for Winchester, 1832, the jury found a verdict for the plain-
Jtiflfs_on_the_coimtjOT^t^^ Is. damages ; and were discharged~or
Jjie issue as to thejtolls.
Coleridge, Serjt., now moved for a rule to enter a nonsuit.
Lord Tenterden, C. J. I do not see any objection to the form of action.
Tolls may be recovered in assumpsit, and no proof is given of anything like
a contract by the party against whom the claim is made. Evidence is given
of the right to receive them, and that is always deemed suflScient. Stallage
is not dislinguistlabre from-toHs in that lespuct; — The party entiHecTto'
stallage may waive The tort. In the Mayor of Northampton v. Ward ^ the
court decided that trespass was maintainable ; but what was said as to
bringing debt or assumpsit was extra-judicial.
LiTTLEDALE, J. Assumpsit Hcs for the use and occupation of premises
at the suit of the owner. Now stallage is a satisfaction to the owner of the_
soil for the liberty of placing a stall upon it. If assumpsit be maintainable
in_the one case, there is no reason it should not in the other.
Parke and PattesonTTJ., concurred. Bute refused.
CLARANCE v. MARSHALL.
In the Exchequer, Hilary Term, 1834.
[Reported in 2 Crompton ^ Meeson, 495.]
Debt for money bnd nnd rf-cfijvf-d. Plea, Nil debet.
A verdict Jiaving been given for the plaintiff, Coleridge, Serjt., in Michael-
mas terra last, obtained a rule to enter a nonsuit, in pursuance of the leave
reserved at the trial. ^
1 2 Stra. 1239 ; 1 Wils. 115.
2 The remaining facts are sufficiently stated in the opinion of Bayley, B. — Ed.
VOL. II. — 38
594 CLARANCE V. MARSHALL. [CHAP. VL
Erie showed cause.
C'ulerulr/e, Serjt., contra.
The judgment of tlic court was now dohvered by
Bayley, J>, There was a case of Chirance v. Marshall, which was argued
before us in the course of this term. It was an action for money had and
received, and the circumstances on which the plaintiff sought to found his
riglit to recover were shortly these : The plaintiff's wife was admitted j:o
some copyhold premises in the year 1810, whilst she was living with the
dclendaut, who was her^ fath.gr. This admittance took place soon after the
decease of her mother, who had been admitted to the same premises in
y -1804. 'The defendant's daughter was afterwards, iu^the year 1815, mar-:.
ried to the plaintiff in this action. The rents and profits of the copyhold
in question were received by the defendant from the time of Mrs. Clar-
^^**^^^'^-'y*^ . ance's admittance to the time of bringing the present action, and they
probably had been so received by him during his wife's lifetime. It was
insisted on behalf of the plaintiff, that the father must have been con-
sidered as receiving the rents subsequently to the admission of his daughter
on her behalf, and therefore that such receipt of rent did not constitute
, / _. an adverse possession as against the daughter, but that he was the agent
^^-^ to receive the rents for her until her marriage, and for the plaintiff her
^,^v.^fc^^^/^^^^,J3usband after that event. On this view of the case the plaintiff has
' J ' brought the present action for money had and received. Now, that is
^^ , a species of action in which if you establish agency clearly, why then you
' f-^ntA. t^M £ ^ T may treat the rents received by your agent as so much money received for
*^ ac-e— l-,"^:^*- yo^"' 'ise ; but you mtist make out most clearly that an agency subsisted
, in point of fact before you can mamtam an action for money had aiid
/ received, which is not an action in which rents received under an adverse
^-*-~*-^^2^/^^*-*-^ ■ holdmg or possession are recoverable by the rightful owner. The plaintiff,
■ ^ -u /o /■ tTierefore, was bound to give some evidence to show that the relation of
r/U principal and agent existed. In the present case there was no proof that
»-i ..^^.-.r- i,,r-*-^ the defendant received the rents as agent for his daughter, or in any_ other
- capacity than that of owner. The land was let by him in his own name,
y «^t-7i«-c-^ an^there was nothing to show that he ever admitted that he was acting
y J /merely as the father of the plaintiff's wife, or that his daugliter was the
7 principal, and he merely her agent. No proof of title in any party to these
_/_oy/ - y rents and profits was given in evidence, excejit through the medium of the
r , / court rolls. On those the title appeared to have been in the wife and
"^^ ^.^yi«<i*iJ,;j;daughter by their respective admittances; but it did not appear whether
the defendant was privy to the entries in the court rolls, or knew of the
admittances. It does not appear that he attended at the admittance either
of his wife or his daughter ; and, though you must clothe yourself with the
legal title by admittance, generally there is no great diflSculty in a party
obtaining admittance to a copyhold. In the absence of proof, however,
that the defendant had received the rents in question in right of his wife or
CHAP. VI.] CAMPBELL V. FLEMING. 595
daughter, or his daughter's husband, or as their agent, we are of opinion
that the present verdict cannot stand ; but, under these circumstances, wo
think it right that the plaintiff should have an opportunity of gTvtlTjr
evidence if he can of such agency ; and therefore, if he wish, he maylutvu
ajiewjrial upon payment of costs. Rule accordingly.
CAMPBELL V. FLEMING and Another.
In the King's Bench, April 18, 1834. 6'''2-T--^_.t^
[Reported in 1 Adolphus Sf Ellis, 40.]
Assumpsit for money had and received. Plea, the general issue. On
the trial before Denman, C. J., at the sittings after last Hilary term, at
Guildhall, the plaintiff proved that, in consequence of an advertisement in
the newspapers, he entered into a negotiation for the purchase of some
shares in a supposed joint stock mining company, and, upon representations
made to him by the agents of the defendants, became the purchaser of
shares to a large amount. After the purchase was concluded, he discovered
that the statements in the advertisement, and many of the representations
made to him in the course of the negotiation, were fraudulent, and that the
whole scheme was a deception. The real sellers of the shares were the de-
fendants. The action was brought to recover back the money paid for the
shares. On the cross-examination of the plaintiff's witnesses, it appeared
that, subsequently to the above transactions, the plaintiff" formed a new
company, by consolidating the shares originally purchased by him with
some other property ; and he sold shares in the new company, thereby
realizing a considerable sum of money. Evidence was further given on the
part of the plaintiff", to show that, at the time of the original purchase, an
outlay of 35,000/. was represented to him to have been made by the sup-
posed mining company in the purchase of property, which outlay in fact
had not amounted to 5000/., and that this part of the fraud was not dis-
covered by him till after he had disposed of the shares in the new company.
The Lord Chief Justice nonsuited the plaintiff".
F. PollocTc now moved for a rule to show cause why the nonsuit should
not be set aside and a new trial had,
LiTTLEDALE, J. It socms to me that this nonsuit was right. No doubt
there was, at the first, a gross fraud on the plaintiff". But after he had
learned that an imposition had been practised on him, he ought to have
made his stand. Instead of doing so, he goes on dealing with the shares ;
and, in fact, disposes of some of them. Supposing him not to have had, at
that time, so full a knowledge of the fraud as he afterwards obtained, ho
596 . MARSH V. KEATING. [CIIAP. VI.
had given up his right of objection by dealing with the property after he
had once discovered that he had been imposed upon,
Parke, J. I am entirely of the same opinion. After the plaintiff, know-
ing of the fraud, had elected to treat the transaction as a contract, lie had
lost his right of rescinding it ; and the fraud could do no more than entitle
him to rescind. It is said, that another fraudulent representation was sub-
sequently discovered. I cannot, however, perceive that the evidence goes
far enoiigli to show that such a representation was, in fact, made.
Patteson, J. No contract can arise out of a fraud ; and an action
brought upon a supposed contract, which is sliown to have arisen from
fraud, may be resisted. In this case the plaintilf has paid the money, and
now demands it back, on the ground of the money having been paid on a
void transaction. To entitle him to do so he should, at the time of dis-
covering the fraud, have elected to repudiate the whole transaction. Instead
of doing so, he deals with that for which he now says that he never legally
contracted. Long after this, as he alleges, he discovers a new incident in
the fraud. This can only be considered as strengthening the evidence of
the original fraud ; and it cannot revive the right of repudiation which haa
been once waived.
Lord Den MAN, C. J. I acted upon the principle which has been so
clearly put by the rest of the court. There is no authority for saying that
a party must know all the incidents of a fraud before he deprives himself
of the right of rescinding. Utile refused.^
0
MARSH AND Others, Plaintiffs in Error, v. KEATING, Defendant
IN Error.
In the House of Lords, June 25, 1834.
[^Reported in 1 Montagu Sf Ayrton, 582.]
This action was brought in pursuance of an order of the Lord Chancel-
lor for the purpose of trying the question whether the defendants below
and Henry Fauntleroy were at and before the date and issuing forth of the
commission of l)ankruptcy against them, and still are, indebted to the plaintiff
below, in any and what sum of money. ^ The declaration contained merely
1 A party rescinding a contract because of fraud cannot retain any of the benefits
received thereunder. — Lcakc, Digest of Law of Contracts, 395.
Tlie retention by an insurer of the premiums received on a policy of insurance which
he avoids on the ground of fraud, seems to be an established exception to this rule. —
2 Amould, Jjiw of Marine Insurance, 6 Kd. 1108; Friesmuth v. Agawam Insurance Co.,
10 Gush. 587. [Kd.]
2 Thi.s .sentence and the title of the case have been taken from the case as roportttd in
1 Bing. N. C. 198. — Eu.
CHAP. VI.] MARSH V. KEATING.
597
the common count for money had and received to and f<jr the uso of the
plaintifr. The defendant pleaded the general issue. The cause was set
down for trial at the London sittings after Hilary term, 1832, and a special
verdict was taken by consent, the substance of which is as follows :
That on the 10th of October, 1819, there was standing in the Bank of
England 12,000^. [here follow statements as to the mode of entry and
transfer of stock]. That Marsh received the dividends thereon in October,
1819, under a power of attorney dated 7th June, 1809, from Ann Keating
to Marsh, Sibbald, Stracey, and Fauntleroy, then composing the firm, and
paid them into the banking-house of Marsh & Co. to the account of Ann
Keating, who kept a banking account there. That on the 29tii of Decem-
ber, 1819, an entry was made in the transfer books of the Bank of England,
purporting to be a transfer of 9000/. stock, under power of attorney which
purported to be granted by Ann Keating to Fauntleroy, — to W. B. Tarbutt,
stockbroker to Marsh, Stracey, and Graham, then constituting the firm of
Marsh & Co. That this power of attorney was not executed by Ann Keating,
but her signature forged by Fauntleroy. That on the 11th of January,
1820, Marsh & Co. purchased for and caused to be transferred to Ann
Keating 3000/. stock, whereby there appeared 6000/. standing in the name
of Ann Keating, and no more ; ^ on the 5th of April, 1820, Marsh received
the dividends on this 6000/. stock, as the attorney of Ann Keating. That
since the 29th of September, 1819, numerous transfers of stock had been
made to and by W. B. Tarbutt, and that the 9000/. stock had become
blended in the bank books with other stocks standing in his name, and
appeared to have been transferred by him, and it was not possible to dis-
tinguish the account to which the credit of the 9000/. stock stood ; and
that no dividend warrant had since the 9th of December, 1819, been made
out in respects of the dividends on the 9000/. stock in favor of Ann
Keating, but to other persons appearing on the bank books to be the
transferees thereof.
That Ann Keating did not consent to and had no knowledge of the
transaction as to the 9000/.
That on the 10th of September, 1824, Fauntleroy was apprehended on a
charge of forging letters of attorney, was indicted and prosecuted by the
bank, and executed the 30th of October, 1824. That Ann Keating in-
formed the bank of the forgery as soon as it came to her knowledge ;
neither Ann Keating nor the bank indicted Fauntleroy for the forgery as
to Ann Keating's 9000/. stock. That Marsh & Co. kept an account with
Martin & Co., bankers ; that the usual pass-book was used, and that the
house-book of Marsh & Co. ought to correspond therewith. That Faunt-
leroy generally kept this pass-book locked up in his desk. That Fauntleroy
conducted the greater part of the business of the banking-house without
1 Oiisinally she had 12,000/. stock. Fauntleroy trausfoircd 9000/., leaving 3000/. ;
to which Marsh added 3000/., making 6000/., as above.
598 MARSH V. KEATING. [CIIAP. VI.
the interference of the other partners, who reposed great coiiildeiice in him.
That Fauutleroy made very many false entries and omissions in the house-
book, so that it did not correspond with the pass-book. That Fauntleroy
paid to Martin & Co., and drew out of their hands, considerable sums for
his individual use, which appeared in the pass-book, but not in the house-
book. That Fauntleroy also made very many false entries in the other
books of the firm, without the knowledge and in fraud of his partners, to a
large amount.
That on the 29th of September, 1819, Fauntleroy ordered Simpson, a
stockbroker, to sell out 9000Z. stock, described as Ann Keating's, who sold
it to Tarbutt for G018^. Simpson allowed Marsh &, Co. one half the usual
commission on such sales. The proceeds were paid to Martin & Co., on
account of Marsh &, Co. No entry was made of this sale in the house-
book, nor in any other book of Marsh &, Co., but only in the pass-book of
Martin & Co. None of the firm of Marsh & Co. could draw moneys out of
the banking-house of Martin & Co., but by drafts signed in the partnership
name.
That a commission issued against Marsh, Stracey, and Graham on the
16th of September, 1824; and on the 29th of October, 1824, one issued
against Fauntleroy.
That from April, 1820, up to the bankruptcy, credit was given to Ann
Keating for the dividends on 15,000/. stock, parcel thereof being the
9000/. stock before mentioned ; entries being made by Fauntleroy, or
under his immediate direction, as if these dividends had regularly been
received from time to time. That till the apprehension of Fauntleroy,
Messrs. Marsh, Stracey, and Graham were wholly ignorant of the forgery
on Ann Keating.
That after the bankruptcy Ann Keating applied to the bank respecting
the 9000/. stock, and received a letter from the bank solicitors, informing
her that she might prove against Marsh & Co., and that on assigning her
proof to the bank they would replace her stock. On the 1st of August,
1825, the bank paid Ann Keating the dividends on 9000/. stock without
prejudice, she engaging to tender a proof. Ann Keating, being examined
before the commissioners, signed an admission of some of the above facts,
and that her claim was prosecuted by and for the benefit and at the
expense of the bank, and that if it failed she insisted on her claim against
the bank ; and the verdict concluded specially.
In Easter term, 1832, judgment was entered up in the King's Bencli f^r
the plaintifl", without argument ; a writ of error was thereupon brought,
pro forma, in the Coiirt of Exchequer Chamber, and the judgment below,
without argument, was afiirmed. The judgments were entered witliout
argument, the object of the parties being to bring the matter before tlie
House of Lords without delay. From these judgments Marsh & Co. pre-
sented an appeal.
CHAr. VI.] MARSH V. KEATING. fjOO
Mr. Justice Park : —
The question amounts in substance to this : whether the produce of stock
formerly standing in the name of Mrs. Ann Keating, the plaintiir buluw,
but transferred out of her name on the 29th December, 1811), without her
authority, and under a power of attorney which had been forged by ono df
the partners of the defendants below, the bankers of Mrs. Keating, which
partner has been since convicted and executed for another forgery, can,
under the circumstances stated in the special verdict, be considered as
money had and received by the surviving partners to the use of the plain-
tiff below, and be recovered by her in that form of action. And after
hearing the argument, and after consideration of the fjicts stated in the
special verdict, all the judges who were present, at the argument, includ-
ing the Lord Chief Justice of the Common Pleas, who is absent at Nisi
Prius, and Mr. Baron Bayley, who has resigned his office since the ar-
gument, agree in opinion tliat such question is to be answered in the
affirmative.
The first objection raised against the plaintiff's right to recover, and
upon which great reliance has been placed, is an objection which, if allowed
to prevail, would be equally strong against the plaintiff's right to recover
damages in any form of action, and against any person. It is objected
that the plaintiff below has not sustained any damage by the alleged trans-
fer of the stock ; for that the power of transferring stock is a power given
by statute, and the exercise of such power is expressly restrained by the
statute to one mode only j namely, " by entries in the transfer-books kept
at the bank," which entry, it is enacted, " shall be signed by the parties
making such transfers, or their attorneys, authorized by writing under
their hand and seal," and that no other method of transferring stock shall
be good. Inasmuch, therefore, as the supposed transfer of the stock in
question has not been exercised by that mode, the entry in the transfer-
book kept at the bank not having been signed by the party making the
transfer, nor by any attorney authorized by writing under her hand and
seal, it is contended that it is altogether inoperative ; that the stock is not
taken out of Mrs. Keating's name, but still remains hers as fully as if no
transfer whatever had been made thereof; and the case of Davis v. The
Bank of England^ is cited and relied upon as an authority directly in point
in support of such proposition. But we hold it to be altogether unnecessary
on the present occasion to discuss the proposition above advanced, or the
authority of the case cited in support of it ; for although the proposition
may be true to its full extent, and the authority of the case above cited in
support of it may be free from all doubt or difiiculty, still, under the cir-
cumstances stated in the special verdict, we are of opinion that the plaintiff
below is at liberty to abandon and give up all claim to her former stock so
standing in her name, and to sue for the money produced by the sale of
1 2 Bing. 309.
600 MARSH V. KEATING. [CHAP. VI.
such stock as for her own money, which we think has been sufl&ciently
traced into the hands of the defendants below.
It is unnecessary to enhirge upon the extreme difficulty, or, more prop-
erly, impracticability, under which ^Irs. Keating would be placed, if, as
matters now remain, she should elect either to receive the dividends or to
sell her stock ; it is sufficient to observe that the special verdict finds that
when stock is sold, an entry of the transfer is made in the bank books, and
the name of the purchaser substituted for that of the seller ; that the divi-
dend warrants are thenceforth made out in the purchaser's name, who
receives the dividend, and the seller's name is no further noticed. Now, it
is obvious that a transfer under a forged power or by an impostor has all
the appearance, and unless impeached by the genuine stockholder to the
extent to which the same can be impeached, the same consequences, as a
genuine transfer; his name is entered in the bank books as the stock-
holder ; the dividend warrants are made out in his name ; and he, as the
holder of the warrant, has the right to insist upon the payment of the
dividends ; and in this particular case the special verdict finds that it is
not possible to distinguish the accounts, to the credit of which the plaintiff's
stock, so sold under the power of attorney, now stands. If the plaintiff
below, therefore, were to apply to receive payment of the dividends or to
sell the stock, she would be met with an insuperable difficulty. Although
the stock may, in contemplation of law, still be vested in her, it is certain
that she could not either receive the dividend or sell the stock, until she
had first compelled the bank to purchase, de novo, in her name, an equal
quantity, of the same stock.
Is she compelled to adopt this circuitous process, or is she at liberty to
abandon all further concern with her stock, and to consider the price which
was paid by the purchaser for that which was her stock to be her money,
and to follow it into the hands of the present defendants below 1
This, as before stated, appears to us to be the question reserved for our
consideration ; and upon this question we think her at liberty to give up the
pursuit of the stock itself, and to have recourse to the price received for it,
unless any of the objections which have been urged at your lordships' bar
should bo allowed to be available under the particular circumstances of
this case.
The general proposition that where a party who has been injured has
different remedies against different persons, he may elect which of them he
will pui-sue, is not called in question. If the goods of A. are wrongfully
taken and sold, it is not disputed that the owner may bring trover against
the wr<jng-doer, or may elect to consider him as his agent, may adopt the
sale, and maintain an action for the price ; but it is objected that such gen-
eral rule will not apply to the present case, on various grounds which have
been advanced on the part of the defendants.
Those objections appear to resolve tliemselves substantially into fiur.
CHAP. VI.] MARSH V. KEATING. 001
1st, It has been urged that the transfer in this case being an act not void-
able only, but absolutely void, it is incapable of being confirmed by any
voluntary election of the party. 2dly, That at all events in this case such
election is taken away, upon the grounds of public policy ; for that the sale
of the stock having been made through the medium of a felony, to allow
the maintenance of this action would in effect be to affirm a sale completed
through a felony, and would give the plaintiff a right of action, arising
immediately out of the felony itself. 3dly, That it does not appear, from
the facts foiuid in the special verdict, that the money produced by the sale
of the stock came to the hands of the present defendants under such cir-
cumstances as would constitute it money had and received by the defend-
ants below to the use of the plaintiff; and lastly. That by the subsequent
transactions between the plaintifi' and the Dank of England, she has lost
any right of action against the defendants, if she ever possessed it.
The first objection appears scarcely to apply to the present state of facts.
It was urged at the bar that a lease under a power being void on account
of a non-compliance with the terms of the power, or a lease under the
enabling statutes being void on account of the non-observance of the
requisites rendered necessary by those acts, such void lease cannot be set up
or confirmed by any act of the lessor ; but these instances only prove that
acts done to confirm the lease itself are nugatory, and that the estate of
the lessee remains precisely the same as before such acts of confirmation.
Here the former owner of the stock does not seek to confirm the title of
the transferee of the stock. No act done by her is done eo intuitu ; it is
perfectly indifferent to her whether the right of the transferee to hold the
stock be strengthened or not. She is looking only to the right of re-
covering the purchase-money ; and if, in seeking to recover that, she does
not by her election make the right of the purchaser weaker, it can be no
objection that she does not make it better. In fact, however, the interest
of the purchaser of the stock is so far collaterally and incidentally strength-
ened, that after recovering the price for which it was sold, she would
effectually be stopped from seeking any remedy against, or questioning in
any manner, the title of the purchaser of the stock.
As to the second objection, it may be admitted that the civil remedy is
in all cases suspended by a felony, where the act complained of, which
would otherwise have given a right of action to the plaintiff", is a felonious
act. Upon this ground, Mrs. Keating would have lost any right of action
which she could otherwise have had against Fauntleroy for the wrongful
sale of her stock, without her authority, by reason of the felony committed
by him, as the means of selling the stock. But this principle docs not
apply to the pi-esent case, upon two grounds. 1st, None of the present
defendants had any privity or share whatever in the felonious act ; there is
therefore no felony committed by them, in which the civil right arising
against them, supposing it to exist, can merge or be suspended ; they are
602 MARSH V. KEATING. [CHAP. VI.
innocent third persons. And 2dly, Fauntleroy, the person guilty of the
forgery, had suiiered the extreme penalty of the law before the action was
brought, — not, indeed, for the commission of this particular forgery, but of
another of the same nature ; and the present plaintiff having given to the
bank all the means in her power for prosecuting the felon, it became im-
possible, without any default in her, that he should be prosecuted and
punished for this felony. The case, therefore, falls within the principle
laid down by, though not within the precise circumstances of, the two cases
that were cited at the bar, — Dawkes v. Cavanagh ^ and Crosby v. Laing.*
As to the argument that to affirm this sale is to affirm a felony, that point
may be considered to have been decided in the cause of Stone v. INIarsh,^
with which decision we entirely concur. Lord Tbnterden, in giving the
judgment of the Court of King's Bench in that case, puts the question (page
565) in so clear a point of view that it will be better to transcribe his
words : " It was contended that the maxim of ratifying a precedent unau-
thorized act and taking the benefit of it, cannot apply to a void or felonious
act, and that here the plaintiffs were seeking to ratify the felonious act of
Fauntleroy, and were making that act the ground of their demand. In
this latter assertion lies the fallacy of the defendant's argument. The
assertion is incon-ect ; in fact, the plaintiffs do not seek to ratify the
felonious act ; they do not make that act the ground of their demand.
The ground of their demand is the actual receipt of the money produced
by the sale and transfer of their annuities. The sale was not a felonious
act, nor was the transfer, nor the receipt of the money ; the felonious act
was antecedent to all these, and was complete without them, and was only
the inducement to the Bank of England to allow tlie transfer to be made."
We think, therefore, upon the reasons above given, that this second objec-
tion falls to the ground.
But it is objected, thirdly, that the proceeds of the sale of the stock
never came into the hands of the defendants, so as to be money received
by them to the use of the plaintiff; and the consideration of this objection
involves two questions : First, did the money actually come into the posses-
sion of the defendants *? Secondly, if it ever were in their possession, had
the defendants the means of knowledge, whilst it remained in their hands,
that it was the money of the plaintiff, and not the money of Fauntleroy 1
As to the first point, the special verdict finds expressly that Simpson, the
V)roker, paid the sum of 0013^. 2s. G(/., being the amount of the sum I'cceived
from Tarbiitt — deducting one half of the usual commission — by a check
jjayable to Marsh i^ Co. into the hands of Martin k Co. to the account of
]\Iur.sh «k Co. at the precise time of such payment ; therefore there can be
no doubt Ijut that it was as much money luider their control as any otlicr
money paid in at Martin & Co.'s by any customer under ordinary circum-
stances. The house of Marsh & Co. might have drawn the whole of the bal-
1 Style, 340. '^ 12 East, 409. 3 C B. & ('. 551.
CHAP. VI.] MAKSII V. KEATING. G03
ance into their own hands ; if the same money hud been paid into Martin &
Co.'s, as the produce of the plaintiff's stock, sold under a geimino power of
attorney, it would unquestionably have been received by all the defendants
to the use of the plaintiff. It would not the less be money received by tlio
partners of the firm because, as found in the special verdict, it was entered
in the account as " Cash per Fauntleroy," or because it never appeared in
the house-book or any other books of Marsh & Co., but only in the pass-book
of that firm with Martin & Co., or because it never came into the yearly bal-
ancing of the house of Marsh & Co., or in any other manner into their
books. Those several circumstances prove no more than that Fauntleroy,
one of the partners, deceived the others by preventing the money from be-
ing ultimately brought to the account of the house ; but as between them
and the person by the sale of whose stock it was produced, we think the
fraud of their partner Fauntleroy, in the subsequent appropriation of the
money, affords no answer after it has once been in their power ; and that it
was so appears to be distinctly stated in the special verdict.
But it is urged that the present defendants had no knowledge that
the money was the property of the plaintiff, being perfectly ignorant, as the
special verdict finds, of the commission of the forgery, of the sale of the
stock, or the payment of the produce of such sale into their account at
Martin & Co.'s.
It must be admitted that they were so far imposed upon by the acts of
their partner, as to be ignorant that the sum above mentioned was the
produce of the jjlaintiff's stock ; but it is equally clear that the defendants
might have discovered the payment of the money and the source from which
it was derived, if they had used the ordinary diligence of men of business.
If they had not the actual knowledge, they had all the means of knowl-
edge ; and there is no principle of law upon which they can succeed in pro-
tecting themselves from responsibility in a case wherein, if actual knowl-
edge were necessary, they might have acquired it by using the ordinary
diligence which their calling requires.
As to the last ground of objection to the plaintiff's right to recover, it is
argued that by the agreement into which she entered with the bank, and
under which she has received, from the time of the sale, the dividends
which would have become due, she has disaffirmed the sale with a full
knowledge of all the facts, and therefore cannot now be allowed to set it
up as a valid sale.
But it appears to us that it is sufficient to look at the terms of sucli
agreement, to give an answer to the objection. That agreement expressly
reserves to Mrs. Keating the right to have recourse either to the bank or the
present defendants for her remedy, as she may be advised. It therefore
leaves the question whether the sale be affirmed or not completely in un-
certainty, until she make her election to have recourse to the one or the
other; and the agreement is one which causes no disadvantage to the
604 SELWAY V. FOGG. [CHAP. VI.
rights of the defendants, who, if liable, can only be liable once to the pay-
ment of the money actually received, whether the bank have in the mean
time advanced the dividends or not.
Upon the whole, therefore, we beg to state our opinion to be that upon
the question which has been proposed to us by your lordships, Ann
Keating has the right to recover the produce of her stock against the sur-
viving partners of the firm, who received it under the circumstances stated
in the special verdict in an action for money had and received to her use.
The Lord Chief Justice of the Common Pleas desires to have it expressly
understood that he fully concurs in the opinion now delivered.
The judges having given judgment in another case, the following obser-
vations were made by the Lord Chancellor.
Lord Chancellor. I was not present when the learned judges gave
their opinion in the case of Marsh v. Keating, which was a case of consid-
erable importance, and on that account was very fit to be brought here,
and it was in consequence of that I recommended it should come here
when it was before me in the court of chancery. The learned judges have
all agreed in opinion, in support of the judgment below ; I therefore move
your lordships that the judgment be affirmed, but at the same time with-
out costs, in consideration of the importance of the question, and the opin-
ion of the court below having been in favor of taking the sense of your
lordships' house. Judgment affirmed, wit/iout costs.
SELWAY V. FOGG.
In the Exchequer, Easter Term, 1839.
[Reported in 5 Mecson tt Welsby, 83.]
^^^, <g^ ^^ Indeditatcs assumpsit for work and labor. Pleas, non-assumpsit^ pay-
^^. ^^^^y j;;^£!]t,_and a sct-ofl;
' // / At the trial before Lord Abinger, C. B., at the Middlesex sittings after
'^^*"^~j *~"'*^ •2-«^v'. last Michaelmas term, evidence was given to prove that the work was done,
^■^ ^j-t^jc<^ c^ which consisted in carting away rubbish, and that the value of it amounted
Ji^ty<^ l^ (Zuf/'Z.^^ about 20/. The defendant then gave evidence of a contract to do tlie
J )£ y n> '^'ork for 1.5Z., which sum he had paid. The plaintiff insisted that that con-
*" '"'■ '^j tract was obtained by a fraudulent misrepresentation as to the depth of the
"-' rubbish carted away, and that, being founded in fraud, it was no answer to
-^iahe action. The Lord Chief Baron, however, was of opinion that the question
^M-irr-oi fraud was not open to the plaintiff in the present action, although it
rni^lit Vju the subject of complaint in another action* especially as it had
been shown that the plaintifl' had knowledge of the circumstance indicative
of fraud before the work was finished. He however left the facts to the
CUAP. VI.] SELWAY V. FOGG. G05
consideration of the jury, and they fonnd that there was fraud in the con-
tract, and returned a verdict in favor of the phiintitl" for 5/. ; but tlie learned
judge gave the defendant leave to move to enter a nonsuit or a verdict for
the defendant, llnmfrey having in last term obtained a rule accord-
ingly, —
Erie now showed cause.
Hunifrey and Stewart, contra.
Lord Abingeh, C. B. I am of opinion that this rule ought to be made
absolute. At the trial, I was impressed with the opinion, and still remain
so, that the plaintiff' is not entitled to recover, and I think so on two
grounds : First, because no one can be liable upon a contract which he
never made nor intended to make ; the very idea of a contract being, that
it is an agreement entered into by two willing parties acting with their eyes
open ; a party cannot be bound by an implied contract, when he has made
a specific contract, which is avoided by fraud. A person is not at liberty
fn_s!ry, '' T bnvp mnr|p t"^'0 Contracts, and if one of them is avoided by its
fraud, then I will set up the other ; " but if he repudiate that contract on
the ground of fraud, as he may do, he has a remedy by an action for
deceit. Secondly, jt jwas^clear_upon the evidence that the plaintiff had full
knowledge of all that constituted the fraud in this case, either before or
during the work, and as sooiFas he knew it he should ha,ve discontmued the
work and repudiated the contract, or he must be bound by its terms.
Tarke^^ BT 1 also thinF that in this case a nonsuit ought to be
entered. The plaintiff sues for work and labor, and on the trial it turns
out that there is a contract to do it for a specific sum. Assuming that the
jury have properly found that this contract was fraudulent, in what situa-
tion is the plaintiff put % He may repudiate it, and be iu the same sit-
uation as if it had no existence at all ; but if he does not choose to do so,
he cannot then set up another contract. This is established by two cases,
— one, that of Ferguson v. Carrington, already cited, and the other that of
Read v. Hutchinson.^ If the plaintiff chooses to treat the defendant as a
party who has contracted with him, he must be bound by the only contract
made between them. The case is distinguishable from those where a third
person intervenes, and where, looking at their real situation, that third per-
son is also the agent of the party charged ; at all events, no second contract
is there set up, as here, which second contract is inconsistent and cannot bo
supported. I also^thmk that, upon discovering the fraud (unless he meant
to proceed according to the terms of the contract), the plaintiffjhould im-
mediately have^clared offTauH solight compensation for the by -gone time
m an action for deceit ; not doing this, but continuing the work as he has
done, he is bound by^^e express terms of t.bp pontmct, and if he fail to!
recover on that, he cannot recover at all.
AL^msoN, B., and^CAULE, B.Tconcurred. Rule absolute.
1 3 Camp. 351.
606
RUSSELL V. BELL.
[CUAP. VI.
n
RUSSELL &, Others, Assignees of JOSEPH NICHOLL, a Bankrupt,
V. BELL AND Another.
In the Exchequer, January 20, 1842.
[Reported in 10 Meeson ^' Welsbi/, 340.]
Assumpsit. The fifth count was for goods sold and delivered by the
plaintiffs, as assiffliees, to the defendantsT
The defendants pleaded, first^ except as to the sum of £320, parcel of
the sums of money in the declaration mentioned, and except as to the furtlier
sura of j£140, parcel of the sums in the first, second, third, and fourth
counts mentioned, no7i assumjysit.
At the trial before Lord Denman, C. J., at the last summer assizes for
the county of York, it appeared tliat the action was brought to recover the
sum of £140 for yarn sold and delivered to the defendants, and £80 for
money which it was alleged came to the defendants' hands after the bank-
ruptcy ; ^ as to the latter sum, however, no evidence was adduced. It was
objected, at the conclusion of the opening speech of the plaintill's counsel,
that they were not entitled to go into evidence as to the £140, inasmuch
as judgment had been already given against them as to that sum on the
demuiTer ; that if it were otherwise, the plaintiffs would be proceeding
twice to recover the same sum; that if the judgment had been the other
way, and the plaintiffs were to obtain a verdict now for that sum, they
would recover the same sum twice over. To this it was answered, that the
second plea, on which judgment had been given for the defendants, was
confined to the first four counts of the declaration. The learned judge said
he should receive the evidence, giving the defendants leave to move to enter
a nonsuit.
It was proved by a commission agent of the name Of Froggatt, that on
the loth of October, 1839, he had eighty-five bundles of yarn of the bank-
rupt's in his possession, the value of which he said was about £114; that
the bankrupt urged him to buy it, which he refused to do, but advised the
bankrupt to sell it, which he said he would try to do. He afterwards came
and said he had sold it, and sent a porter for it. Another witness proved
that the defendant. Bell, had admitted to him that the bankrupt, NichoU,
had pressed him to receive some goods which the bankrupt and a porter
brought to him, about the value of £100, and that tliey, the defendants, had
received them. It was objected that there was no evidence of a sale of
the goods, or of money had and received by the defendants to the use of
the assignees ; and the learned judge being of that opinion, was about to
1 Only so much of the case is given as relates to this count. — Ed.
2 The evidence relied upon to establish the Lankrupt^'y lias been omitted. — Ed.
CHAP. VI.] EUSSELL V. BELL. 007
nonsuit the plaintiffs, when the defendant Bell's examination was put in.
On being tislvcd when the yarn was delivered, he stated that the goods were
sent by the bauluiipt on account of an acconunoihition Ijili tiie defendants
were about to give him; that the amount was 114Z. 15s., and that the goods
were received by them, he believed, on the 17th of September, 1839; that
he could not swear to the precise day, but he had no doubt of it ; that the
invoice which accompanied them bore that date; that they received no yarns
from Froggatt's warehouse but those on the 17th of September. The
invoice was as follows :
Messrs. Harrison & Bell. Sept. 17, 1839.
Bought of Joseph Niciioll.
170 gr. 40 weft at 13s. Gd . , . £114 15 0.
It was still objected that there was no evidence of any sale of the goods by
the assignees to the defendants, or of money had and received by the
defendants to the use of the assignees. The learned judge, however,
thought the plaintiffs entitled to recover, and ttuTjnryj iin<inr hia flimftimi, _
^unda verdict for £114 on the fifth count of the declaration, with leave
tojthe defendants to move to enter a. nm^snit.
Wortley having, in Michaelmas term last, obtained a rule to enter a
nonsuit accordingly,
Cressivell and W. H. Watson now showed cause.
Worthy and Cromjyton, in support of the rule.
Lord Abinger, C. B. Then Mr. Crompton says, that if you treat this as
a sale, you must treat it as a sale with all the circumstances belonging to
it. That proposition is true, with this qualification, — if the sale is made
by an agent, and properlv^conducted for the supposed vendor, mul thn
person buying is an honest buyer, the vendor must stand tn_the sale, and
Ts bound by the contract; but if a stranger takes my goods, and^d'^bvnrs
them to another man, no doubt a contract may be implied, and I may bring
atTaction either oT trover for thernTor of assumpsit. Tliis is aTdeclaration
framed on a contract implied by law. Where a man gets hold of goods '
without any actual contract, the law allows the owner to bring assumpsit ; ^
that is the solution of it, and gets rid of the whole difficulty. Here the
bankrupt took these goods, and delivered them to the defendants ; on that
an implied assumpsit arises that they are to pay the owners the value of the
goods. I think that is an answer to Mr. CromjJtonh argument ; and a whole
class of cases have decided this point, that you may convert a tort into an
action of assumpsit, by bringing an action for the value of the goods so
sold, waiving the tort. Here the bankrupt is selling goods under fiilso
colors, in order to cover transactions he knew he could not otherwise cover;
aiiSTieTias^no righttoset up his own fraudulent contract. But the action
\. \
1 T. W. & W. R. R. Co. V. Chew, 67 111. 378 ; Abbott v. Blossom, &G Bnib. S.'iS,
accord. —Y.D. V^ J d^i^/ <3 & c J^'^t^*^ tAt-/-"-^- -^ ^-^ , '' ^ ^z-^iX '' ' ■^•
' -S-^ ^i-,-.:-^ .'-^^c '/-^ 7>T-^ iS—if /-C/t^^^ .:_ C. y^ ^v o
Ifyf- Ct^
i
\,
G08 TEW V. JONES. [CIIAP. VI.
being brought for goods sold and delivered by the assignees, aud not by the
bauki-upt, the assignees have a right to waive the tort, and bring an action
of assumpsit for goods sold and delivered.
Alder-sox, B. Then, if that be so, another question is, lias there been a
sale subsequent to these acts of bankruptcy to the deleudauts 1 I am
supposing there are acts of bankruptcy proved prior to the 15th of October.
There is proof that Bell comes to the bankrupt and persuades him to sell
the yarn to him ; there is the examination of Bell, in which he states that
j he has received the goods ; and there is the invoice, in which it is stated
that Messrs. Hamson aud Bell (that is, the defendants) bought of John
Nicholl (that is, the bankrupt) yarn to the amount of 114/. 15s. As against
the defendants, this is sufficient evidence that they received those goods
I under a contract of sale for 114/. 15s. The defendant, when examined
I before the commissioners, tells a story about the goods ; are we to take
I that story as it is, or are we not rather to take so much only as may rea-
i sonably be taken against the defendant, rejecting altogether the rest, and
; confine him to that ou which he incurs responsibility 1 He must be answera-
ble for that_which makes against himself, where he is the offending party.
, If that be so, as it is a contract of sale^_the defendant^ arp bnnnrl tn pay
to these plaintiffs, who are the true proprietors of the goods, the sum they
undertook_to pay, namely, 114/. 15g., which is the amount nf the yprrlipf
Gurnet, B., coucurredT Bale discharged.
TEW V. JONES.
In the Exchequer, May 22, 1844.
[Reported in 13 Meeson ^ Welsbi/, 12.]
Debt for use and occupation of a messuage, etc. Plea, nunquam indebitatus.
At the trial, before the under-sheriff of Cheshire, the plaintiff put in deeds
of lease aud release, dated in the year 1841, whereby the defendant and
another person conveyed to the plaintiff an undivided moiety of five houses,
of wliich they were seised as devisees in trust under a will. The defend-
ant had occupied for a period of twenty-five years one of these houses, in
respect of which this action was brought ; but no evidence was given of
any express contract of tenancy between him and the plaintiff for his oc-
cupation subsequent to the conveyance. At the close of the plaintiff's case,
the defendant's counsel applied for a nonsuit, on the ground that there was
no evidence of any tenancy, or of an occupation by the permission or suffer-
ance of the plaintiff. The under-sheriff refused to nonsuit, and left the
case to the jury, who found a verdict for the plaintiff.
Willes had obtained, in Easter term, a rule nisi to set aside the verdict
and enter a nonsuit, first, on the objection taken at the trial, or, secondly,
CHAP. VI.] VAUGHAN V. MATTHEWS. GOO
on the ground that this action could not be maintained, the pluintilT and
defendant being tenants in common of the premises.
Pashley showed cause.
Willes, contra.
Pollock, C. B. There must be some evidence of a holding by the per-
mission of the plaintiff. Here the defendant, having conveyed a moiety of
five houses to the plaintill" remains in possession of one. There is no
evidence of a tenancy in that.
Aldersox, B., and Gurney, B., concurred.
EoLFE, B. If a vendor remains in possession by agreement, the terms of
that agreement will speak for themselves ; if not he is a wrong-doer, and
may be turned out by ejectment, and is liable in trespass for mesne profits.
The supposed analogy of the case of mortgagor and mortgagee does not
exist ; the mortgagor is the tenant by sufferance of the mortgagee, in con-
sequence of the peculiar relation existing between them, and which does
not exist between a vendor and vendee.
Rtde absolute for a iionsuit.
VAUGHAN, Executor of JANE VAUGHAN v. MATTHEWS.
In the Queen's Bench, January 25, 1849.
[Reported in 13 Queen's Bench Reports, 187.]
Assumpsit for money had and received. Plea, non assumpsit.
On the trial, before E. V. Williams, J., at the Chester spring assizes,
1848, it appeared that the defendant had, as representative of Anno
Vaughan, the survivor of two sisters, brought an action upon and received
payment of a note, payable, as he contended, to^The two JMisFVanghrnis.
The plaintiff, whl)~^was^representative of the elder sister, Jane Vanglian,
claimed the money, contending that the note was made payable to Miss ^
Vaughan, and consequently to the plaintiff as her representative; and that ' '
it had been fraud uleiTEly^atfered by adding the letter "s," so as to make it
purport to be payable to Miss Vaughans, and consequently to the surviving
sister^ There was conflicting testimt)ny as to this. The learned judge gave
the defendant leave to move to enter a nonsuit, and left it to the jury to
say whether the money lent, which was the consideration of the note, was
the joint loan of the two sisters ; and whether the note had been altered.
The jury a^iswered the first question in the negative ; but, being unable to /^,^ el<^-y ^^ X
agree on the second, they were ultimately discharged. Chilton, in the ^^
ensuing term, oT)tained a^rule nisi for a nonsuit.
Welshy and Townsend now showed cause ; ^ and Chilton and Evans sup-
ported the rule.
1 Before Lord Denman, C. J., Patteson, Coleridge, and "VViohtman, JJ.
VOL. II. — 39
^
610 VAUGHAN V. MATTHEWS. [CHAP. VI.
Lord Dexman, C. J. The question in this case was whether an action
for money had and received was maintainable.
The plaintiff was administrator of Jane Vaugban, who died in March,
18-i3. ^Iie^efeudant was executor of Anne Vau"ghan (sister of Jane),jvho^
Cp.^ dTedTnMarch, IsIiTand who was younger than Jane. Some time in 1839
Jane Vaughan lent 150/. to Evan Evans, and received from him as a security
his promissory note for 150/., payable, as it was said by the plaintiff, to
Miss Vaughan. Aftcrthe death of Anne, the defendant as her executor
brought an action upon the note against Evan Evans, alleging it to be pay-
able to the Miss Vaughans, and not to !Miss Vaughan only ; and, as Anne
survived lier_sister^she would have the right to enforce payment. Evan
Evans settled the action and paid theamount of the note to the defendant,
Avho clamied as executor of the surviving paj-ee. For the plaintiff it was
alleged that the letter " s " had been fraudulently added to the word
" Vaughan," and that the defendant had wrongfully received payment from
Evans of the promissoiy note, which really belonged to the plaintiff as
administrator of Jane Vaughan, the payee who furnished the consideration.
For the defendant it was contended that, admitting the whole of the plain-
tiff's case as stated by him, an action for money had and received could not
be maintained, and that the plaintiff must be nonsuited : and we are of
opinion that the objection is well founded, and that the plaintiff cannot
succeed in this form of action.
The defendant received the money in his own right, in payment of a
note which, if genuine, would have been his property as executor of Aune
Vaughan : the payment was not in respect of a note to which, if genuine,
the plaintiff would be entitled ; nor can the defendant be considered as
acting in any respect as his ageTit. _ The facts stated do not raise the legal
inference that the money paid by Evans was had and received by the de-
fendant to the use of the plaintiff; Evans may still be liable to the plaintiff
for the money lent to him by Jane Vaughan, if not upon the note ; and
f the defendant may be liable to refund to Kx^ansthe money paid by the
^ "^ \ latter under mistake or misrepresentation ; but_tbereJsno contract express
oiTimjlied between the_plaintiff and the defendant. In the case of Marsh
' V. Keating^ the defendants had in their hands the proceeds of the sale of
h/i*4 *-> A^-'^jtbe plaintiff's stock; but in the present case the money in the defendant's
, ' ■ ^ y , vhands is not proceeds of a note to which the plaintiff would have been
'^ . Y entitled, but of another, which, if genuine, would have belonged to the
('--'-"* ' ''^*" ^^ defendant; and the cases are therefore distinguishable.
i^^Ij, ^jLCZ^'-^ If the defendant had obtained payment of the genuine note by means
jl^ AuJ^^ ^ f^^s6 or forged representationot^autliority from the plauititf, thTcase
■ , ,, wUmd Tiave resembled that of Marsh v. Keating,^ and the plaintiff might
L
Qiiive iidoptcd^hc"l[gcncy and treated the^nioncy in tho~defendant's hands^
at
1 juTltad and "received to his use, supposing the defendant not to have been
1 1 New Cas. 198.
CHAP. VI.] NEATE V. HARDING. Gil
actually shown to have himself^ommitted a feloay. The plaiutift' in tin , , • /
case can only recover by adopting and assuming that which the defondaut "^
has done, namely, obtaining payment of a note payable to both the sisters,
which would be inconsistent with his claim, and in effect destructive of it.
We are therefore of opinion that a nonsuit should be entered.
Jiule absolute.
NEATE V. HARDING and BOWNS.
In the Exchequer, April 24, 1851. /L ^i„-^-^C
[Reported in 6 Exchequer Reports, 349.]
Assumpsit for money had and received. Plea, non assumpsit.
At the trial, before Martin, B., at the Wiltshire spring assizes, the
following facts appeared : The plaintiff's mother had for some time received
parochial relief, but thei'e being strong ground for suspecting that her
poverty was feigned, and that she was in reality possessed of a considerable
sum of money, the defendant Harding, who was assistant overseer of the
Came Union, and the defendant Bowns, one of the Wiltshire county con-
stabulary, went together to her house for the purpose of searching for the
money. Bowns remained outside, while Harding entered the house, and
having found in a cupboard 1G3^., he took it away with him, TIxe money
was afterwards taken to a bank by both the defendants, and paid in to their
joint account. It was proved that the money belonged to the plaintiff.
On the part of the defendants, it was objected, that under these circum-
stances the action for money had and I'eceived would not lie ; and also that
there was no evidence of a joint taking by Bowns. The learned judge over-
ruled the objections, and directed a verdict for the plaintiff, reserving leave
for the defendants to move to enter a nonsuit.
Kinglake, Serjt., now moved accordingly.
Pollock, C. B. We all agree that there ought to be no rule. The
owner of property wrongfully taken has a right to follow it, and, subject to
a change by sale in market overt, treat it as his own, and adopt any act
done to it. That doctrine was carried to a great extent in Taylor v.
Plumer,^ and is fully explained by Lord Ellenborough in delivering the
judgment of the court. In this case the money taken belonged to the
plaintiff; and it did not cease to be liis money because it was in the de-
fendants' hands ; he was therefore at liberty to waive the wrongful act, and
treat it as money received by the defendants for his use. The mere pres-
ence of the defendant Bowns might not have sufi&ced to render him liable ;
but there is evidence that he concurred in placing the money in the bank
in the joint names.
1 3 M. & S. 562.
612 NEATE V. IIAKDING. [CHAP. VI.
Parke, B. I am also of opiuiou that there ought to be no rule. The
plaintiff was bound to prove a joint act by both defendants, and under such
circumstances as entitled him to maintain an action for money had and
received. All difficulty on the first part of the case was obviated by show-
ing that the money was paid into the bank on the joint account. It then
became the same as if one individual alone had placed it there ; and in my
opinion it was competent for the plaintiff either to bring trover or trespass
for taking the particular coin, or to waive the tort and sue for money had
and received. I arrive at that conclusion by the same process of reasoning
as in the cases cited; because it is admitted that, if a "person wrongfully
takes the goods of another and converts them into money, the latter has
a right to recover the proceeds in an action for money had and received.
That doctrine is explained in Lamine v. Dorrell, by Powell, J., who says,
" that the plaintiff may dispense with the wrong, and suppose the sale
made by his consent." We need not go so far in the present case ; all that
is necessaiy is, that the plaintiff should have a right to waive the wrongful
act ; then the defendants, having got the money of the plaintiff in their
hands, must pay it back to him again.
PL/VTT, B. The receipt of the money by the bankers on the joint account
operated as a receipt from both defendants. So that the defendants had
the money of the plaintiff in their hands, and consequently he was entitled
to treat it as money received for his use.
Martin, B. • If the case had stood simply upon the taking of the money
out of the house, I should have had some doubt whether the action for
money had and received would lie, for that is an action on a contract ; and
torts and contracts are of a very different nature. I own, to me the more
sensible rule is, that if there be a contract, the party should bring an action
for money had and received ; and if there be a trespass, he should bring
trespass or trover. But when it was proved, as in this case, that after the
money was taken both defendants went and paid it into the bank on their
joint account, that makes them both responsible as upon a contract, for
they enter into a contract with the bank in respect of the money ; and
therefore I think that the action for money had and received is maintain-
able. I should always be disposed to act upon the principle laid down in
the case of Turner v. Cameron's Coalbrook Steam Coal Company, which
treats the case of a tort, as in truth it is, a tort, and the case of a contract,
as a contract.
Bule refused.
CHAP. VI.] BUCKLAND V. JOHNSON. G13
BUCKLAND v. JOHNSON.
In the Common Pleas, June 7, 1854.
{Reported in 15 Common Bench Reports, 145.]
The plaintiff declared for money had and received, goods sold and de-
livered, and money found due upon an account stated, and also " fur that
the defendant converted to his own use, and wrongfully deprived tiio
plaintiff of the nse and possession of, the plaintiff's goods."
The defendant pleaded, —
Fourthly,^ as to so much of the declaration as related to money payable
for money received by the defendant to the plaintiff's use, and to the said
household furniture, glass, linen, china, books, and plate, — that the said
[money was money received for, and as, and being the proceeds of the sale
of the goods in the last count and hereinafter mentioned '^J, and that the
grievances in the last count mentioned, so far as they related to the said
household furniture, glass, linen, china, books, and plate were committed by
the defendant and the said Thomas Barber Johnson jointly, and not by the
defendant alone, which said Thomas Barber Johnson, at and from the time \
of the accruing of the causes of action to wliich this plea was pleaded, until
and at the time of the recovery of the judgment thereinafter mentioned,
"was with the defendant jointly liable to the plaintiff for the said causes
of action : That, after the accruing of the causes of action to which that
plea was pleaded, and before that action, the now plaintiff commenced, in
the court of our lady the Queen before her justices at Westminster, com-
monly called the Court of Common Pleas at Westminster, an action at law
against the said Thomas Barber Johnson, and by his declaration in that
action the now plaintiff declared, and said, amongst other things, that he
sued the said Thomas Barber Johnson for money payable by the said
Thomas Barber Johnson to the plaintiff for money received by the said
Thomas Barber Johnson to the plaintiff's use ; and for that the said Thomas
Barber Johnson converted to his own use, and wrongfully deprived the
plaintiff of the use and possession of the plaintiff's goods, that is to say,
household furniture, household utensils, books, and pictures; and the
plaintiff by his said declaration in that action claimed 500*^. : That such
proceedings were thereupon had in the said court in that action, that aftcr-
1 Only so imicli of tlie case is given as relatos to this plea. — Ed.
2 The words withiTi brackets were inserted, by way of amendment, in substitution of
tlie foUowing : — " deljt for money received became due from, and was contracted by,
the defendant jointly witli Thomas Barber Johnson, and not by the defendant alone, nor
by the two jointly and severally, but only jointly."
614
BUCKLAND I'. JOHNSON.
[CIIAP. VI.
/,/lu^^^
V
^a. <2^ A
/c^e^^
K^'
wards, and before this action, the plaintiff recovered against the said
Thomas Barber Johnson, for and in respect of, amongst other things, his
said claim for money payable to him by the said Thomas Barber Johnson,
and for the said convei'sion to the Thomas Barber Johnson's own nse, and
the said wrongful deprivation of the plaintiff of the use and possession of
the said household furniture, household utensils, and books by the said
Thomas Barber Johnson, the sum of 100/., with 136/. for costs of suit:
That the said household furniture, household utensils, and books in the
declaration in the said other action mentioned as aforesaid, were and are
tbe same Identical goods as the said goods which in the declaration in this.
action were described as household furniture,_glass, linen, china, books, and
plateJVnd that the conversion and deprivation thereof, whereof the plaiu-
tiff in the said other action complained as aforesaid, was and is the same
as the conversion and deprivation thereof, whereof in this action lie liad '\\\
hiTdeclaration complained, and to which this plea was pleaded ; and that
the said claim in the said other action in respect of money payable for
money received, included the plaintiff's said claim in this action for money
payable for money received, and to which the plea was pleaded : And that
the causes of action whereof the plaintiff in his declaration in the other
action so complained as aforesaid, and in respect of which, amongst other
things, he so as aforesaid recovered the said judgment, included all the
causes of action to which this plea was pleaded, which judgment remained
on record in the said court.
The plaintiff replied taking issue upon the first, second, and third pleas,
and to the fourth and fifth replied nul tiel record.
The cause was tried before Williams, J., at the first sitting at West-
minster in this term. The facts which appeared in evidence were as
follows : —
The plaintiff had advanced money to the amount of 249/. to one Midge-
ley, and on the 29th of May, 1852, to secure those advances, Midgeley
executed to him a bill of sale of his household furniture. Midgeley after-
wards made a second bill of sale of the same goods to one Perkins, to whom
he was indebted to the amount of 148/. Perkins, having seized the goods
under his bill of sale, employed the defendant, who was an auctioneer, to
sell them.
It appeared that there were two Johnsons, William Johnson, the father,
and Thomas I5arber Johnson, the son ; but it did not distinctly appear
whether they carried on business in pai'tnersliip, or whether the son acted
as the agent or servant of his father.
The goods were sold by Thomas Barber Johnson : but the
wliile
lohuson, the now defendant, was in the auction-room
til
sale was going on, and he received the ])rocccd3, amounting to 150/.,_and,
notwithstanding a notice ^m the plaintiff not to part with the money,
jjaiTwith it Perkins's demand of 148/. The plaintiff, not then knoaJPg
CHAP. VI.] BUCKLAND V. JOHNSON. 615
that the now defendant had refieived the money, sued Thomas Barber
Johnson for money had and received, and for the conversion, and obtained
ajvci-dict andTudgment against him for 100^. and 13G/. costs: but the suit
produced no fruits, Thomas Barber Johnson having taken the__bjenefit of
t^ie insolvent debtor's act, and therefore this action was brought against
William Johnson, the father^
On the part of the plaintiff, it was objected that the facts proved did
not sustain the fourth plea, the money having been received by the now
defendant only, and not by the father and son jointly ; and that the plain-
tiff was at all events entitled to recover upon the count for money had and
received, notwithstanding there might have been a conversion by the two.
The learned judge inclining to think this argument well founded, the
defendant's counsel asked leave to abandon tlie plea, and plead de novo.
The learned judge having declined to allow this, he was then asked to per-
mit the plea to be amended, by striking out the words " the said debt for
money received became due from, and was conti'acted by, the defendant
jointly with Thomas Barber Johnson, and not by the defendant alone, nor
by the two jointly and severally, but only jointly," and substituting for
them the following, — " the said money was money received for and as
being the proceeds of the sale of the goods in the last count and hereinafter
mentioned."
It was then insisted by the defendant's counsel, that the recovery in
the action against Thomas Barber Johnson was a bar to an action against
the now defendant either for the conversion of the same goods, or for the
recovery of the proceeds thereof.
The learned judge left the case to the jury, who found that the plea as
amended was proved ; and accordingly his lordship directed a verdict to be
entered for the defendant, reserving leave to the plaintiff to enter a verdict
for 148/. 15s., if the court should be of opinion that the amendment was
improperly allowed, or the plea as amended afforded no defence ; and the
court to say, if they thought the amendment ought to have been made,
what terms, if any, should have been imposed.
Byles, Serjt., on a former day in this term, moved for a rule nisi
accordingly.
A rule nisi having been granted,
Lush now showed cause.
Haivkins and Finlason, in support of the rule.
Jervis, C. J. I am of opinion that this rule should be discharged. I
think the plea was propeily amended ; and I think it was substantially
proved, as amended. I also think that the objections to the amondnient
which have been now urged by Mr. Hawkins, should have been urged at
the time, when, if there were anything in them, they might have been
removed by a farther amendment. There can be no doubt that the plea
as amended was proved in substance_: and I think it is equally clear that
^X
^/
616 BUCKLAND V. JOHNSON. [CIIAP. VI.
my Brother "Williams was quite right in allowing the amendment. The
question which was substantially in issue between the parties, and which
both went^down to try. wasTliot whether the proceeds of the sale of the
plaintiffs goods bad been received by the defendant and his son jniiitj\-j
but whether there had been a substantial recovery by the plaintiff in the
former action;^ so as to bar hisj;ight to recover in this. As, therefore, the
amendment raised substantially the real point in controversy between
the parties, I do not think it ought to have been allowed only upon the terms
of the defendant's paying the costs of the day. The sole remaining ques-
tion, then, is, whether the plea as amended affords an answer to the action.
1 think it does. The authorities show, and indeed it is not denied, that,
if Thomas Barber Johnson, the son, had received the money as well as con-
verted the goods, and Buckland had sued him in trover, and obtained a
judgment against him, even though it had produced no fruits, that judg-
ment would have been a bar to another action against him for money had
and received. Upon the same principle, if two jointly convert goods, and
one of them receivua'tTie proceeds, you cannot, after a recovery against one
in trover, have an action against the other for the same conversion,^ or an
action for money had and received to recover the value^oftlio goods^for
which a judgment has already passed in the former action. Mr. Finlason
says, that, as the plaintiff recovered only 100/. in the action against
Thomas Barber Johnson, and the present defendant received 150/. as the
value of the goods, the plea should at all events only be considered as a
bar to the extent of 100/. : and for this he relies on Hitchin v. Campbell. ^
That case, however, does not sustain the position for which it was cited.
It was an action for money had and received by the defendant for the use
of the plaintiff; to which the defendant pleaded in bar, that the plaintiff
had brought an action of trover against him and one A. B. to recover
damages against him for divers goods and chattels of the plaintiff supposed
to be converted by them to their own use, to which they pleaded the
general issue, and a verdict was fomid for them (the defendants), and judg-
ment was entered thereupon, which the present defendant now pleaded in
bar to this action, and averred that the goods and chattels for which the
action in trover was brought were the very same identical goods for the
produce whereof (by sale) the present action was brought l)y the plaintili'
against the defendant for money had and received for the plaintill's use :
and, upon demurrer, the court held that a judgment for the defendant in
trover is no bar to an action for money had and received by the defendant
for the use of the plaintiff. As the verdict for the defendants in the
action of trover miglit have gone upon the ground that the sale of the
goods took place with the jJaintifTs authority, which, though it would
1 liriiismcad v. Ilaiiison, L. II. 7 C. 1'. 547, axcord. Lovcjoy v. Murray, 3 Wall. 1 ;
ElHott v. Ilayilcii, 10} .Mass. 180, conlra.—Ev.
2 3 Wils. '240 ; 2 151. W. 779.
CHAP. VI.] BUCKLAND V. JOHNSON. 617
negative the alleged conversion, would be no answer whatever to an action
for money had and received, that case is obviously no authority on the
present occasion. The whole fallacy of the plaintiff's argument arises from -^ •
his losing sight of the fact, that, by the judgment in the action of trover ' ^-^^-^^ *-"
the property in the goods was changed, by relation, from the time of the u^'^ ^^*^ ■ X/-
conversion ; and that, consequently, the goods from that moment became J^^ ^^ h --v-» <
the goods of Thomas Barber Johnson;^ and that, when the now defendantY2:2ia.,._^pC^ »
received the proceeds of the sale, he received his son's money, the property , y j. rtZ
in the goods being then in him. Some of the authorities do, indeed, seem ^~~ f
to lay it down that it is not the recovery only, but the recovery coupled / *^^^ ■^
with the payment of the damages, that changes the property. Thus, xwj^'*'^'*^ "^ ^
Cooper V. Shepherd,'^ Tindal, C. J., delivering the judgment of the court, ♦v^--^'^^''^ 7 '^
says : " The plaintiff in trover, where no special damage is alleged, is not
entitled to damages beyond the value of the chattel he has lost ; and, after
he has once received the full value, he is not entitled to further compen-
sation in respect of the same loss : and, according to the doctrine of the
cases which were cited in the argument, by a former recovery in trover,
and payment of the damages, the plaintiff's right of property is barred,
and the property vests in the defendant in that action : see Adams v.
Broughton,^ and Jenkins, 4th Cent., Case 88, where it is laid down, ' A., in
trespass against B. for taking a horse, recovers damages : by this recovery,
and execution done thereon, the property in the horse is vested in B.
Solutio pretii emptionis loco hahetur.' " But, in the fuller report of Adams
V. Broughton in Andrews, 18, where an action of trover had been brought
by Adams against one Mason, wherein he obtained judgment by default,
and afterwards had final judgment, whereupon a writ of error was brought;
and another action of trover was afterwards brought by Adams for the
same goods for which the first action was brought against Broughton, the
court, upon a motion to hold the defendant in the second action to bail,
distinctly lay it down that " the property of the goods is entirely altered by
the judgment obtained against Mason, and the damages recovered in the
first action are the price thereof; so that he hath now the same property
therein as the original plaintiff had ; and this against all the world." By
" damages recovered," the court evidently did not mean "paid," for a writ
of error was then pending in the first action. And this is explained by the
principle laid down by my Brother Parke, in King v. Hoare,^ " If there be
a breach of contract, or wrong done, or any other cause of action by one
against another, and judgment be recovered in a court of record, the judg-
ment is a bar to the original cause of action, because it is thereby reduced
to a certainty, and the object of the suit attained, so far as it can be at that
stage ; and it would be useless and vexatious to subject the defendant to
another suit for the purpose of obtaining the same result. Ileuce the legal
1 Brinstnead v. Harrison, L. E. 6 C P. 584, contra. — Ed.
2 3 C. B. 272. 8 2 Stra. 1078. * 13 M. & W. 504.
G18
BUCKLAND V. JOHNSON.
[chap. VI.
H
■\
^^
%\.
o^
4
maxim, 'transit in rem jitdicatam,^ the cause of action is cnauged into matter
of record, which is of a higher nature, and the inferior remedy is merged in
the higher. This appears to be equally true where there is but one cause
of action, whether it be against a single person or many. The judgment of
a court of record changes the nature of that cause of action, and prevents
its being the subject of another suit, and the cause of action, being single,
cannot afterwards be divided into two. Thus, it has been held, that if two
commit a joint tort, the judgment against one is of itselt, without execution,
a sufficient bar to an action against the other for the same cause. Brown v.
Wootton.^ And though, in the report in Yelverton, expressions are used
which at first sight appear to make a distinction between actions for un-
liquidated damages and debts, yet, upon a comparison of all the reports, it
seems clear that the true ground of the decision was not the circumstance
of the damages being unliquidated. Chief Justice Popham, Cro. Jac. 74,
states the true ground : he says, " If one hath judgment to recover in tres-
pass against one, and damages are certain," (that is, converted into cer-
tainty by the judgment), "although he be not satisfied, yet he shall not
have a new action for this trespass. By the same reason, e contra, if one
hath cause of action against two, and obtain judgment against one, he shall
not have remedy against the other ; and the difierence betwixt this case
and the case of debt and obligation against two, is, because there every of
them is chargeable, and liable to the entire debt ; and, therefore, a recovery
against one is no bar against the other until satisfaction." And it is quite
clear that the chief justice was referring to the case of a joint and several
obligation, both from the argument of the counsel, as reported in Cro. Jac,
and the statement of the case in Yelverton. We do not think that the
case of a joint contract can, in this respect, be distinguished from a joint
tort. There is but one cause of action in each case. Tlie party injured
may sue all the joint tort-feasors or contractors, or he may sue onc^_suhj ect
to the right of pleading in abatement in the one case, and not in the other;
but, for the purpose of this decision, they stand on the same footing.
Whether the action is brought against one or two, it is for the same cause
of action.^ The rightj)f action is merged in the judgrncnt. It is the judg-
ment that disposes of the matter, and not the payment.
Maule, J. I also am of opinion that this rule should be discharged, and
that the case was a very proper one for amendment at the trial. The
amendment asked for and allowed did not alter the substance of the plea,
or in any degree vary that which was the real question in controversy
between the parties, viz., whether the plaintiff had recovered against one
of two joint tort-feasors, so as to make that recovery a bar to a subsequent
action against the other. That question was raised by the plea as it ori-
ginally stood ; and it was also raised by the plea as amended. I do not
» Yelv. 67; Cro. Jac. 73 ; F. Moore, 762.
' And see the judgment of Bayley, B., iu Lechniere v. Fletcher, 1 C. & M. 623.
CHAP. VI.] BUCKLAND V. JOHNSON. 019
think it was at all a case for the imposition of terms upon the defendant.
Every plea is to be taken subject to such amendments as the law as it now
stands permits the judge to make. Then the plea as amended seems to mo
to be a good plea ; and, being proved, afforded a good defence to the action.
It states, in substance, that the money sought to be recovered in this action
was the proceeds of certain goods of the plaintiff which the now defendant
and Thomas Barber Johnson had jointly converted, and that the plaintiff
had sued Thomas Barber Johnson for that conversion, and recovered a
verdict against him for 100/., the value of the goods so converted. That
seems to me to afford a substantial answer to the action. In an action of
trover, the plaintiff may not always recover the full value of the thing con-
verted ; and, if it had been shown here that the plaintiff had not recovered
the full value of the goods in question in the former action, I will not say
what the consequences might have been. But hero we must take it that
the plaintiff did recover the full value in the former action. Having his
election to suej^n trover for the value of the goods at the time of the sale,
or for the proceeds of the sale as money had and received, tfie plauitilf
eIected_Jhe^oiTOe£remedy^nd he hajlobtainedavefdrot and judgimint.
He has, therefore, got what the law considers equivalent to payment, viz.,
a Judgment for the full value of the goods. It appears upon the plea and
"lipoTritEe~evideace, thatlBe"sum'actualIyreceivedrby'~tirc-present defendant
as the proceeds of ^j~saIe~escegdBd -tfae-rmrgunt for which the plaintiff
recovere(Fjudgment in the former action. But, when the^ plaintiff made
his^ election to sue In trover for the value at the time of the sale, he was
boundnby the estimate of the jury. The circumstance"ot the present de-
fendant's having been a joint converter, or a stranger, makes, I think, no
difference. If he were a stranger, the plaintiff, having once recovered in
respect of the same goods, cannot recover again the same thing against
somebody else. There is an end of the transaction. Having once recov-
ered a judgment, his remedy was altogether gone : his claim was satisfied j
as against all the world. He was in fact in the position of a person whosej
goods had never been converted at all. For these reasons, I think the'
rule should be discharged.^
Rule discharged.
1 The opinions given by Cresswell and Crowdek, JJ., in favor of plaiutilF liave
been omitted. — Ed.
/^'
620 ANDREWS V. HAWLEY. [CUAP. VI.
iJyU^t^
ANDREWS V. HAWLEY.
In the Exchequer, May 2G, 1857.
[Reported in 26 Law Jmirnal Reports, 323.]
The declaration stated, that the plaintiff carried on business as a trader,
and that certain persons were indebted to him ; that the defendant induced
them by false and fraudulent representations to withhold from the plaintiff
the monies due to him, or to discontinue dealings with him ; and that the
defendant also, by fraudulently proceeding without the consent or authority
of the plaintiff, and against his will, but using his name, obtained from cer-
tain persons divers sums due from them to the plaintiff, whereby the plain-
tiff was delayed in recovering the same, etc.
Second count for money received.
Pleas. Not guilty, and never indebted.
At the trial before Cresswell, J., at the last summer assizes for Surrey,
it appeared that the defendant was an attorney who had, prior to Septem-
ber, 18.54, been emploj'ed by the plaintiff to collect debts for him. At that
time one Pugh was engaged as traveller for the plaintiff under some agree-
ment, by which he was to be remunerated out of the profits. In September,
1854, Pugh (who it appeared was an uncertificated bankrupt) .was dis-
charged by the plaintiff, and soon after the defendant sent to the plaintiff,
on Pugh's behalf, a written notice of " dissolution of partnership," and also
addressed to the customers of the plaintiff a circular, stating that he was
authorized by the firm of " Andrews k Pugh " to collect the debts of the
firm, and demanding payment of their account. By this means the defend-
ant received from one customer the sum of 100/. and from another 111.
There was evidence that the plaintiff had incurred an expense of 25/. in
counteracting these proceedings, by sending out circulars, etc.^
It appeared further, that Pugh was indebted to the defendant in a much
greater amount than the sums received, and that they were paid over to
Pugh. The plaintiff swore positively that he had never heard of any claim
on the part of Pugh to be partner until he received the defendant's letter ;
that he then called upon him and told him so, and distinctly stated that
Pugh was not a partner ; that the defendant himself admitted that until
then Pugh had described himself as a traveller, and not as partner, and
that he, the defendant, always believed him to be traveller until he had
been advised that he was a partner. P'or the defendant reliance was
placed on the fact that he had consulted counsel on the question, and
acted on counsel's advice ; but no written case laid before counsel was pro-
' Hut this w:i!j not .stutud in tlie declaration as special damage.
CHAP. VI.] ANDREWS V. IIAWLEY. G21
duced, aud it did not appear on what statement of facts counsel liiid :id-
vised, further than that it was on an oral statement of Pugh. Moreover,
the advice wliich the counsel gave was, that Pugh, as partner, was entitled
to recover the debts, aud the circular letter which counsel had suggested to
be sent to the customers stated that the partnership had been dissdlved,
and that the debts were not to bo paid to the plaintiif but to Pugh. And
in a suit between the plaintiff and Pugh in equity, an interim order h;id
been made restraining either party from receiving the debts.
The learned judge left it to the jury, whether the letters were written
bona fide in consequence of counsel's opinion, that Pugh might legally au-
thorize the defendant to use the plaintiff's name, or with the intention of
leaving the customers to suppose that the plaintiff had actually authorized
the defendant to write.
The jury found that the letters were not written bona fide, and the
learned judge directed a verdict for the plaintiif. His lordship had ex-
pressed an opinion that the former part of the special count was not proved,
nor any part of the special damage beyond the receipt of the money ; but
that at all events, either on the special count or the common count, the
jury might give the amount of the sums received. The jury found for the
plaintiff for 171/.
Shee, Serjt., had obtained a rule last term to set aside the verdict and for
a new trial, on the grounds that the judge misdirected the jury in telling
them that if the letters were fraudulently and not bona fide written they
must find for the plaintiff on the latter portion of the first count, or on the
second count, for llll. ; that the verdict was contrary to the evidence;
that no fraud on the part of the defendant was proved, and that the judge
should have so directed the jury ; that the sum of 17U. was not recoverable
on the common count, and that the judge should have so directed the jury ;
and also that the plaintiff could not recover on the ground that he had
recovered the money from other parties.^ The rule was also to arrest the
judgment on the special count.
U. James and Hawkins, for the plaintiff. There was no misdirection, and
the right question was left to the jury. Notwithstanding the relation of
attorney and client between Pugh and the defendant, and the fact that the
defendant took counsel's opinion, the question was whether the defendant
acted bo7ia fide.
[Brx^mwell, B. Undoubtedly the merely obtaining of counsel's opinion
will not protect an attorney if he has not acted bona fide. And everything
depends on the case laid before counsel, as to which there was here no evi-
dence ; and it does not appear that counsel would have given such advice
had he known all that the defendant knew.]
I It appeared on the affidavits that the i)laiiitilf had received a composition of 8n^
on the debt of lOOZ. The rule was granted also on the ground of surprise, but on that
ground it was not sustained.
622 ANDREWS V. HAWLEY. [CIIAP. VI.
[Martin, B. Nor did the defendant, in fact, follow counsel's advice,
which was that Pugh might recover the debts, not that the defendant
might represent that Pugh and the plaintiff" authorized him to apply for
them. That was a very different tiling, and it is clear the learned judge at
the trial thought so.]
There was ample evidence of vmUi fides on the part of the defendant, for
there was evidence that he knew the falsehood of Pugh's pretence that he
was a partner.
[Martin, B. There was no pretext for supposing a partnership.]
Then as to the amount of the verdict, the damages were unliquidated ;
the jury might have given more than \l\l.
[Bramwell, B. No doubt : but did not the learned judge in effect direct
the jury that if they found for the plaintiff", that was the proper measure or
amount of damages?]
He said they might find that amount ; not that they must.
[BRA>nvELL, B. But is any substantial damage recoverable under the
special count % The debts are still recoverable, and a great part has been
recovered by the plaintiff. There was no evidence that he was prevented
from recovering damages, except that the actual receipt of the money by
the defendant was negatived.]
The amount can be recovered, at all events, under the common count, on
the principle that the tort may be waived, the debts having been recovered
professedly on behalf of the plaintiff as well as Pugh.
[Bramwell, B. In this very action you are setting up the receipt as a
tort, and are claiming to recover at all events nominal damages on a count
of which that is the gist.]
The count for money received is separate, and on that count the defend-
ant's receipt of the money may be adopted by the plaintiff.
[Pollock, C. B. The receipt was found to have been fraudulent, and to
have been really on behalf of Pugh. It is therefore as if the money due to
the plaintiff" had been received by the defendant for Pugh. Now, does the
doctrine of adopting a tort apply where it was not an act professedly done
on the behalf of the party who proposes to adopt it 1]
The money was received professedly on the behalf of Andrews, the plain-
tiff", as well as Pugh, and the plaintiff can adopt the receipt as a receipt by
his agent.
Shee, Serjt., and Garth, for the defendant, in support of the rule. There
was no evidence of mala fides.
[Bramwell, B. There was abundant evidence of it. Assuming that the
defendant did everything on counsel's advice, the evidence shows that the
defendant knew more than it appears counsel did.]
[Marti.v, B. It also api)ears that the defendant did not confine himself
to acting simply in accordance with counsel's advice, for there was a great
difference between writing to the customers that Andrews and Pu<di author-
CHAP. VI.] ANDREWS V. IIAWLEY. 623
ized him to apply for the debts, and merely writing that they must pay
Pugh, which would have put the customers on their guard. Everything,
again, was done behind the plaintitf's back.]
The action is not maintainable on the special count, even assuming fraud.
The injury is to the debtors. They are bound to pay the plaintiff. It does
not appear that he is in the least delayed, much less prevented from re-
covering. They can recover the amount from the defendant as money had
and received; and if the plaintiff can recover it from the defendant as well
as from them, the result will be that the defendant will repay it, and the
plaintiff recover it twice over. All the actions for fraudulent representation,
apart from special damages, are by the parties to whom the fraudulent rep-
resentations have been made, and from whom money or goods have been
obtained by means thereof.
[Pollock, C. B. Supposing that A. obtains the goods of B. from his
bailee C. by a false representation to C, cannot B. sue A. for the conver-
sion ?]
That is a different case : it is a case of specific property, which has been
converted and disposed of by the defendant, and of which the plaintiff has
been deprived by the defendant.
[Pollock, C. B. No doubt the case of money is different in that respect,
but do the cases differ in principle 1]
It is conceived they do : for the damage is to the debtor, and he has the
right of action.
[Watson, B. Why should not the plaintiff have a right of action as
well ]]
Because he has sustained no damage. Why should he recover his debts
twice over 1
[Pollock, C. B. He ought not, and should refund what he has received
of them twice over.]
But non constat that he may not recover the whole. The plaintiff can
no more maintain this action than a banker could have sued a party for
forging the signature of a customer to a cheque, before the forgery was
made felony. Nor is the plaintiff in any better position on one count than
the other ; the second count is that the same case expanded on the record,
which is proved under the common count ; and if he cannot recover under
one count, he cannot upon the other. No special damage that is alleged
was proved, and the money claimed cannot be recovered, cither as general
damage under the special count, nor as money received to the plaintiff's use
under the indebitatus count.
Pollock, C. B. We are all of opinion that the action is in some form
maintainable, on the facts proved ; and we are also all of opinion that there
was no misdirection. The only question is as to the form of count ou
which the defendant is liable to the amounts claimed and the amount recov-
erable ; as to which we think that the plaintiff certainly ought not to
G24 CATTS V. PIIALEN. [CHAP. VI.
recover from the defendant any sums he has received from his debtors ; so
that the verdict must be reduced by those amounts, whatever tliey are, as
he cannot be allowed to recover them twice over. This, probably, will
leave so little to be disputed, that the defendant would hardly press for a
new trial, even if he were entitled to it.
BuAMWKLL, B. There was no misdirection, nor was there any want of
evidence. And beyond all doubt the defendant will have to repay the
money he has received (so far as it has not already been received by the
plaintiff from his debtors), leaving the defendant to recover it, if he can,
from Pugh. The only question is, as to whether the claim is in the nature
of special damage under the special count, or general damage, or money
received to the plaintiffs use under the indebitatus coimt.
Martin, B. In my opinion it is recoverable as general damage under
the special count.
"Watson, B. There was no misdirection, and there was abundant evi-
dence. The only question is as to the form in which the money is recov-
erable. Rule discharged.
JOHX CATTS, Plaintiff in Error v. JAMES PHALEN & FRANCIS
MORRIS, Defendants in Error.
In the Supreme Court of the United States, January Term, 1844.
[Reported in 2 Howard, 376.]
This case was brought up by writ of error, from the Circuit Court of the
United States for the District of Columbia and county of Alexandria.
The facts were these : —
The State of Virgtnia, in and prior to the year 1834, passed several acts
authorizing a lottery to be drawn for the improvement of the Fauquier and
Alexandria turnpike road.
In 1839, certain persons acting as commissioners made a contract with
James Phalen and Francis Morris, of the city of New York, by which
Phalen and Morris were authorized, upon the terms therein mentioned, to
draw these lotteries. They proceeded to do so, and employed Catts to
draw the tickets from the wheel. The following extract from the bill of
exceptions sets forth the other facts in the case.
" That the plaintiffs (Phalen and Morris) before the drawing of such
lottery, employed tlie defendant (Catts) to perform the manual operation
of drawing with his own hand, out of the lottery wheel prepared for the
purpose, the tickets of numbers therein deposited by them, in order to be
drawn thereout by the defendant, without selection and by chance, as each
ticket of ininibers successively and by chance presented itself to his hand
when inserted in the wheel, and which tickets of numbers, when so drawn
CHAP. VI.] CATTS V. I'lIALEN. 025
out in a certain order, were to determine the prizes to sucii lottery tickotH
as the plaintiffs had disposed of, or still held in their own hands, aceording
as the tickets of numbers so drawn out corresponded with the iiuniliers on
the face of such lottery tickets respectively.
"That the defendant, before the drawing of the said lottery, and after
he was employed to draw out the tickets of numbers as aforesaid, fraudu-
lently procured and employed one William Hill to purchase of the plaintilis,
at their office in Washington, with money given by defendant to said Hill
for the purpose, a certain ticket in the said lottery for him, the defendant,
but apparently as for the said Hill himself.
"That the said Hill did accordingly purchase such ticket of the plaintiffs
at their said office, apparently as for himself, and really for defendant, and
with money furnished to said Hill by defendant as aforesaid, and delivered
such ticket to defendant before the drawing of said lottery.
"That defendant, being in possession of such ticket so purchased for him
as aforesaid, did, on the said — December, 1840, at the county aforesaid,
undertake and proceed, in pretended pursuance and execution of his said
employment in behalf of the plaintiffs, to draw out of the said lottery
wheel, with his own hand, the said tickets of numbers, whilst at the same
time he had fraudulently concealed in the cuff of his coat certain false and
fictitious tickets of numbers fraudulently prepared by him, which exactly
corresponded in numbers with the numbers on the face of the ticket so
held by him as aforesaid, and fraudulently prepared in the similitude of
the genuine tickets of numbers which had been deposited in the said lottery
wheel for the purpose of being drawn out by defendant, without selection
and by chance as aforesaid.
" That defendant, when, under pretence of drawing out such genuine
tickets of numbers, he inserted his hand into tlie said lottery wheel, fraud-
ulently and secretly contrived, without drawing out any of the genuine
tickets of numbers deposited in said wheel, to slip between his finger and
thumb the said false and fictitious tickets of numbers before concealed in
his cuff as aforesaid, and produced and exhibited the same to the agent of
the plaintiffs, and other persons then and there present and superintending
the drawing of said lottery, as and for genuine tickets of numbers properly
drawn from the said wheel ; by reason of which fraudulent contrivance, the
number of the lottery ticket so purchased for defendant, and in his pos-
session as aforesaid, was registered in the proper books kept for that piu--
pose by the plaintiffs, as the ticket entitled to a prize of $15,000, so as to
enable the holder of such ticket to demand and receive of the plaintiffs the
amount of such prize, with a deduction of fifteen per cent.
"That the defendant afterwards, in the month of February, 1841, again
fraudulently procured and employed the said Hill, in consideration of some
cei-tain reward to be allowed him out of the proceeds of such pretended
prize, to present the said lottery ticket as a ticket held by himself to the
VOL. II. — 40
626 CATTS V. PHALEN. [CIIAP. VI.
plaintiffs, at their office in New York, and there demand and receive of
them as for himself, but for defendant's use and benefit, payment of the
said pretended prize, and for that purpose the defendant delivered the said
lottery ticket to said Hill, who did accordingly present the same to plain-
tifis at their said office, and then and there received of them, as for himself
and really and secretly for the defendant, the amount of such prize, with
such deduction of fifteen per cent as aforesaid."
Phalen and Morris brought an action in the circuit court against Catts to
recover back the amount which was thus paid, viz. : $12,500. The decla-
ration contained three counts, two of whicli were abandoned at the trial ;
the one retained being for money had and received by the defendant below
(Catts) to the use of the plaintiffs.
The facts above set forth were not controverted, but the defendant relied
upon a law of Virginia (to take effect from the 1st of January, 1837),
passed for the suppression of lotteries ; and also upon his being an infant,
under the age of twenty-one years, when the lottery in question was
drawn.
Whereupon the defendant prayed the court to instruct the jury as
follows, to wit : —
" If the jury shall believe, from the said evidence, that the said lottery
was drawn under the said act of the Commonwealth of Virginia, and the
said contract so given in evidence as aforesaid, that then the said lottciy
■was illegal ; and if plaintiffs paid the amount of said prize, under the belief
that said ticket had been fairly drawn, the plaintiffs cannot recover. And
if the jury shall further believe, from the said evidence, that in December,
1840, when the said lottery was drawn, said defendant was an infiint under
the age of twenty-one years, that then the plaintiffs are not entitled to
recover in this action."
Which instruction the court refused ; to which refusal of the court the
defendant excepts, and this, his bill of exceptions, is signed, sealed, and
ordered to be enrolled, this 9th day of June, 1842.
The jury returned a verdict in favor of the plaintiffs for $12,500, to bear
interest from 15 th March, 1841.
Upon this exception, the case came up to this court.
Coxe and Semmes for the plaintiff in error.
Jones and Brent for the defendants in error.
Mr. Justice Baldwin delivered the opinion of the court.
Phalen and Morris brought an action in the court below, to recover from
Catts the sum of $12,500, which they alleged he had received for their use,
and being so indebted, promised and assumed to pay, to which the plaintiff
plead the general issue.
It appeared in evidence on the trial, that the legislature of Virginia had
authorized lotteries, to raise money for improving a turnpike road in that
State, which were placed imder the superintendence of commissioners ap-
CHAP. VI.] CATTS V. I'll AL EN. 627
pointed under those laws, who by articles of agreement contracted with
the jjlaintills to manage and conduct the drawing of the lotteries authorized
by the laws, on certain terms therein stipulated, one of which took place in
Virginia, under the circumstances set forth in the statemeut of the case by
the rej)orter.
In the argument for the plaintiff in error here, it has been cunlendeil
that this lottery was illegal by the suppressing act of 1834, whicli pre-
cluded a recovery of the money he received; but as, in our opinion, this
cause can be decided without an examination of that question, we shall
proceed to the other points of the case, assuming fur present purposes the
illegality of the lottery.
Taking, as we must, the evidence adduced by the plaintiffs below, to lie
in all respects true after verdict, the facts of the case present a scene of a
deeply concocted, deliberate, gross, and most wicked fraud, which the de-
fendant neither attempted to disprove or mitigate at the trial, the conse-
quence of which is, that he has not, and cannot have any better standing
in court than if he had never owned a ticket in the lottery, or it had never
been drawn. So far as he is concerned, the law annuls the pretended draw-
ing of the prize he claimed ; and in point of law, he did not draw the
lottery ; his fraud avoids not only his acts, but places him in the same
position as if there had been no drawing in fact, and he had claimed and
received the money of the plaintiffs, by means of any other false pretence ;
and he is estopped from avowing that the lottery was in fact drawn.
Such being the legal position of Catts, the case before us is simply this :
Phalen and Morris had in their possession $12,.500, either in their own
right, or as trustees for others interested in the lottery, no matter which ;
the legal right to this sum was in them ; the defendant claimed and re-
ceived it by false and fraudulent pretences, as morally criminal as by
larceny, forgery, or perjury; and the only question before us is, whether
he can retain it by any principle or rule of law.
The transaction between the parties did not originate in the drawing of
an illegal lottery ; the money was not paid on a ticket which was entitled
to, or drew the prize ; it was paid and received on the false assertion of
that fact ; the conti'act which the law raises between them is not founded
on the drawing of the lottery, but on the obligation to refund the money
which has been received by falsehood and fraud, by the assertion of a draw-
ing which never took place. To state is to decide such a case, even if the
instructions prayed by the defendant had been broader than they were.
The instructions prayed were, 1. That if the jury believed from the evi-
dence, that the lottery was drawn under the law of Virginia, and the con-
tract referred to, then the lottery was illegal; and if plaintiffs paid the
amount of said prize, inider the belief that said ticket had been fairly
drawn, the plaintiff cannot recover. 2. That if the jury shall believe from
the evidence, that in December, 1840, when the lottery was drawn, the
G28 THOMPSON v. iioward. [chap. vi.
defendant was an infant, the plaintiffs are not entitled to recover in tliis
action.
A party cannot assign for error the refusal of an instruction to which he
has not a right to the full extent as stated, and in its precise tenns ; the
court is not bound to give a modified instruction varying from the one
prayed : here they were asked to instruct the jury, that the belief of
the plaintiff that the ticket had been fixirly drawn, and the consequent
payment, prevented a recovery, without refeiTing to the fact in evidence,
that that belief was caused by the false and fraudulent assertions of the
defendant.
The second instruction asked was, that the plaintiffs could not recover, if
the defendant was a minor in December, 1840, which the court properly
refused, because they were not asked to decide on the effect of his minority
when the money was received in February, 1841 ; and because, if he had
then been a minor, it would have been no defence to an action founded on
his fraud and falsehood.
The first instruction, if granted, would have excluded from the considera-
tion of the jury, all reference to the fraud which produced such belief in
the plaintiff, and they must have given it the same effect, whether it was
founded in fact, or caused by the false asseveration of the fact by the de-
fendant, knowing it was a falsehood, and thus depriving the jury of the
right to decide on the whole evidence.
The second instruction asked would, if granted, have also taken from
the jury the right of finding for the plaintiff, if the defendant had been of
full age when the fraud was successfully consummated by the receipt of
the money, which was the only fact on which the law could raise a promise
to repay, for certainly none could be raised at any previous time ; so that
had these instructions been given, the verdict must have been rendered for
the defendant without taking into view the only evidence on which the
plaintiff relied, whether it was available in law or not.
For these reasons, the judgment of the circuit court is affirmed, with
costs.^
MALACHI THOMPSON v. EBENEZER B. HOWARD.
In the Supreme Court of Michigan, February 2G, 1875.
[Reported in 31 Michirjan Reports, 309.]
Error to Kalamazoo Circuit.
J. L. Halves for plaintiff in error.
Arthur Brown, Dwight May, and Hoyt Post for defendant in error.
Grave.s, C. J. The plaintiff sued the defendant in case to recover of him
for having, as he alleged, enticed into his service and harbored his minor
1 Nortli\vi;stern Ins. Co. v. Elliott, 7 Sawyer, 17, accord. — Ed.
CHAP. VI.] THOMPSON V. HOWARD.
629
son, a young man about nineteen years of age. The evidence went to show
that the parties having been near neighbors iu Cooper, Kalamazoo Coiiuty,
the defendant removed to Missouri, and, without phiintiff's knowledge or
assent, and against his wishes and desire, persuaded and induced the young
man to leave his father, the plaintiff, and go to defendant's place in 'Sih-
souri, and there work for the latter on his promise of wages ; that the de-
fendant, besides holding out inducements to the young man to go and enter
his service, furnished money to pay his flire, and that in consequence he
went to Missouri about the 23d of May, 1870, and worked for defendant
and remained there until April, 1871, when an elder brother, who was sent
after him by plaintiff, induced him to return.
The main defence to the action consisted of evidence, admitted under
objection, that shortly before this action was brought the plaintiff sued the
defendant in assumpsit before a justice, to recover on the basis of contract
for the minor's services ; that the cause was brought to trial before a jury,
and a hearing had upon the merits ; that the case was submitted, but sul>
sequently discontinued after a disagreement of the jury.
This course of the plaintiff, the defendant claimed, constituted a decisive
election by the former to treat the transaction as one of contract and not
tort, and he insisted the proceedings effectually put an end to any right the
plaintiff may have had before, or might otherwise have had, to count upon
the procurement of the young man to leave his father and serve defendant,
as a tortious act.
In regard to this part of the case, the court told the jury in substance,
that it was competent for the plaintiff to ignore the ground of tort involved
in the defendant's arrangement with the minor, and to treat the transaction
as one of contract between the plaintiff and defendant, to be enforced agree-
ably to its nature ; and that if the jury were satisfied that the plaintiff,
with full knowledge of all the facts going to show the defendant committed
a tort, had yet elected to place his right on the basis of contract, and had
prosecuted a suit on that theory and foundation down to the submission of
the case to a jury, he could not afterwards turn round, repudiate such elec-
tion, and maintain a suit in tort ; but that if the plaintiff prosecuted his
first suit in question in ignorance, or under misapprehension of the fiicts
to show the tortious character of defendant's conduct in relation to the
transaction, he would not be precluded from maintaining his action founded
on the wrong.
The jury found for the defendant, and the plaintiff has brought error.
The fact is undisputed, that before this suit the plaintiff prosecuted, as
before mentioned, on the basis of agreement, for the purpose of recovering
his son's wages. There is no controversy in regard to the proceedings then
had. An objection was taken to the admission of tlie proDf on two gminids;
but the first is not noticed in the brief, and was not alluded to in argument;
and the second must stand or fall with the charge which involves the same
G30 THOMPSON V. HOWARD. [cUAP. VI.
point. As the case is presented, the judgment against the plaintiff must
stand if the defendant's position in r^ard to the election of remedy pre-
vails; because the facts upon which that position depends are in no manner
questioned, and if the position itself is sound, the plaintiff was not entitled
to recover, no matter what view might be taken of the other points made
by him.
The general doctrine applicable to the feature of the case we are consider-
ing, appears to be well settled.
A man may not take contradictory positions, and where he has a right to
choose one of two modes of redress, and the two are so inconsistent that the
assertion of one involves the negation or repudiation of the other, his de-
liberate and settled choice of one, with knowledge, or the means of knowl-
edge, of such facts as would authorize a resort to each, will preclude him
thereafter from going back and electing again. Broom's Max., IGO; Smith
V. Hodson, and notes ;^ Jewett v. Petit ;^ Rodermund v. Clark ; ^ Smith v.
Baker.*
As there was no evidence or claim that the parties ever actually agreed
together at all in regard to the minor's services, it was not possible to refer
the assumpsit to any real agreement of a date later thau that of the de-
fendant's supposed wrongful enticement, and not possible to infer that the
assumpsit rested on a distinct arrangement, and left the original wrong as a
ground for a separate suit.
The first action extended to the minor's services from the beginning ;
and when the plaintiff brought it, he thereby virtually affirmed that his son
was with defendant in virtue of a contract between the latter and himself,
and not by means of conduct which was tortious against him.
His proceeding necessarily implied that defendant had the young man's
services during the time with plaintifTs assent, and this was absolutely
repugnant to the foundation of this suit, which is that the young man was
drawn away and into defendant's service against the plaintiff's assent.
The case is, then, subject to the doctrine before stated, and the election
involved in the first suit precluded the plaintiff from maintaining this ac-
tion for the wrong. The charge on this subject was sufficiently favorable
to the plaintiff, and as this feature of his case was fatal to his right to re-
cover, the other points require no notice.
The judgment should be affirmed, with costs.
The other justices concurred.^
1 2 .Smith's L. C. 2 4 Mich. 508. s 45 n. Y. 354.
* L. K. 8 f". P. 350 ; 5 Eng. R. 323.
* It was held in Nield v. Burton, 49 Mich. 53, that one who had failed in an action of
assumpsit for want of jurisdiction in the court in which the action was brought, could
not afterwards sue in tort. — Ed.
CHAP. VI.] NATIONAL TIIUST CO. V. GLEASON d id. G31
NATIONAL TRUST COMPANY op the CITY OF NEW YORK,
Respondent, v. VALENTINE GLEASON et al., ArrELLANTs.
In the Court of Appeals of New York, April 27, 1870.
[Reported in 77 New York Reports, 400.)
Appeal from judgment of the General Term of the Superior Court, of
the city of New York, affirming a judgment in favor of plaintifT, entered
upon a verdict.
The nature of the action and the facts are set forth sufficicutly in the
opinion.
Ira Shafer for appellants.
Frederick Smyth for respondent.
Rapallo, J. The complaint in this action avers that about the h\\\ of
July, 1873, the defendants were possessed of certain documents purporting
to be forty-two first mortgage bonds of the Buffalo, New York, and Eric
Railroad Company, and that they obtained and received from the plaintiff
$30,000 on the deposit of said pretended bonds with the plaintiff as secu-
rity, but the plaintiff afterwards discovered that said bonds were forged
and worthless, wherefore it alleges that the defendants have had and re-
ceived to and for the use of the plaintiff the sum of $30,000, are indebted
to the plaintiff in that sum. The complaint also contains averments excus-
ing the plaintiff from tendering the bonds to the defendants, and demands
judgment for the $30,000, and interest.
The answers of the defendants who have answered deny the material
allegations of the complaint, and the answer of the defendant Amelia A.
Gleason sets up, in addition, that at the times of the transactions alleged
in the complaint she was a married woman, the wife of the defendant
Valentine Gleason.
The action was purely ex contractu, and one which, under tlie common-
law system of pleading, would have been denominated an action of assump-
sit for money had and received. No tort is alleged. There is no averment
that the defendants had any connection with or knowledge of the forgery
of the bonds, or that they were engaged in any conspiracy to defraud the
plaintiff. No right or claim to damages for any wrong is set up, but simply
an indebtedness for money had and received to the use of the plaintifT, or
perhaps for money borrowed.
To maintain such an action it is necessary to establish that the defend-
ants have received money belonging to the plaintiff or to whicli it is entitled.
That is the fundamental fiict upon which tlic right of action depends. It
is not sufficient to show that they have by fraud or wrong caused the plain-
632 NATIONAL TKUST CO. V. GLEASON ct al [ciIAr. VI.
tiff to pay money to others, or to sustain loss or damage. That is not the
issue presented in the action.
The phiintiff introduced evidence which, as is claimed, establishes that
all the defendants were acting in concert, and were guilty in a greater or
less degree of complicity in the forgery of the bonds. That the bonds were
passed off upon the plaintiff by tlie defendant Charles liolston, who received
from the plaintiff the money advanced by it, and afterwards absconded.
Upon this evidence (throwing out of view the special questions raised aa
to the liability of the defendants who were married women, and of those
defendants as to whom it is claimed that the evidence was insufficient to
connect them with the forger}-) it was a question of fact for the juiy whether
Ivolston, in receiving the money, was acting in behalf of those engaged with
him in the forgery, and was carrying out the common purpose with the
authority and for the benefit of all his confederates. It was not necessary
to establish that each defendant personally received a share of the proceeds
of the bonds. If the whole proceeds were received by a common agent,
those for whose benefit it was thus received were jointly liable for the entire
sum ; and this result would not be varied by the circumstance that the
common agent failed to account, and absconded with the proceeds.
It was nevertheless a question of fact and not of law, whether the several
defendants who were guilty of complicity in tlie forgery were interested in
the money received by Rolston. Mere complicity in a forgery or other
crime does not, as matter of law, render every guilty party liable in a civil
action, ex contractu, for money had and received, or as borrowers, to every
person who has been defrauded of money by means of such crime. To
charge a party in an action of tliat character, the receipt of the money by
him, directly or indirectly, must be established. His complicity in the
crime is not the cause of action, but only an item of evidence tending to
establish his interest in the jiroceeds.
These questions are fully presented in the case at bar, by exceptions to
the charge, and by requests to charge. As to the defendants, Mrs. Gleason
and H. S. Corp, they were also presented by a motion for a nonsuit. Among
other grounds specified on that motion were the third, that as to Mrs.
Gleason, who was a married woman, the plaintiffs had not shown that she
had received any portion of the money obtained by Rolston from the plain-
tiff, or that any portion of it went to the benefit of her sejiarate estate ; and
the sixth, that there was no evidence that either of the defendants partici-
pated in the money obtained by Rolston from the plaintiff Before the
charge was delivered the counsel for all the defendants requested the court
to cliarge, among other things, second, that to entitle the plaintiffs to a
verdict they must establish that the defendants directly or indirectly aided
or assisted, or were in some way knowingly implicated in obtaining, tln-oiigh
];<)lston, the money from the plaintiffs ; ninth, that if tlic jury l)elieved that
any defendant merely knew of the alleged intended crime of forgery, but
CHAP. VI.] NATIONAL TRUST CO. V. GLEASON ct al. 633
did not participate in it or receive any of tlie proceeds, the jury would not
be justified in finding a verdict against hiui. The counsel for defendants
Mrs. Gleason and Corp requested the court to charge : third, that the jury
could not find a verdict against Mrs. Gleason unless tliey were satisfied on
the evidence that the money obtained on the bonds passed to the defendant,
or some part thereof, was received by her and went to the benefit of her
separate estate ; fourth, that there was no direct evidence that Mrs. Gleason
received any part of the money, or that any part of it went to the benefit
of her separate estate ; eighth, that before the plaintiff can recover of either
of the defendants in this action it must show that such defendant received
some portion of the money obtained from the plaintiff on the forged bonds,
either personally or by an agent, and if by an agent the agency must be
proved, and in case of the absence or insufficiency of such proof as to any
defendant such defendant was entitled to a verdict.
The court charged the jury, among other things, that the law of the case
was, " that those who took part, a guilty part, no matter w^hat that part
was, how small or how great, in the commission of the forgery of the bonds
of the Buffalo, New York, and Erie Railway Company, were responsible in
this case for the money that was obtained on any part of those bonds by
the defendant Rolston. That it was immaterial what the part taken was,
provided anything was done by any one of the parties for the purpose of
assisting in accomplishing the success of the forgery ; that each was respon-
sible with the other."
In view of the requests made, directing the attention of the court to the
point, it is very clear that the court held and instructed the jury, as the
law of the case, that the mere fact of a person taking a guilty part, to any
extent whatever, in the commission of a forgery, or in aiding in it, was
sufficient to render him legally responsible, in an action for money had and
received, to any person advancing money on the forged security ; and the
case was in substance submitted to the jury, to be determined on the same
principles as if the defendants were on trial on an indictment for forgery,
or a conspiracy to defraud. However desirable it may be to render judg-
ment against persons guilty of such offences, in any form of proceeding in
which they may be brought before the court, whether civil or criminal, the
law does not permit that indulgence of our desire to administer justice in
the abstract, but confines us to prescribed forms of proceeding, applicable
to particular cases. The right to a civil remedy is not under our statute
merged in the crime, but the civil right of action must be made out. The
alleged cause of action in this case is the receipt by the defendants of the
plaintiff's money, and I think the eighth request to charge correctly stated
the law, and the charge should have been given, viz. : that to maintain the
action the plaintiff must show that the defendants received some portion of
the money, either personally or by an agent, and if by an agent the agency
must be proved. What should be sufficient evidence to authorize the jury
634 NATIONAL TKUST CO. V. GLEASON ct ul. [ciIAP. VI.
to iufer such an agency, is a different question. This request was not
granted, but as it was raade only on behalf of Mrs. Gleason and Corp, the
exception is available only to them. The exception to the charge however,
that all those who took any guilty part in the commission of the forgery
were liable for the money, was taken in behalf of all the defendants. That
the meaning of the judge was that a guilty complicity in the forgery, irre-
spective of any actual or constructive receipt of the proceeds, would be
sufficient to sustain this action, is clearly shown, and was conveyed to the
jury, by the answer of the judge to the second request of all the defendants,
viz. : that to entitle the plaintiffs to a verdict they must establish that the
defendants directly or indirectly aided, assisted, or were in some way know-
ingly implicated, in obtaining through Rolston the money from the plain-
tiffs. To this request the judge replied that he so charged with this
modification, " that when persons are engaged in the commission of a
felony, the law is not very particular in ascertaining how far the conse-
quences of that felony reach, to the knowledge of those persons, but if they
commit a felony they are responsible for all the natural consequences that
flow from that. Why do men forge bonds ] They forge them for the pur-
pose of having money obtained from honest people upon them. Now if,
bonds being forged, even an unknown person should obtain money upon
them, who is legally responsible] why the person who forged the bonds."
The rule was thus broadly laid down that any person who forges or aids
in the forgeiy of an instrument is liable in an action ex contractu, for money
liad and received, to any person who may advance money upon the forged
paper, without regard to the question who got the money, and even if the
person is unknown. However sound the rule of responsibility laid down
may be in respect to the criminal offence, or perhaps as applicable to an
action for damages for an injury caused by the crime, it cannot be sustained
as applicable to an action for money had and received or money borrowed.
This modification was excepted to on behalf of all the defendants. To the
ninth request on behalf of all the defendants, that if the jury believed that
any defendant merely knew of the alleged intended crime of forgery, but
did not participate in it or receive any of the proceeds, the jury would not
be justified in finding a verdict against them, the judge replied : " That is
the law, gentlemen, if you can imagine such a case, and if a party stands by
during the commission of a felony or a part of it, and merely knows that it
is going on and does not participate in it. 'inhere must be some assistance,
by the presence, or by some act or advice or help of the jiarty, to imj)licate
in the crime, and if there is any act, as I said before, — any act or advice
or assistance given, which is given for the purpose of effecting the felony, it
makes the party doing that, or saying that, guilty of complicity."
That part of the request which touches the subject of the receipt of the
j)roceed8, is not noticed, and in connection with the other parts of the
charge it clearly appears tli;it in the view of the learned judge, any advice
CHAP. VI.] NATIONAL TRUST CO. V. GLEASON d al. 635
or assistance by presence, by saying anything, or otherwise, in the comnus-
siou of a felony, whereby a third party is defrauded of money, is sullicient
to make the offender liable in this form of action, no matter who receives
the proceeds.
Not a single authority has been cited in support of the theory on whicii
the case was submitted to the jury. All the authorities cited by the plain-
tiff's counsel relate to actions for conspiracies and torts, and in his points
he treats this as an action for damages for a conspiracy. But it is impos-
sible to sustain this position, as the complaint contains no allegations show-
ing any wrong done by the defendants, but rests purely and simply upon
the allegation that the defendants received the money which was advanced
upon the forged bonds, and are indebted for it as money liad and received
to the plaintiffs use, and the point is expressly taken, throughout the trial,
that the action cannot be maintained without proof of this essential allega-
tion. If a man's goods are taken by an act of trespass, and are subse-
quently sold by the trespasser and turned into money, he may maintain
trespass for the forcible injury, or waiving the force he may maintain trover
for the wrong, or waiving the tort altogether he may sue for money had
and received. Pollock, C. B., Rodgers v. Maw.^ And the rule is the same
here, even if the goods are stolen. But to maintain the action for money
had and received, the goods must have been turned into money and the
defendant must have received the proceeds, directly or indirectly. To
maintain such an action it is necessary that a certain amount of money
belonging to one person should have improperly come into the hands of
another, and there must be some privity between them.^ It is difficult to
conceive upon what legal principle a wife who merely aids and abets her
husband in the commission of a forgery, or a meclianic who is employed to
execute some part of the work and is paid for his services, having no con-
cern with or interest in the fruits of the crime, can be held liable in an
action ex contractu for money advanced upon the forged instrument, what-
ever may be their responsibility in a criminal prosecution for tlie offence.
As to Mrs. Gleason, an action ex contractu can be maintained against her
only by showing that she is liable upon some contract made in a separate
business carried on by her, or with reference to her separate estate, or for
which she has charged her separate estate ; and we think the point is well
taken that there is no evidence of any such contract on her part, or at
least that the question should have been submitted to the jury as requested.
If there were evidence showing that slie had received any part of the money,
and the jury had so found, she might possibly have been liable on the
ground that the money went to the benefit of her separate estate, but no
such question was submitted. The only evidence affecting her, to which
our attention is called, was to the effect that she was the wife of one of the
1 15 M. & W. 448.
2 Addison on Con., 1062 ; Greenl. on Ev., §§ 120-122.
636 NATIONAL TRUST CO. V. GLEASON et al. [CHAP. VI.
conspirators and was acquainted with the others, and that they were in the
habit of meeting at the house where she resided with her husband, and part
of the forging was done there, and that 'she was present when the forged
seal of tlie Buffalo, New York, and Erie Eailroad Company was dehvered
to her husband and examined by him, and that the forged cancelhng stamp
■was dehvered to her in a parcel to be delivered to her husband, though it
does not appear that she knew what it was. These circumstances may
tend to show some knowledge on her part of the transaction, but do not
establish that she received any money for the benefit of her separate estate,
nor make out a case of liability on her part in an action upon an implied
contract.
The point relating to the incompetency of Pettis as a witness by reason
of his conviction of a felony in the State of Massachusetts, is covered by
the decision of this court in the late case of Sims v. Sims,^ in which it was
held that a conviction in another State did not render a person incompetent
to be a witness here. We do not think that the circumstance that at the
time Pettis was examined as a witness the term of his sentence had not
expired, distinguishes this case from that of Sims v. Sims.
We have not examined the numerous exceptions to rulings upon evi-
dence, nor to the refusal to dismiss the complaint as to particular defend-
ants on the ground of the insufficiency of the evidence to connect them
with the crime, as, for the reasons already stated, the judgment must be
reversed. Many of the exceptions are covered by the views before ex-
pressed, which show that proof of a conspiracy between the parties and of
their complicity in the crime, and of any facts tending to show that Rolston
in receiving the money w^as acting as the common agent or for the common
benefit of all and with their assent, were competent for the purpose of
establishing that the defendants received the money for which they are
sued, and that the payment of it to Rolston was virtually a payment to
all for whom he was acting. Tliese were the material questions which
should have been submitted to the jury.
The judgment might be sustained against the defendant Rolston, as the
uncontroverted evidence shows that he received the proceeds of the bonds,
but as it is stated that he was not served with process and has not appeared,
a separate judgment against him alone cannot stand.
The judgment should be reversed and a new trial granted, with costs to
abide the event.
All concur. Judgment reversed.
1 75 N. Y. 466.
CHAP. VI.] DIETZ'S ASSIGNEE V. SUTCLIFFE. 637
^i^y r-^lX
DIETZ'S ASSIGNEE v. SUTCLIFFE, Ac.
In the Court of Appeals of Kentucky, in Equity, January 25, 188.3.
[Reported in 80 Kentucky Reports, G50.]
Breckinridge and Slielby for appellants.
Morton and Parker for appellees.
No brief.
Judge Pryor delivered the opinion of the court.
In the month of December, 1879, J. J. Dietz made an assignment of his
stock of goods, consisting mainly of boots and shoes, to the appellant
J. H. Shropshire. Prior to this assignment, the appellees, except W. S.
Thorn & Co., instituted their action at law, and obtained attachments that
were levied on the property of Dietz.
The assignee, \ipon his motion, was made a party defendant, and by an
answer controverted all the grounds of the attachment. The actions by
the appellees were in ordinary for goods sold and delivered. The appellant
pleaded in each action that the goods sold to Dietz by the plaintiils were
sold on a credit, and their several accounts were not due when the suits
were instituted. The appellees, in reply, and for the purpose of avoiding
this defence, alleged that Dietz purchased the goods fraudulently, and for
the fraudulent purpose at the time of not paying therefor ; and further,
that they were unable to identify the goods received by Dietz from them.
A demurrer was entered to the several replications by the appellant, and
the demurrer overruled. An issue was then tendered, and a judgment
rendered for the appellees. The question arises in this case, as stated by
counsel for the appellant, " Can a vendor from whom goods have been
purchased on a credit, by means of fraudulent representations, upon dis-
covering the fraud, and before the expiration of the time of credit, sue in
contract for either the stipulated price or the reasonable value of the goods,"
etc. 1 It is well settled that where the vendor has been defrauded by his
vendee, the former may elect to treat the contract as a nullity, and bring
his action for the recovery of the specific property, or trover for their value ;
and this doctrine proceeds upon the idea that the contract of sale having
been rescinded at the election of the vendor, he is still vested with the
title.
Many of the authorities also go further, and maintain that, as the con-
tract is void, or as the vendor may so treat it, he may sue in assumpsit upon
a quantum meruit for the reasonable value of the goods. That the vendor
is entitled to such a remedy the appellant denies, and counsel have called
our attention to numerous authorities sustaining this view of the question.
He maintains that it is settled by the weight of authority that, in cases of
638 DIETZ'S ASSIGNEE V. SMTCLIFFE. [CIIAP. VI.
wrongful taking, the law does not imply a promise to pay, and that this
rule has but two exceptions : —
First. When the wrong-doer has sold the goods and received the money,
then an action for money had and received may be maintained, and tlie
amount received for them recovered, but not the value of the goods.
Second. When the wrong-doer has died, an action for goods sold and
delivered may be brought against his executor, as at common law an action
for a tort did not survive, and if assumpsit could not be maintained, the
party would be without a remedy.^
Nor do we see how, after the repeated adjudications of this court on the
question, it is possible to say that the plaintiffs, on repudiating the contract
for fraud, had not their election between contract and tort as to the form
of action. The remaining question is, what is the effect of a waiver of the
tort 1 " Does it restore the express contract which has been repudiated for
the fraud, or does it leave the parties in the same condition as if no express
contract had been made, — to such relations as result by implication of law
from the delivery of goods by the plaintiff and their possession by the
defendant ] On this subject the decisions are conflicting, but I think the
weight of authority, as well as the true and logical effect of the acts of
the parties, is to leave the parties to stand upon the rights and obligations
resulting from the delivery and possession of the goods." See Anderson v.
Jones ; ^ Jones v, Gregg.*
In Weigand v. Sichel,* it is said : " Where a party fraudulently purchased
goods on a credit, and gave his note due at a future day, the vendor, upon
discovering the fraud, may bring his action immediately for goods sold and
delivered."
In this case the facts not only conduce to establish the fraud, but the
proof is so strong as to leave no doubt in the mind upon tlmt question.
The fraud vitiated the entire contract as made between the parties, and the
appellees, as is conceded in argument, could at once have maintained an
action for the specific pi'operty ; if so, and the contract as to the appellees
could be treated by them as void, then we have the goods in the possession
of and owned by the appellees delivered by them to the appellants' as-
^ A portion of the opinion containing a citation and discussion of cases has been
omitted. — Ed.
2 37 Mo. 3 17 Ind.
* 4 Abb. App. Dec. 592. It is not accurate to say that the plaintiffs sought to avoid
the contract of sale. It is the credit only that is sought to be avoided. It was the
sale of goods which the plaintiffs by their action affirmed. It was, however, a sale where
the credit wa.s obtained by fraud, and in law amounted to a sale for cash. In stating
it in their complaint, therefore, to be a sale, and for cash, the plaintiffs but stated the
contract according to its legal effect. They did not seek to avoid the contract of sale.
They endeavored, merely, by proof of the act of fraud, to reduce the transaction to a cash
sale. The complaint and the proof were to the same purport. Hunt, J., in Weigand v.
Sichel. — Ed.
CHAP. VI.] NAT, BANK OF DALLAS V. NAT. liANK OF N. Y. 639
signer, and by him taken away. Will not the law imply a promise, upon
this state of fact, on the part of Dictz to pay to the appellees the reasouuhlu
value of the goods 1
If the express contract is void, and can be treated as such by the appel-
lees, how is it that the fraudulent vendee or his assignee can rely upon its
terms to defeat the action for goods sold and delivered 1 The vendee will
not be allowed to set up his own fraudulent act to defeat a recovery by his
vendor. The assignee of this fraudulent vendee is relying on the special
contract as a bar to the recovery, because by its terms the debts were not
due at the time the several actions were instituted.
In order to avoid this defence, a state of fact is presented in the reply
that, if true, renders that contract as to the appellees a nullity, and if void,
it is no obstacle in the way of the action for goods sold and delivered.
The fact of the owner delivering his goods to the assignor of the appellant
has no connection with any special contract as to the time at which the
goods were to be paid for, or the value agreed upon by the parties. In
other words, no express contract exists, and the action for goods sold can
be maintained.
As to the claim of W. S. Thorn & Co., who are asserting claim to the
specific property, we need only to say that the transfer to the assignee
gives to the latter no greater right than the debtor had, and for that
reason the judgment for Thorn & Co. was proper, the fraud being clearly
established.
The judgment as to all the appellees is affirmed.
THE CITY NATIONAL BANK OF DALLAS, Respondent, v. THE
NATIONAL PARK BANK OF NEW YORK, Appellant.
In the Supreme Court of New York, March Term, 1884.
[Bf/wrtec? in 32 Hun, 105.]
Appeal by the defendant from a judgment entered upon the verdict of a
jury, and from an order denying a motion for a new trial made upon the
minutes of the justice before whom the action was tried.
The action is brought to recover the balance due upon a deposit made by
the plaintiff with the defendant. The answer admits all the allegations of
the complaint, and sets up by way of counter-claim that in September, 1880,
A. F. Hardie was president of the plaintiff's bank ; that in that month the
plaintiff's officers first discovered that Hardie was indebted to it in about
$30,000, which he was unable to pay, and for which he had imposed on
the plaintiff worthless collaterals ; that the officers and managers of the
plaintiff took away from Hardie the management of the bank and kept
f)40 NAT, BANK OF PALLAS V. NAT. BANK OF N. Y. [ciLVr. VL
him as a figure-head merely until he should succeed in raising money enough
to pay his debt to the plaintiff, and that the plaintiff, by its officers and
agents, conspired with Hai-ilie that he should set forth and obtain from
whomsoever he could persuade to lend him, upon worthless collaterals,
money enough to pay this indebtedness; that in pursuance of this conspiracy
Hardie came to New York, and in September, October, and November, 1880,
fraudulently borrowed of the defendant $29,GG1 upon the faith of worthless
collaterals ; that at this time Hardie was insolvent, and that he borrowed
the money with the preconceived intention not to pay for it ; that the
plaintiff retained Hardie in his office as president for the purpose of giving
him credit until he had borrowed this money, and then dismissed him, and
for the same purpose permitted him to transfer the plaintiff's account in
New York to the defendant from another bank ; that of the money thus
obtained by Hardie the plaintiff and Hardie applied $13,000 to pay a part
of Hardie's indebtedness to it, or obligations of others upon which Hardie
was liable; $9338.33 being so applied October 4, 1880, and $1000 October
27, 1880, and the rest of the $13,000 at various dates between October 1
and J^ecember 1, 1880 ; that the balance of the money the defendant paid
directly to Hardie, or to others at his request. The answer then demands
judgment against the plaintiff for $25,GG1 and interest.
Francis G. Barloio for the appellant.
Moore, Low and Sandford for the respondent.
Davis, P. J. The other grave question of the case,^ to wit, the right to
counter-claim in this action on the ground of joint conspiracy to defraud on
the part of plaintiff and its president, was disposed of by the court by
holding that damages for such a conspiracy, if established, could not be
interposed as a counter-claim in this suit.
The defendant alleged that the plaintiff and Hardie conspired to defraud
the defendant, and b}'^ means of such conspiracy Hardie obtained a large
sum of money beyond that which is shown to have been paid by him to
plaintiff, and sufficient facts are averred to maintain, if pi-oved, an action
of tort for fraud against the plaintiff and Hardie. Either of the conspira-
tors would be liable to such an action for the damages sustained by the
fraud. The defendant sought to waive the tort and proceed upon the
implied contract to repay the money obtained by the fraud. This clearly
could be done. Harway v. The Mayor j'^ Wood v. The Mayor;* Coleman v.
The People ; * Andrews v. Artisans' Bank.^
But it is insisted, in substance, that such an action on the implied promise
would be on a joint and not several contract, and that for that reason, inas-
much as Hardie is not a party to the action as plaintiff or otherwise, the
implied contract cannot be set up in this suit as a counter-claim. We think
the implied contract in such case which arises upon waiver of an action for
^ A portion of the opinion discussiuf; the question of notice has been omitted. — Ed.
2 1 Hun, G28. » 73 N. Y. 55G. * 58 N. Y. 555. * 20 N. Y. 298.
CHAP, VI.] NOLAN V. MANTON. 641
tort is joint and several and not joint alone. Suoli was the nature of
the tort and each party could have been separately sued upon it, and the
same reason extends to the implied contract. Either conspirator may bo
sued upon his implied promise, and be made to answer for the whole of the
money obtained by the fraud consummated under the conspiracy. If this
be so, when either conspirator brings an action against the injured party
upon contract, we see no sound reason why his liability on an implied con-
tract to pay the defendant the moneys fraudulently obtained may not bo
asserted against him as a counter-claim. It was error, therefore, to take
the question of the defendant's counter-claim away from the jury, assuming
that there was evidence sufficient to carry it to the jury, as we must,
inasmuch as it was not withheld on any such ground.
The judgment should be reversed and a new trial granted, with costs to
abide the event.
Brady and Daniels, JJ., concurred.
Judgment reversed, new trial ordered, costs to abide event.
ANASTASIA NOLAN v. JAMES MANTON, Administrator of
JOHN MANTON, Deceased.
In the Supreme Court of New Jersey, June Term, 1884.
[Reported in 46 New Jersey Law Reports, 231.]
On writ of error to the Middlesex Circuit.
Argued at February term, 1884, before Beasley, Chief Justice, and Jus-
tices Depue, Scudder, and Van Syckel.
For the plaintiff in error, E. Cutter and A. V. Schenck.
Contra, J. W. Beekman.
The opinion of the court was delivered by
Depub, J. John Manton died January 6th, 1877, leaving a widow and
several children surviving. At the time of his death there was to his credit
in the Emigrant Industrial Savings Bank, in New York City, the sum of
$1007.43. The bank-book, which was the evidence of the deposit, was in
his name alone. In January, 1878, the sum so deposited, with interest,
amounted to $1063.67.
After his death, his widow, without letters of administration, received
this money from the bank in several sums, between January 27th, 1878,
and March 6th, 1879. She intermarried with one Nolan in September,
1882. In May, 1883, the plaintiff, a son of the deceased, took out letters
of administration on the estate of his father, and then brought this suit
against Mrs. Nolan to recover of her the money. The action is in assump-
sit for money had and received.
VOL. II. — 41
642 NOLAN V. MANTON. [CIIAP. VI.
The evidence on the part of the plaintiff tended to show that the defend-
ant obtained the money with the understanding that she was to hold it
until an administrator should be appointed, and then account for it. On
this presentation of the case, the defendant received the money on an ex-
press trust, upon an undertaking to pay it to an administrator when one
should be appointed. This trust inured to the benefit of the administrator
when letters of administration were taken out, and thereupon a contract to
pay him was implied.^ The motion to nonsuit was therefore properly
denied, and the exception on that ground is not sustained.
The defendant, as part of her case, denied that she received this money
on any such trust, or upon any trust whatever. She contended, and so
testified, that the moneys deposited in the bank from time to time, and
making up the account, were her moneys which she had earned, and that
they were in fact deposited in the bank in the names of her husband and
herself ; that she did not discover that the bank-book was in her husband's
name alone until after his death ; that she demanded the money of the
bank as money belonging to her, and that the officers of the bank, being
satisfied that she was the " right owner," paid the money to her as such.
On this evidence the defendant's counsel asked the judge to charge that
the payment to the defendant by the bank, and the receipt by the defend-
ant of the money on a claim by the defetidant that the said money was her
money, would not raise an implied promise in law, on the part of the de-
fendant, to pay the money to the plaintiff, and consequently that the action
could not be maintained in the absence of proof of an express promise by
the defendant to pay the same. The judge refused the request, and charged
that if the defendaut took the money from the bank when it was not hers,
there was an implied assumption that she would return it when requested,
whereupon the defendant took an exception.
The only question presented by this exception is whether, by the law of
this State, an action for money had and received will lie where the defend-
ant has not received the money in suit on a contract, express or implied,
to hold it for the use of the plaintiff, — in other words, whether privity of
contract, express or implied, is not necessary to give a plaintiff a standing
in court to maintain the action.
The leading case in the English courts on this branch of the law is Wil-
liams V. Everett.^ The facts in that case were these : One Kelly, residing
abroad, was indebted to several persons in England. Among his creditors
was the plaintiff, Williams.* Kelly remitted bills to the defendants, his
bankers, in London, with directions to pay the amount in certain specified
proportions to the plaintiff and other of his creditors. Williams had also
received a letter from Kelly, ordering payment of his debt out of that remit-
tance. Williams showed the letter to the defendants, and offered an in-
demnity if they would hand over one of the bills to him. The defendants
1 Com. Dig. " Action on the Case," E ; 2 Greeul. Ev. § 11<». - 14 East, 582.
CHAP. VI.] NOLAN V. MANTON. 643
refused to indorse the bill or to act upon the letter, and afterwards received
the money on the bills. Williams then brought his action against the de-
fendants for money had and received to his use. At the trial he wa.s non-
suited on the ground that, the defendants having renounced the terms on
which the bills were remitted before tlie money was actually received, it
was only money had and received to the use of the remitter of the bills.
The nonsuit was sustained wi ba7ic, for the reason that there was no assent
on the part of the defendants to hold the money for the purposes mentioned
in the letter, and that, in order to constitute a privity between the plaintilF
and defendants, an assent, express or implied, to receive the money for the
plaintiiT was necessary.
Vaughan v. Matthews/ is another precedent to the same effect. The
plaintiff was administrator of Jane Vaughan, who died in March, 1843.
The defendant was executor of Ann Vaughan, who died in March, 1844.
Jane had lent to one Evans £150, and received from him, as security, his
promissory note, payable, as was said by the plaintiff, to Miss Vaughan.
After the death of Ann, the defendant, as her executor, brought suit against
Evans on the note, alleging it to be payable to IMiss Vaughans, and not to
Miss Vaughan only, and as Ann survived her sister, she would have the
right to enforce payment. Evans settled the action and paid the amount
to the defendant. The plaintiff alleged that the letter " s " had Vicen
fraudulently added to " Vaughan," and that the defendant had wrongfully
received payment from Evans of the promissory note, which really belonged
to the plaintiff as administrator of Jane, the payee, who liad furnished the
consideration. For the defendant it was contended that, admitting the
whole of the plaintiff's case as it was stated by him, an action for money
had and received could not be maintained. The court directed a nonsuit
to be entered. Lord Denman, C. J., delivering the opinion of the court,
said : "The defendant received the money in his own right, in payment of
a note which, if genuine, wovdd have been his property as executor of Ann
Vaughan. The payment was not in respect of a note to which, if genuine,
the plaintiff would be entitled ; nor can the defendant be considered as act-
ing in any respect as his agent. The facts stated do not raise the legal
inference tliat the money paid by Evans was had and received by the de-
fendant to the use of the plaintiff. Evans may still be liable to the plaintiff
for the money lent to him by Jane Vaughan, if not upon tlie note, and the
defendant may be liable to refund to Evans the money paid by the latter
under mistake or misrepresentation; but there is no contract, express or
impUed, between the plaintiff and the defendant."
There is also a series of decisions in the courts of New York of like im-
port, which hold that where two claimants for the same money apply for
payment to the party from whom it is due, and one of them is recognized
as being entitled to it and is paid, to the exclusion of the other, who is, in
1 13 Q. B. 187.
644 NOLAN V. MANTON. [CIIAP. VL
fact, the one entitled to it, the latter cannot sue the former to recover the
money of him, for the reason that the party receiving the money, having
received it under a claim of right in himself, the law will not imply any
contract or promise by him to hold the money for the use of the other, or
to pay it over to him, and that therefore there is not, under such circum-
stances, any privity of contract on which to found the action. Patrick v.
Metcalf;^ Butterworth v. Gould ;^ Rowe v. Bank of Auburn;' Hathaway
V, Town of Homer ; * Decker v. Saltzman.^
There are decisions in the courts of some of our sister States giving to
the action of assumpsit, as an equitable action, a broader scope, and holding
that to warrant the action there need be no pi'ivity of contract except that
which results from one man having another's money, which he has not a
right to retain in foro conscientice, and which he ought, ex aequo et bono, to
pay over. But if we were disposed to advance the action up to those
limits, we would be restrained by a precedent in this court, which is bind-
ing upon us. 1 refer to the case of Sergeant and Harris v. Stryker.^ The
facts in that case were these : The sheriff of H. had offered a reward for the
apprehension of a prisoner who had escaped from jail. Stryker arrested
the prisoner and lodged him in jail. Sergeant and Harris, falsely repre-
senting to the sheriff that they had airested the prisoner and were entitled
to the reward, received it of the sheriff. Stryker then sued Sergeant and
HaiTis for the money so received by them of the sheriff, as money received
to his use. This court held that the action would not lie. The ground
was that there was not between the parties any privity, express or implied,
whereon to found the action. Chief Justice Hornblower, in delivering the
opinion of the court, cited "Williams v. Everett, supra, with approval, as a
case decided upon great consideration. He re-affirmed the doctrine of that
case, that privity of contract was necessary to the action, and that could
arise only from the receipt of the money under an assent, express or im-
plied, to hold it for the benefit of the plaintiff. That assent, he said, could
not be implied in that case ; " for the defendants, instead of receiving the
money as the money of the plaintiff or for his use, claimed and received it
as their own, and wholly deny the plaintiff^s right to it." I cannot distin-
guish the case just cited from the case presented by this exception. There
was, at the trial, evidence both ways, and we cannot, on this bill of excep-
tions, consider on which side the evidence preponderated. The defendant
was entitled to the instruction that the action was not maintainable if, in
the judgment of the jurj', the money was received by her as her own money,
under a claim of right to it and without any assent to hold it for the
benefit of the estate, or the administrator, when an administrator should
be appointed.
It was also insisted that this action was maintainable against the defend-
1 37 N. Y. 332. 2 41 N. Y. 450. a 51 N. Y. 674.
« 54 N. Y. G55. ^ 59 N. Y. 275. 6 i Ua,,-. 404.
CHAP. VI.] BROWN V. RROWN. 645
ant as an executrix de son tort. But it will bo observed that this suit is
not on an action by a creditor to recover of the defendant as executrix in
virtue of assets of the deceased in her hands, nor is she sued as executrix
de son tort. Tlie gravamen of the action is money had an<l received t(j and
for the use of the plaintiff as administrator of the deceased, and the iiues-
tion presented by the record is whether the money was so received as to
create, as between defendant and the plaintiff, that privity which is an
essential element of such an action.
For the reason above given, the judgment should be reversed.
HANNAH M. BEOWN, Appellant, v. ADELBERT BROWN,
Respondent.
In the Supreme Court of New York, May Term, 188G.
\B£,\JOTted in 40 Uun, 418.]
Appeal from a judgment in favor of the defendant, entered in Columbia
County upon the report of a referee.
This case came before the General Term upon the judgment-roll and
without the evidence. The referee reported as follows : —
" First. That prior to and on and for some time after August 27, 1877,
the plaintiff and defendant lived together as husband and wife at South
Pownal, Vermont.
" Second.. That while so liviug together the plaintiff was called by the
defendant Annie Brown.
" Third. That on the 27th day of August, 1877, the defendant deposited
in the Hoosac Savings Bank of North Adams, in the State of ]\Iassaclui-
setts, $1000 to the credit of Annie Brown, but with the understanding
with the officers of the bank, that the sum so deposited should be payable
to the order of himself.
" Fourth. That shortly thereafter the defendant gave to the plaintiff the
bank-book issued by said bank and representing such deposit, with intent
to transfer and assign to her the indebtedness of said bank on account of
such deposit, and all control over the same.
*^ Fifth. That said book remained in the possession of the plaintiff, and
was held by her as her own until a long time thereafter, when the dofoud-
ant took the same from the plaintiff by force and against her will.
" Sixth. That the plaintiff and defendant thereupon separated, and did
not afterwards live together as husband and wife.
''Seventh. That the plaintiff notified the officers of said bank that she
was the owner of said book and the moneys represented thereby, and de-
646 BROWN V. BROWN. [CIIAP. VI.
mauded payment of the same to herself, which was refused, whereupon she
forbade payment of the same to the defendant.
" Eighth. That afterwards said defendant took said book to said bank,
and surrendered the said book and drew all the moneys and interest due
upon the account represented by said book, amounting in the aggregate to
81077, and took and kept the same to his own use.
" As a conclusion of law I find that the defendant is entitled to judgment
for his costs therein, which I accordingly direct."
The referee also found, in response to requests of the plaintiff : That the
defendant made a valid gift to plaintiff of the book and of the title to the
money represented by it. That the bank, upon payment to defendant,
retained the book. The referee stated in his opinion, and the fact is im-
plied in the referee's findings upon other requests of the plaintiff, that
the rules of the bank required the production of the book as a condition of
payment.
W. H. Silvernail for the appellant.
H. A. Johnson for the respondent.
Landox, J. This case was decided in favor of the defendant by the
application of the well-settled rule, that where two rival claimants demand
payment, each in his own right, of the debt which the debtor owes to one
of them only, if the debtor pays the wrong claimant, the debt due to the
rightful creditor is not thereby affected, and he acquires no title to recover
the money of the party who wrongfully claimed and received it. Patrick
V. ^fetcalf;^ Butterworth v. Gould.^ But this rule rests upon the basis
that the wrongful claimant obtains the money upon his own independent
claim; that in using his own he does not prejudice his competitors ; that
he does not exercise any right or title of which he has wrongfully divested
his competitor ; that he is not assuming any agency for him ; that he is
not in privity with him. Carver v. Creque ;^ Peckham v. Van Wagenen ; *
Hathaway v. Town of Cincinnatus; ^ Bradley v. Root.®
Here the defendant had made an absolute gift of the bank-book, and of
the title to demand and receive the money represented by it, to the plain-
tiff. When the defendant, by force and against the will of the plaintiff,
took the bank-book from her, he knew that he had no title to it or the
money represented by it. Whatever claim he might assert to the money
he well knew rested upon his fraud, if not upon his crime. But he thus
obtained the physical power and api)arent authority to represent the
plaintiff in the presentation of the book to the bank, and by the act of
presenting the book he did represent that whatever title or authority she had
in the matter was exercisible by him, and he thus obtained the money.
He can take no advantage from his own wrong, and since he could not,
in the absence of any title from the plaintiff, lawfully, as against her,
» 37 N. Y. 332. 2 4] N. Y. 450. » 48 N. Y. 385.
* 83 N. Y. 40. «* G2 N. Y. 434. « 5 Paige, 632.
CHAP. VI.] BROWN V. BROWN. <; 17
obtain the money except as her agent, he may not, with the proceeds in
his pocket, deny that he obtained them in the only manner in which he
could lawfully obtain them.
It is probable the plaiutiil" could have maintained an action against tho
bank, since the bank had notice of her rights. But it was open to tho
plaintiff to elect to adopt the acts of the defendant or repudiate thoni. Ho
shall not be heard to plead his own turpitude, and is therefore cstojtped
to deny that he did not assume to act as the agent of the plaiutiil". JSho
may waive the tort, adopt his acts, and compel him to restore their
fruits.
It comes to the same result if we regard the defendant as trustee ex
maleficio. He knew that by his gift the book and the money it rcjirc-
sented, and the rights it confen-ed, were the plaintiff's. He took the book
by force, exercised her rights, and obtained the money. It was his duty to
do nothing with her property and her rights for his own advantage, and
he is, at her election, her trustee ex maleficio of the proceeds of his acts of
usurpation. He held the proceeds of the book by same title that he held
the book, and. as he had no title to the book he had none to its proceeds,
and must account to the true owner. Comstock v. Hier.^
The judgment should be reversed, new trial granted, referee discharged,
costs to abide event.
BocKES, J., concurred.
Learned, P. J. I concur in this result on the ground that the defend-
ant, by taking away plaintiff's property by force, committed a tort (trespass
or trover) for which he became liable. He remains liable still ; and tho
amount collected by him, being the amount of the indebtedness expressed
in the book, is the measure of the damages to which she is entitled.
Judgment reversed, new tried granted, costs to abide event. Referee dis-
charged.
1 73 N. Y. 269.
INDEX.
An asterisk indicates that the reference is to a decision, and to the first page of the
case. Wlien a dictum is referred to, tlie reference is to the page ou whicli the dictum
is found.
ACCOUNTS,
recovery of money paid under mistake as to, I. 287* 291* 298* 300*, 302*,
308* 312*, 317* 329*.
ACTION, RIGHT OF,
survival of, I. 29* 30* 35* 43* 65*.
AGENCY,
recovery for goods delivered under mistake as to the existence of an agency,
I. 190*.
recovery of money lent under a mistake as to authority of defendant's agent,
I. 199* 202* 204*, 205*, 209*.
recovery of money paid under mistake as to authority of defendant's agent,
I. 183*.
recovery for services rendered under mistake as to authority of defendant's
agent, I. 197*.
when claim of plaintiff against agent is lost by agent's payment to principal,
I. 460.
when not, I. 231* 268* 458*.
right of agent to indemnity from principal, II. 443*.
recovery of money paid by an agent ou an illegal contract, II. 578*.
APPRENTICE,
recovery of fees paid, service being terminated by death, I. 521*, 527*.
ASSUMPSIT, INDEBITATUS,
more extensive remedy than debt, II. 361*.
lies wherever there remains only a money debt due on a simple contract, II. 104,
note 2*.
See Frauds, Statute of ; Rescission ; Seal ; Unpekformed Contract.
BANKRUPTCY,
right of party paying money under mistake, against estate, I. 302*.
to assignee, against estate, I. 287*.
recovery of money paid to secure creditor's consent to a discharge, II. 507*,
514*.
right of assignee to waive tort, and sue for goods sold and delivered, II. 606*.
BILL OF EXCHANGE. See Negotiable Paper.
650 INDEX.
CAKEIER,
right of, to indemnity for money expended in preservation of property, II. 452*.
liability of, to refund money unlawfully demanded as a condition of carrying
goods, II. 540, note*,
liability of, to refund money unlawfully demanded as a condition of delivering
goods, II. 534*.
CHECK. See Negotiable Paper.
COMPULSION, PAYMENT UNDER. See Dukess ; Legal Process ; Statu-
tory Liability ; Taxes ; Usury.
CONSIDERATION, FAILURE OF,
must be entire, or consideration must be apportionable, II. 61*, 72*, 79*
81*, 95*.
CONSPIRACY,
liability of conspirator in assumpsit for money had and received by co-con-
spirator, II. 550* 031*, G39*.
CONTRACT. See Assumpsit; Quasi-Con tract ; Rescission; Seal; Unper-
formed Contract ; Work and Labor.
CONTRIBUTION,
right to, between tenants in common, II. 271*.
between wrongdoers, II. 492* 493* 494* 499* 502*.
See Surety.
DAMAGES. See Recovery.
DISTRESS. See Legal Process.
DURESS,
recovery of money paid to prevent injury to busmcss, II. 550*, 565*.
to compound a felony, II. 519*.
to get possession of goods wrongfully held under a claim of lien, II. 536*
538* 558*.
to get possession of goods wrongfully withheld by pledgee, II. 522*.
on unauthorized demand of an official, II. 527*, 529*, 544* 565*.
to release property from an unlawful distress, II. 523*, 532* 541*.
under threat of unlawful distress, II. 526*.
to avoid litigation, II. 526* 561*.
to i)revcnt sale of property under a power of attorney contained in a
mortgage, II. 538*.
to secure transfer of stock, II. 548*.
See Bankruptcy ; Carrier; Legal Process ; Taxes; Usury.
EQUITY,
jurisdiction of, in case of money paid under mistake, I. 302* 303, note 1*.
EXECUTOR,
liabiUty of, to refund money received on a sale of property to which he had no
title, I. 337* 379*, 390*.
INDEX. Col
FELONY,
recovery of money paid to compound, II. 519*.
FOREIGN LAW,
wbat the foreign law is, is a question of fact, I. 123*.
FORGERY. See Negotiable Paper.
FRAUD,
recovery of money obtained by, II. 62i*, 641*.
right of plaintiff to disaffirm contract of sale obtained by, and to sue for goods
sold and delivered, IL 583* 588* 589* 590, note 1* GOG*, G37*.
riglit of plaintiff to disaffirm contract obtained by, and to sue for work and
labor, II. 604*.
when party rescinding because of fraud must make restitution, II. 596, note 1*.
loss of right to disaffirm, IL 595* 604*.
FRAUDS, STATUTE OF.
recovery of money paid, defendant relying on Statute, I. 482, 484* 485*,
489*.
for goods sold, defendant relying on Statute, I. 491*.
for work and labor, defendant relying on Statute, T. 483* 500*.
effect of defendant's offer to return goods, on plaiiilifT's riglit to sue for goods
sold and delivered, I. 491*.
recovery of money paid, plaintiff relying on Statute, II. 237*, 247*.
for goods sold, plaintiff relying on Statute, II. 254*.
for work and labor, plaintiff relying on Statute, II. 243*, 251* 255* 308.
See Improvements.
FREIGHT,
recovery of freight paid in advance, voyage not being completed, I. 515* 537*,
541, note 1.
recovery of freight pro rata itiiieris, completion of voyage being impossible, II.
178* 190*, 195* 198*.
HONOR, OBLIGATION OF,
no recovery of money paid on account of, I. 73*, 413* ; II. 367.
HUSBAND AND WIFE,
recovery of money lent by wife to husband, II. 356*, 358, note 1.
right of one rendering services in the mistaken behef that she is defendant's
wife, to sue for work and labor, II. 358*.
See Markied WoiiAN.
ILLEGALITY,
recovery of money paid in performance of an illegal contract, I. 79*; II. 504*,
505*, 507*.
payment induced by fraud of defendant, II. 624*.
recovery of money paid, defendant refusing to perform contract because of
iUegaUty, II. 1* 5* 43, notes 1 and 2, 51*.
recovery of money paid by plaintiif's agent on an illegal contract, II. 578*.
effect of plaintiff's knowledge of proposed illegal use of subject-matter of
contract, II. 35, note 1*.
effect of plaintiff's facilitating the doing of the illegal act, II. 35, note 1*.
652
INDEX.
ILLEGALITY, — continued.
right to rescind because of illegality, II. 43, note 3*.
effect of plaintiff's ignorance of fact on which illegality depends, II. 5* 7*.
See In Paki Delicto, etc. ; Sunday Laws ; Ultra Vires.
IMPOSSIBILITY,
recovery of money paid under a contract impossible of performance as to de-
fendant, I. 515* 520* 521*, 523*, 527* 532* 537* 511, note 1.
recovery of money paid under a contract impossible of performance as to plain-
tiff, 11. 230*.
recovery of freight pro rata itineris, completion of voyage being impossible, II
178* 190* 195* 198*.
recovery for work and labor, |)erformance by plaintiff being impossil)lc because
of the destruction of the subject-matter, II. 182* 188* 192* 213* 218*
224* 229*.
recovery for work and labor, performance of contract being impossible because
of the death of one of the parties to the contract, II. 185* 219*.
recovery for work and labor, work being stopped by State, II. 215*.
I^IPROA'EMENTS,
recovery for improvements made as a consideration for an oral promise of de-
fendant to convey land, defendant refusing to convey, I. 494*.
recovery for improvements made by plaintiff in possession, under an oral con-
tract of purchase, defendant refusing to convey, I. 499; II. 2SG* 290*, 297*
319; plaintiff refusing to accept conveyance, II. 308, 309* 316*.
recovery for improvements made under a mistake as to title, I. 96*; II. 291*,
300* 311* 327*, 330*.
See Recovery.
INDEMNITY,
party taking, cannot plead payment over, II. 592.
See Agency ; Statutory Liability.
INFANT,
liability in indebitatus assumpsit, tort being waived, II. 580* 628.
IN PARI DELICTO, POTIOR EST CONDITIO DEFENDENTIS,
when maxim applicable, I. 79*; II. 1*, 2* 7* 9* 43, notes 1, 2, and 3, 51*
504* 505* 507* 513, 579.
test for determining whether one is in pari delicto, I. 579; II. 53, note 1*,
507*, 509, note 1* 511* 514*.
INSURANCE,
recovery of premium paid under a mistake as to title, I. 182* 188*.
premium paid under a policy voidable because of innocent misrepresenta-
tion, I. 187*.
premium paid under a policy voidable because of fraud, I. 188 ; II. 596,
note 1*.
premium paid, policy being forfeited for nou-payment of premiums, II.
230*.
money paid in ignorance of a breach of condition, I. 273*.
money paid in ignorance of other insurance, I. 289*.
INTEREST,
recovery of, II. 2S5*.
INDEX. 653
JUDGMENT,
liability ou, uot a liability iu contract, I. 23*.
when judgment against a tort-feasor bars an action for money had and received,
II. 57i*, 613*.
See Legal Pkocess.
LANDLORD AND TENANT,
right of tenant who has been ejected and who has paid mesne profits, to re-
cover money paid as rent, IL 525, note 1*.
LAW,
distinction between, and fact, I. 103, 123*, 162.
mistake and ignorance of law, I. 153*, 157, note 1*.
no distinction taken originally between mistake of law and fact, I. 69, 70*, 71*,
72, 73* 74, 75*.
relief at law because of mistake of law, I. 77* 79, Si, 87, 118, 144, 14-4, note 1*,
145* 153*.
relief iu equity because of mistake of law, I. 94, 95*, 100, 103, note 2, 108,
111, note 2, 175.
money paid under mistake of law to an officer of court can be recovered, I.
106* 109*.
effect of misrepresentation of law, I. 72, 96*, 100, note 3*.
what is misrepresentation of law, 104, note,
right to set off money paid under mistake of law, I. 88*, 167*.
LEGAL PROCESS,
recovery from defendant of money paid in extinguishment of a debt of defen-
dant for which plamtiif's goods were distrained, II. 3S9*, 391*, 394*, 398,
399.
recovery of money paid on a judgment obtained because of want of jurisdiction
in court to try question raised by defendant's plea, II. 361*.
in an action, court having jurisdiction to try all questions raised, II.
368* 370.
to release one's person or property from detention under a writ pro-
cured by plaintiff under color of law, to extort money, II. 371*,
385*.
under a judgment, subsequently reversed, II. 377*, 379*, 383*, 3S6*.
under an execution calling for the face of a judgment, judgment having
been paid in part, II. 375*.
in extinguishment of defendant's debt to release property from attachment,
II. 402*.
recovery from defendant, plaintiffs goods liaving been sold under an execution
running against defendant, II. 396*.
recovery of money paid to release goods unlawfully .seized by an officer, II.
400* 408*.
for taxes iUcgally assessed, II. 406*, 414*, 418*, 421* 426*, 429*,
436*.
LIMITATIONS, STATUTE OF,
no recovery of money paid on a claim barred by, I. 414 : 11. 367.
654 IXDEX.
MARRIED WOMAN,
liability of, Lii couut for money had and received, II. G35.
See Husband and Wife.
MISTAKE,
money paid under, is recovered because of failure of consideration, I. 223, 233,
252, 272, 303, 363, 3S9, 437, 442.
recovery at law of money paid under, is on equitable grounds, I. 85, 134, 149,
239, 442, 447, 477-
mistake must have induced payment, I. 297, 300.
payment must not have been made after investigation with a view to settling a
disputed claim, I. 297, 434*.
distinction between mistake and inability to prove a fact, I. 77, note 1* 484, note 3*.
right of a volunteer paying money under a mistake, I. 305, 307.
when party receiving may be treated as a trustee, I. 302*.
defendant must be unjustly enriched, I. 73*, 83, 87, 123* 214, 298, 307, 403*
405*, 407* 411* 414, 419.
enrichment must be at plaiutifTs expense, I. 329*, 415*.
when demand must be made before bringing action, I. 323, 416* 424*, 42G*.
effect of an irrevocable change of position by defendant, I. 81, 87, 216, 219,
270* 315, 451* 454, 454* 458*, 462* 463* 475, 479.
burden of showing such change, I. 216, 283*, 473*.
effect of plaintiff's negligence in making mistake, I. 276, 297, 315, 317*, 334,
428* 430* 433, 463*.
defence of purchase for value, I. 327, 435*, 442, 446, 449.
See Accounts; Agency; Improvements; Law; Negotiable Paper; Recovery;
Sales; Work and Labor.
MONEY HAD AND RECEIVED,
what is money, I. 435*, 451*; II. 93, note 1*.
an equitable action, I. 85, 134, 149, 477; II. 367, 579.
MORAL OBLIGATION,
extmguishment of, not a ground for a compensation, II. 264*
NEGOTIABLE PAPER,
a. Bills of Exchange.
recovery of money paid in purchase of, void for want of stamp, I. 401*.
by acceptor under mistake as to a collatend fact, I. 326.
by drawee or acceptor, bill forged as to drawer's signature, I. 212*, 214*,
224* 246* 256*.
by drawee or acceptor, bill forged as to amount, I. 237, 476*.
by drawee or acceptor, bill forged as to payee's indorscinent, I. 231* 236*.
by drawee or acceptor, bill genuine, but bill of lading given as security, a
forgery, I. 226* 249*.
recovery by party paying for honor of indorser or drawer, indorsement or draw-
ing being a forgery, I. 220*, 239*.
recovery of money paid in purchase of a forged bill, I. 363*, 393* 399*.
effect of drawer's being estopped from denying the genuineness of bill, on plain-
tiff's right to recover, I. 399*.
INDEX. 655
NEGOTIABLE PAPER, — continue J.
b. Checks.
recovery of money i):iid by drawee, under mistake as to drawer's account, I.
308*, 312*, 317*, 329*.
recovery of money paid by drawee on a forged indorsement, 1. 270*.
c. Promissory Notes.
recovery of money paid by one as maker of a note, his name being forged, I.
* 264* 269, note 2*.
by maker, on a forged indorsement, I. 260*.
by iudorscr, supposing note to have been duly presented, I. 285*.
PATENT,
no recovery of money paid under a license, patent being void for want of novelty,
1. 185*.
PILOT,
right of, under statute, to half pilotage fees not a contractual right, I. 8.
PROTEST,
effect of, II. 421* 561*.
■when unnecessary, II. 565*.
QUANTUM MERUIT. See Frauds, Statute of; Unperformed Contract;
Work axd Labor.
QUASI-CONTRACT,
distinction between, and contract, I. 1* 2*, 4* 8, 10*, 14, note 2, 17*, 21, note
2, 23*.
distmction between, and tort, I. 29* 33, 34, 35* 37*. 53.
RECOVERY, MEASURE OF,
In an action to recover money paid under mistake, I. 270*, 329*.
money paid under a contract, defendant refusing to perform, 11. 61* 130,
366, 367.
for work and labor, defendant refusing to perform contract, II. 113*, 116*.
for work and labor, plaintiff in default as to contract, II. 153* 157*, 173*.
for work and labor, performance of contractor prevented by State, II. 215*.
for land sold and conveyed, defendant relying on Statute of Frauds, I. 503*,
509*.
for improvements made under mistake as to title, II. 311*, 327*, 330*.
for improvements, defendant refusing to perform oral contract to convey,
II. 297* 305* 309*.
by surety against co-surety, II. 467*, 473*, 483*.
RESCISSION,
distinction between, and abandonment of a contract, II. 102, note 1.
right of plaintiff to treat as rescinded a contract abandoned by defenaant, II.
102, 107, 110, 115, 129.
liability of a defendant for benefits received under a contract mutually rescinded
subsequent to tlie receipt of benefits, II. 130, note 12*, 284*. See Unper-
formed Contract.
656 INDEX.
SALES,
recovery of money paid under mistake as to title at a judicial sale, I. 179*.
title of vendor of a leasehold, I. 337*.
title of trustee selling real estate, 1. 33S*.
title of executor selliug au equity of redemption, I. 379*.
title of party selliug pawned goods at an auction, I. 347*.
title of party selliug over the couuter, I. 368*.
the exjstcuce of au annuity, I. 356*, 392*.
the validity of a bond, 1. 344*.
the genuineness of a mortgage, I. 390*.
the existeucc of an estate by way of remainder, 1. 397*.
See Negotiable Paper.
SEAL, CONTRACT UNDER,
recovery of money paid, defendant failing to perform, II. Ill*, 129*.
for goods sold, defendant failing to perform, 11. 73*, 77, note 1*, 126*.
STATUTE OF FRAUDS. See Frauds, Statute of.
STATUTORY LIABILITY,
not a contractual liability, I. 8, 27*.
right of one, upon whom liability is imposed, to sue for money paid, II. 436*,
441*, 443*.
SUNDAY LAWS,
right to recover for goods sold in violation of, II. 9*, 59*.
SURETY,
nature of right, against co-surety, for contribution, II. 458*, 469, 476.
right recognized at law, II. 466, 4/9*.
when right arises, II. 473* 478* 489.
relation between plaintiff and defendant must be that of co-sureties, II. 466*,
468*.
right to disregard form of obligation in deter miuing this question, II. 458*,
487*, 488, note 1*.
if surety indebted to principal in au amount equal to amount paid, no claim
against co-surety, II. 481*. See Recovery.
right of, agaiust principal debtor, for money paid, II. 457*, 461*.
TAXES,
recovery of money paid under mistake as to an assessment's having been made,
I. 283*.
recovery against one, whose taxes plaintiff has paid under mistake as to title,
II. 323*, 326, note 2* 327*.
recovery of money paid under an illegal assessment of taxes, 11. 406*, 414*,
418* 421* 426* 429*, 432*.
TORT, WAIVER OF,
meaning of phrase, I. 53; II. 359, 600.
right only exists where the defendant is enriched, I. 34, 35* 37*, 54* C5*;
II. 611*, 631*, 039*.
what amounts to an election to sue in tort or assumpsit, II. 577, and note 2*,
628* 630, note 5*.
INDEX. 057
TORT, WAIVER OY, — continued.
right of plainlilF to recover money collected by defendant in his own right, from
plaintiff's debtor, II. 593* 609*, G41*, 015*.
to recover money collected by defendant j)rofessing to act as jilaintiirs
agent, II. 574* 594, 59G*.
to recover money collected by defendant professing to act f(jr phiintiir and
another, II. 620*.
recovery of fees collected by usurper of an office, II. 573*, 574, note 1*.
recovery for work and labor of servant enticed away by defendant, II. 581*,
584* 628*.
liability of one converting goods for goods sold and delivered, II. 000*, 607, note 1.
for money had and received, he havuig sold tiie goods and received money
therefor, II. 590* 591*.
See CoNsriKACY ; Fraud ; Judgment ; Tuespasser.
TRESPASSER,
liability of, for use and occupation, II. 593*, 608*.
ULTRA VIRES,
right of party lending money to corporation, II. II*, 20*, 23*, 30*, 51*.
right of a party to recover for work and labor, II. 55*.
right of party paving money on a contract, corporation pleading ultra vires,
II. 56.
UNPERFORMED CONTRACT,
(a) Defendant failing to perform, contract.
recovery of money paid under, II. 61* 62* 67*, IT", 89* 129*.
right to sue for goods sold and delivered, defendant failing to give a bill or note,
as provided by contract of sale, II. 09* 71, note 1* 86, 108*.
defendant in default as to contract of barter, II. 85* 86, note I*,
recovery for work and labor, II. 83*, 104*, 113*.
right to sue in indebitatus assumpsit, suit having been brought in special
assumpsit, II. 77* 101*.
(6) Plaintiff failing to perform conditions of contract.
recovery of money paid, II. 145*, 175*.
for goods sold and delivered, II. 132* 133* 135* 130, 137* 105* 109*.
for work and labor, II. 131* 138* 139* 140* 148*, 153*, 157* 173*.
effect of retention of personalty by defendant, II. 133*, 136, 137*.
effect of enjoyment by defendant of property annexed to realty, II. 131*, 139*,
218*.
Sec Recovery ; Rescission.
USURY,
recovery of money p:ud under a usurious contract, II. 307, 504*, 505*, 510,
517*.
VOLUNTEER,
one rendering services without expectation of payment at time wlicn service is
rendered cannot recover for work and labor, II. 312*, 345, 349*, 353*.
burden of proof, as to intention, II. 343*, 310*, 349*.
VOL. II. — 42
658 INDEX.
VOLUNTEER, — continued.
recovery of mouey paid by, ■without the request of defendant, II. 2G0*, 271*,
313*^
recovery of money paid by, against wishes of defendant, II. 259*
for goods delivered without request, II. 268*.
for goods delivered against wishes of defendant, II. 278*.
for work and labor, furnished without request, II. 265* 276* 281*, 336*.
right of volunteer to compensation for services rendered under mistake as to
title, II. 2S3* 300* 319*.
right of oue paying mortgage under mistake as to title, II. 313*.
WORK AND LABOR,
right of one to recover compensation, who rendered service supposing that be
was a slave, II. 342*, 343, note 1*.
under a mistake as to contract price, II. 350*.
right of party dismissed from service without sufficient notice, II. 87*.
See iMPKOvEiiEXTS ; Recovery ; Rescission ; Unperformed Contract ;
Volunteer.
WRONG-DOERS. See Contribution ; Tort, Waivor of.
THE END.
^'
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