Frost v. Reed

30 N.H. 17

• Court: Superior Court of New Hampshire
• Decided: December 15, 1854
• Status: Published

Opinion

"Woods, J.

The three defendants having a contract with the Vermont and Massachusetts Railroad, Freeman, one of them, assigned his interest in it to Bevins. To this arrangement Reed and Alexander, the other defendants, became parties, and made with Bevins a division of the work, and an apportionment of the compensation to be received from the company upon the completion of it. Bevins assigned his interest in the contract to the plaintiffs, and there is evidence upon which the jury might, well have found that all the defendants assented to that arrangement and became parties to it; for they treated the plaintiffs as the substitutes and representatives of Bevins, by.paying them sums of money as the work advanced, and afterwards attempting to settle with them. The whole work was finished according to the .contract, the plaintiffs doing that part which devolved upon them by the arrangement, and the defendants received the pay from the corporation for having done the work, or procured it to be done, to the satisfaction of the party.

The question then arises as to the rights of these plaintiffs upon the premises shown, the parties liable to them, and the form of their remedy.

The assignment from Bevins to the plaintiffs having been acceded to by the defendants, the plaintiffs have a right to be considered as the immediate assigns of the defendants, as it respects the equitable results of such a transaction. These clearly are, that the plaintiffs shall stand in the place of the defendants as to the burden and the benefits of the part of the work apportioned to Bevins. It does not change the parties to the original contract with the railroad company, for the company were in no way privy to it. Neither does it establish the plaintiffs in the relation of servants or subcontractors to the defendants, with an absolute liability on the part of the latter to pay them for the work ; for such are not the terms of the agreement. But while the agreement leaves unimpaired and unaltered the original contract with the company, yet, as far as the plaintiffs and defendants themselves are competent to do it, and as it respects their mutual rights and duties, it substitutes the plaintiffs for one of the defendants, and makes a severance of the contract. The parties, in effect, agree that so much of the money to be received as is proportionate to the plaintiffs’ share of the work, shall belong to them.

Without the consent of the company this money could be recovered by the defendants only ; and they did receive it accordingly. But they received it, of course, for the use of the plaiutiffs, who were by the agreements entitled to it.

Because the defendants, as between themselves and the railroad corporation, had an undoubted right to sue for and recover the money .in question as a part of the stipulated pay for the work, it by no means follows that they did not receive it for the use of the plaintiffs. The equitable action of assumpsit for money had and received, is a highly appropriate remedy against those who, having justly, as trustees or otherwise, received money which fairly belongs to another, become chargeable upon the implied promise to pay it over.

It does not become necessary, in the form in which the plaintiffs have declared, to decide what effect would have been given to the assignment of Freeman to Bevins, and from him to the plaintiffs, if the defendants, as one party, had not participated in these transactions; nor whether the action could have been maintained upon the count for work and labor.

The decision proceeds upon the ground that the defendants adopted in favor of these plaintiffs the acts of Freeman and1 of Bevins, and thereby agreed to substitute them in their place with respect to that part of the work which was-assigned to Bevins in the division, and to receive for the plaintiffs’ use the part of the money to be paid for it.

The ruling of the court, that if the defendants knew of the assignment from Bevins to the plaintiffs, they had no right to inspect the instrument, was, under the circumstances of the case, correct. No claim appears at the time to have been made by Bevins or his creditors. The plaintiffs had done the work, and had done it upon the faith that the defendants had treated them and agreed to treat them as their own substitutes in the work, and entitled to the share of the compensation which had been arranged. It was too late to question whether the assignment from Bevins had been made in writing, or what were its precise terms, so long as they knew that there had actually been an assignment, and so long as no claim was set up by Bevins or his creditors. There must therefore be,

Judgment on the verdict.