Parker v. United States

18 F. Cas. 1176

• Court: U.S. Circuit Court for the District of Pennsylvania
• Decided: April 15, 1816
• Status: Published

Opinion

WASHINGTON, Circuit Justice.

It is contended for the plaintiff in error, Parker, that an action for money had and received will not lie, to recover a balance formed by these acceptances, because the same have not been paid; and consequently the balance is not in favour of, but is against the United States. Other points have been made, which need not be decided.

It is admitted by the counsel for the United States, that no case precisely like the present is to be found in the books; that is, of an action for money had and received, brought by the acceptor of a bill of exchange, or the maker of a note, before the same has been paid; and I confess I should be greatly surprised, if any decision to sanction such an action could be met with. If there be any case, in which responsibility to pay money, has been decided to afford a 'ground of action for money had and received, I have never met with it. Responsibility merely, may entitle the party to an action, but not to this form of action. It was never yet heard of, that the acceptor of a bill of exchange, without funds of the drawer in his hands, was allowed to sue the drawer, without proving that he had paid the bill, or done something equivalent thereto; as that he is in execution for the same, under a capias ad satisfaciendum, which as to him, is a satisfaction. The cases are all the other way. 1 Doug. 249; 3 Wils. 18; Greenleaf v. Smith (in this court); 3 Wils. 262, 346, 528; 2 W. Bl. 840.

If responsibility by acceptor, amount to anything, the responsibility of the drawer is a fair set off against it, as there is no doubt, but that he is liable to the holder of the bill, if it be not paid by the acceptor.

The cases cited at the bar, in support of this action, are totally inapplicable. • If the vendor of property accept of a note or bill, in satisfaction of his debt, he is paid by «his own agreement, and will not be allowed to sue for his original debt, in derogation of that agreement; provided there was no fraud or unfairness on the part of the vendee; as if the bill was drawn on a person not having funds. So, if without an agreement to receive the note in satisfaction, the vendor transfer the note, he thereby exposes the ven-dee to a responsibility to pay the same to the holder; which as long as it continues is a bar to an action against him upon the original contract; because otherwise he might be twice charged for the same debt. Besides the assignment of the note, is so far a satisfaction received from the indorsee, that the vendee cannot sue upon the original contract, unless he gets back the note and has it in his power to return it to the vendee. In short, he cannot have' the benefit of the security, which he received as a conditional payment, and at the same time insist to be paid the debt for ‘iv^iich that security was given. But these cases, do by no means decide, that the drawer of a bill of exchange, is a receiver of the amount of it to the use of the acceptor, before the same is paid.

But it is contended, by the counsel for the United States, that this action will he, because, after seeing the account in which these items are debited, Parker acknowledged the balance for which the verdict was given to be due. It would be a sufficient answer to this argument, to observe, that if without payment of the orders to the payees, Parker was not liable in law to pay their amount to the United States, his promise would not bind him; although it were admitted, that he knew at the time, that the orders had not. been paid. But the truth is, that these items were so charged in the account, that Parker upon inspecting it, might well have supposed that these orders had been paid.

The action against Kennan, and Reed and Croasdill, is debt, upon the before mentioned obligation of the 9th of November, 1814. The principles laid down in the case of Parker v. U. S., go fully to decide this.

The obligation was given to secure the payment of any sums, which might be advanced to Parker by the United States, not exceeding 10,000 dollars; for as to the 2,000 dollars, remaining unaccounted for, on the day this bond was given, it was immediately after-wards discharged by the delivery of the ker-seys. The two orders, mentioned in the above opinion, having been accepted but not paid, the amount of them cannot be said to have been advanced, either in law, or in fact; and of course the breach laid in the declaration is not supported.²

These judgments must both of them be reversed and entered for the plaintiff In error.³

2 See the following cases: Giles v. Edwards, 7 Term R. 181; [Young v. Preston] 4 Cranch [8 U. S.] 239; 5 East, 249, as to rescinding contracts. The first case states, that though in part performed, it may be rescinded; and the last case says it cannot, unless the party can be placed in statu quo. See 3 Esp. 82.

3 If the acceptor has no funds of drawer, he has his remedy against the drawer if he pay the bill, or do something equivalent, as being in prison under a capias ad satisfaciendum. 3 Wils. 18; Chit. Bills, 203; 1 Doug. 249.