Stevens v. Cushing

1 N.H. 17

Opinion

Bell, J.

Footnotes

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By this statement two questions are presented for the consideration of the court.

1st. Do the facts stated disclose any cause of action,

gd. Are they sufficient to maintain the action in its present form ? It does not appear, from the statement, whether the crew were discharged upon their arrival at Portsmouth, irupursuance of an authority expressly given the owners to put an end to the cruise, upon the arrival of the vessel in port, in consequence of such an injury as was sustained in this case, of that there was any established usage that on such event the owners might put an end to the cruise, and discharge the crew. It does not appear whether this' discharge of the crew was with or against their consent, nor whether the defendant individually assented to, or dissented from this discharge by the owners. Evidence of these facts, or some of them, at least, are essentially necessary to a decision of this case upon what seems to be its merits. But whatever may be the merits of the case, the statement presents facts which show that an action for money had and received cannot be maintained. The plaintiff rests his right to recover on the ground that the defendant has not performed his contract in relation to the voyage, and that this gave him a right to consider the contract as rescinded, and recover back the money paid as a consideration. Where money is paid upon,a contract which is executory on the part of him who has received the money, and he altogether fails of performing the contract, the injured party has an election, either to bring an action on the contract to recover damages for the non-performance, or to consider the contract as rescinded, and recover back the money so paid, as money had and received to his use.

In such case the law presumes the assent of him who received the money to the dissolution of the contract; and thereupon raises a promise to repay the money so received without consideration. Contracts are considered as rescinded by inference of law only when .the contract is entire and J , wholly unexecuted; if executed in part, the party injured resort t0 an action on his contract to recover damages fot the non-performance. (1).

The defendant, in this case, executed his contract in part, he entered and remained on board the privateer, and did duty as a seaman, for at least part of the cruise.

The action for money had and received cannot, therefore, be maintained ; but the plaintiff, if injured, must seek his remedy by an action on the contract.

The verdict must be set aside, and a verdict entered for the defendant, according to the agreement of the parties.

RichardsoN, C. J., having been of counsel, did not sit in this cause,

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7 D. & E. 181, Giles & al. vs. Edwards. - 1 Selw. N. P. 88. 5 East 449, Hunt vs. Silk. - 1 New. Rep. 351, Cook vs. Munstone.