Mott v. Pettit

1 N.J.L. 344

• Court: Supreme Court of New Jersey
• Decided: May 15, 1795
• Status: Published

Opinion

Per Cur.

You need not press that point — unquestionably interest is due; confine yourself to the form of action.

Stockton. If interest is recoverable in any form of action, as it is admitted to be, the court will never order a new trial merely to remedy a technical error, which has been productive of no injustice to the party impeaching the verdict. 2 Burr. 936.

But the eases that have been cited establish no such principle as has been contended for. The amount of them is that this being an action on the ease, which sounds in damages, the plaintiff is to recover what in equity he ought to receive; under this rule the plaintiff is entitled to all which ex equo et bono the defendant ought to pay. There may be cases, and those cited are such, where no interest is recoverable; as where an over-payment is made by mistake, the person re-[313]-eeiving it is in no fault, and he is therefore liable to refund only what he was not entitled to receive.

But where it appears that the defendant lias received money to which he had no right, wilfully and wrongfully, then the law raises .a contract not only to refund the numerical money received, but also to make satisfaction for the detention. This, then, is what the defendant ought in equity to pay, and it is recoverable in this form of action.

But this objection, if solid, goes to the recovery of interest in any shape, and is not confined to this form of action ; for this is a case of money actually received to the use of the plaintiff, and not a mere implied trust raised by the law. In this form of action the precise fact is laid as the ground of the plaintiff’s action, and in any other form of action it would not be laid. If no interest is recoverable in this form of action, it must be upon the ground that none js actually due, or else this surprising result will follow, that in consequence of stating the precise truth of his case, he can recover no interest, but if he depart from it, then the law will do him justice.

This form of action, however, is technically adapted to the recovery of interest. Its object is to recover all the money actually received to our use ; and the cases that have already been cited, prove that interest was or might have been’ derived from the employment of this money. The money was employed, and in the absence of other testimony, the jury were right in considering the rate of interest, as affording a legal and fair criterion by which to estimate the amount of the profits.

Under these circumstances, when the charge of the court appears to be correct — when there is no doubt as to any material fact — when no surprise is pretended — nor any suggestion made that any further light can be thrown on the subject, is this a case in which the court will exercise the high discretion reposed in them, and set aside a verdict of an intelligent and impartial jury ?

Per Curiam.

Whether the defence made for Pettit at the trial was the one he could have wished, or the best his ease allowed, we know not; we must judge upon it as it ap[31-1] peared to the court and jury. The plaintiff proved that in 1774 and 1775, he paid him, as clerk of this court, the sum of £263 2s.; it does not satisfactorily appear in what description of money, but it does appear that whatever it might have been, it was at that time fully equal in value to gold or silver. In 1788 Mott made a demand of this money, and in the room of it, he is offered a bundle of continental bills, some dated in 1779, which had been delivered by Pettit to his successor, a long time after he had gone out of office. This was not the money that had been deposited — it was good for nothing. The plaintiff says, I must have that money, or you must pay me the value at the time it was received. In answer to this the defendant replies, the money you deposited was paper; had I kept it, it would have been as bad as the continental money at the time of the demand. The plaintiff answers, the deposit was in hard money. Upon this the jury were to pronounce.

Again the plaintiff says, if paper was deposited with you, it was at that time equal in value to hard money; you used it when good, and you must account for it. Defendant says that he cannot be compelled to answer for the mere user of money, which was not thereby deteriorated ; but the court is of opinion that he became instantly liable as a wrong-doer, and the plaintiff is entitled to the value converted.

Again the defendant says, I changed this money for your benefit. The plaintiff replies, in the first place there is no proof of this; and in the next place, if true, you were authorized, neither by me nor by the court, to make an exchange; and we think with the plaintiff upon this point.

In short, the plaintiff proved the receipt of the money in 1775 ; the defendant ought to have exonerated himself by showing that the money was paper, and sunk in his hands, or that he lost it without any default; or that in some other way he was justly and legally excused from returning it. This he has not done, and from the evidence, the verdict of the jury is right, and the charge of the judge at Nisi Prius does not appear to be erroneous.

The objection to the recovery of interest in this case, we. conceive to be groundless. In an action of indebtitatus as-[315J-sumpsit for money had and received, the plaintiff proves that the defendant converted a deposit to his own use; it is therefore, in effect, to recover damages to the amount of defendant’s liability ; and the interest is as much a part of the money received as the principal, and therefore the plaintiff has the same right to demand and receive it.

Rule discharged.