Evans v. Gale

21 N.H. 240

• Court: Superior Court of New Hampshire
• Decided: July 15, 1850
• Status: Published

Opinion

Gilchrist, C. J.

This was not a sale of the note by the defendant to Hanson Evans, or to the plaintiff. The facts stated in the case negative that idea. Hanson Evans went as the agent of the plaintiff, to pay such debt as he should find against his principal, and he delivered the money to the defendant, in payment of what he supposed was a debt against the plaintiff. When he received the note from the defendant, he took it as evidence of the discharge of a debt. The facts found by the case will warrant no other construction. This note the plaintiff now has. He is not holden upon it, for he has guarded himself, by his restricted indorsement, against any liability. He now seeks to recover the money paid by his agent, upon the ground that the agent had no authority to pay such a claim; that the whole transaction having been unauthorized, no rights could be acquired under it, and that consequently the money paid the defendant, was received to the use of the plaintiff.

In the case of Shepherd v. Temple, 4 N. H. Rep. 458, it is said, that a return of a chattel is not necessary to be shown in any case, unless when the purchaser attempts to seek redress by rescinding the contract. But that was a case of a sale of chattels, and to that the remark may be applicable. We are not now called upon to controvert it, as in the present case nothing was bought or sold, and the transaction was the mere payment of a debt.

But if the act of Hanson Evans were what it is considered to have been by the plaintiff, then he retains the note of Knight without having any claim upon it, and ought to return it. He should not compel the defendant to bring a suit to recover the property he delivered to the plaintiff. If the plaintiff chose to disavow the authority of Hanson Evans, he ought not to retain any property which he procured of the defendant by Hanson Evans’s act. He should place the defendant in as good a condition as he was in before he parted with the note. The exact value of the note, it is not material to ascertain. It may be of some value against Knight, or against some person who has held it; and at any rate, whether of much or of little value, it is the property of the defendant, upon the plaintiff’s view of the case. Eor aught that appears in the case, the defendant supposed that Hanson Evans was acting by authority, and that his doings would be ratified by the plaintiff. As there was no return of the note, nor offer to return it, in order to place the defendant in as good a condition as he was in before, the ruling of the court was correct, and the plaintiff must become

Nonsuit.