Weston v. Barker

12 Johns. 276

Opinions

Thompson, Ch, J.,

delivered the opinion of the court. The principal question in this casé, is, whether an action for money: had and received,; can be sustained by the present plaintiff. It was not denied on the argument by the defendant’s counsel, but that the action would be supported, if ati express promise to pay proved; and, indeed, this principle is too well settled- to be questioned. It has been repeatedly recognised in this court. [7 Johns. Rep. 103. 8 Johns. Rep. 149.] It appears to me that the : proof in this cáse, establishes such a promise,' according to the good sense, and sound interpretation of the rule. That the defend ant has actually received the money, is admitted, and the plaintiff’s claim to it is supported by the strongest principles of justice and equity, as will appear from a bare statement of the case.

Bowen <§* Robins, on the 4th of March, 1811, assigned to the defendant two policies of insurance, in trust, to discharge certain specified debts, and the balance to be held subject, to their order. The defendant, on the same day, signified, in-writing, his acceptance of the trust; and expressly engaged to comply with the conditions mentioned in the letter, which declared the trust; viz. to pay the specified debts, and hold the balance, subject to the order of Bowen 8r Robins. On the 15th of the same month, Bowen 8c Robins being indebted1 to the plain-tiff, gave him an order on the defendant for such balance, of which notice was about the same time given to the defendant. The defendant, afterwards, received the amount due on the policies, and after paying the demands specified in the declaration of trust, held in his hands a balance of 647 dollars, 38 cents, which is the sum, together with the interest, for which this suit is brought.

This brief statement of facts, would seem sufficient to show the plaintiff’s right to recover. The money has, in fact, been received by the defendant; and, according to the very terms of his engagement, was received as the money of the plaintiff, and not of Bowen S' Robins, they having previously directed the same to be paid to the plaintiff. If A. deliver money to B., to be paid over to C., the latter may recover it of B., in an action for money had and received. (1 Bos. & Pul. 296.) It is immaterial, in the case before us, whether the money was actually paid by Bowen <§• Robins to the defendant, or whether it came into his hands from any other quarter, by their order. When it was received, it was received as the money of the plaintiff; and so, in the most strict and literal sense, it was money received to the plaintiff’s use. It was considered on the argument, that had the plaintiff been named in the declaration of trust, as one of the persons to be paid out of the monies received on,the policies, he could maintain this action. And where, in good sense and sound principle, can be the difference, whether he was originally named, or afterwards designated, according to the terms of the defendant’s undertaking? His express promise was to hold the balance, subject to the order of Bowen 8c Robins.. As soon as sack order Was given, this promise attached1 and enured to' benefit of the person named iti such order. It is undoubtedly a Well-settled role of the common law, that dioses in action aré' nbt assignable ; and, therefore, when a perSoff entitled to money due from another, assigns over hiS interest in it to a third person, thé mere act 'of assignment does not" entitle "the assignee to maintain an action for it: btit if there be an assent or promise on the part Of the debtor of holder of the money, the for money had and received has been hotden to lie.

What Will5 amount to such assent or promise, so as to make the holder of the money liable, will be better Seen by a refer-to some of the adjudged cases on this subject. In Ward v. Evans, (2 Ld. Raym. 928.) one Fellows, having money inuii* hands of the defendant, gave a verbal order to pay a certain sum to the plaintiff, and to endorse it upon a note, which he, Fclloivs, held against the defendant, and this endorsement was accordingly made; this was held sufficient to maintain the action, for money had and1 received to the use. of Ward, the plaintiff. Holt, Gh. J., said,, when the money was endorsed on Fellows' bill, and Fellows directing that sum to be paid to the plaintiffs and the defendant having the money in his hands, it amounted to a receipt of so much money by the defendant to the plaintiff’s use. So,- also, ini Israel v. Douglass and another, (1 H. Bl. Rep. 239.) The defendants being indebted to one Delvalle, he dreW an order on them, in favour of the plaintiff) who had* advanced money to Delvalle; the defendants áccépted the order, and they were held responsible in an action for money had and received. Lord Loughborough, in answer to the argument, that the money was, in point of fact, owing by the defendants to Delvalle, and that their undertaking was to him, and- that no money was in reality had apd received by them to the use of the " plaintiff, says, the debt, with the consent of the parties, Was assigned to the plaintiff, of which the defendants had notice, and assented to it; by which asséñt they became liable to the plain-' tiff for money had and received. Had the defendant, in the' case before us, directly accepted the order drawn on him, if would fall precisely within the case last cited. But as I have' before observed, this could in principle make no difference, for1 the express promise of the defendant was, in substancé, to pay over the money to whomsoever Bowen 8r Robins should appoint' to receive it*. And this appointment was made certain by the. subsequent designation in the order. That this was sufficient is established by the case of Fenner v. Meares, (2 Black. Rep. 1269.) received, would lie by an assignee of a respondentia bond, where the obligor, by an endorsement thereon, promised to pay the same to such assignee as the obligor should duly appoint•. Here the promise was not made to any person in particular, but, generally, to whomsoever the obligee should appoint. It is true, that the authority of the two last cases has been questioned by later decisions in the English courts. (1 East, 104. 3 East, 171.) The reasons and principles,, however, upon which they were founded, have not been shaken, but, on the contrary, sanctioned by this court, as will be seen by the case of Neilson v. Blight, (1 Johns. Cas. 205.) which was an action of assumpsit, for money had and received. From an examination of the facts in that case, it appears that there was no express promise made by the defendant to the plaintiff. Radcliff, J. after stating the leading facts in the case, observes, that there was a trust created in Raddon, for the benefit of the plaintiff, which the plaintiff had a right to affirm and avail himself of, and that this trust was transferred to the defendant, who became equally responsible with Raddon, by receiving the wines bn the same terms; that there was an implied assumpsit in law, the fund, being in the defendants hands, and received by himfor the benefit of the plaintiff. He laid it down as a maxim, that where a trust is created for the benefit of a person, though without his. knowledge at the time, he may affirm the trust, and enforce its execution. And Kent, J., said, from these facts, the law will in* fer a promise by the defendant to pay the money, because, in justice and good faith, he was bound so to do. From that case, it is clear that no express promise is necessary, in order to make a party responsible in this form of action. But in the case before us, I think I have shown that there was what must be deemed equivalent to an express promise; and as soon as the money came into the defendant’s hands, he became bound to pay it over to the plaintiff, according to the principle which governed the decision in M'Menomy & Townsend v. Ferrers, (3 Johns. Rep. 82.) It was there held that indebitatus assumpsit for money had and

There is no ground upon which the set-off can be allowed; that is a claim against Bowen & Robins, with which the plaintiff has no concern. Nor can the .defendant complain of any hardship in the case; for he held this note against Bowen <§• Robins, when he accepted the trust, and engaged to pay the money now in question to their order. This shows, conclusively, that he did not look in any manner to this fund as security, but trusted to the personal responsibility of the drawers and endorsers for payment.

The opinion of the court accordingly is, that the plaintiff is entitled to judgment.