Wales v. Wetmore

3 Day 252

Opinion

By the Court,

unanimously. The only question reserved in this case is, whether, upon the facts alleged in the declaration, an action of assumfisit could be mainta n-ed ? Not, whether an action of account would lie ?

In many cases, the .plqjntiff may have his election; and may seek redress, either by an action of assumfisit, or of account.

If one receives money of another for an express purpose, and fails to apply it, assumfisit will lie.

In this case, the money was received for a right in certain lands in the township of Fairlee, in Vermont, which Mr. Wetmore claimed to have purchased previous to the date of the receipt; yet it is averred, that 1 1 ’ no land had been purchased by him, nor any title offered to Mr. Wales. It appears, that the consideration wholly failed.

If assumpsit would not lie, the defendants might have demurred to the declaration, as the receipt was spread Upon the face of the record.

New trial not to be granted.