Wheeler v. Board — 12 Johns. 363

Majority

p. 363

Wheeler & Bracket against Board.

Headnote

Money pais account or -set-vices to be performed, mayim =ose °f "on-money-'tad ana

shówVneñorm|?eement!oñws putoW^Vust performance."1"

THIS was an action of assumpsit on a special agreement to carry salt from Salina to Olean, and for money had and receiv_ J . . ed; an inquest was taken by default at the Onondaga circuit, and a verdict for the plaintiffs for 57 dollars and 44 cents, to the opinion of the court on the following case :

The plaintiffs produced, and proved a receipt, signed by the defendant, for six barrels of salt, received of the plaintiffs at Salina, to be carried to Olean, at 5 dollars and 50 cents per barrel; the carriage to he paid for in advance. The receipt was not dated, but the salt was proved, by a witness, to have been delivered to the defendant about the ‘ 16th of February, 1814; and that, about the 28th of the same month,, (being a reasonable time thereafter, for the conveyance and delivery of the salt, at Olean,) salt was worth, at Olean, 10 dollars a barrel. The witness also stated, that he was at Olean the latter part of Februaryand first part of March, on business for the plaintiffs, ■and that he did not know- of the defendant having delivered

p. 364

any salt at that place. The plaintiffs produced-, and proved^ another recéipt, signed by the defendant, dated the . 18th of February, 1814, for 37 dollars, received on account of forwarding salt. The same witness further testified, that in the tatter part of February, 1814, he saw the defendant, who then told him, that he had lately received money of the plaintiffs for forwarding salt from Olean to Pittsburgh, which he had not done, and the tvitness did not know whether it had ever been done or not. The plaintiffs also produced, and proved, another receipt, for 15 dollars, signed by the defendant, and dated the22d of February, 1814, the money to be repaid to the plaintiffs, or the amount thereof in flour, at Olean, in twelve days.

The plaintiffs claimed the amount of the salt, at the Olean price, with interest, after the time when it ought to have been delivered ; and the amount of the two cash receipts, with interest on the first, after the 1st of March, 1814, and on the latter,, after it became due.

The judge was of opinion, that the plaintiffs were bound to show further, and more fully, the failure of the defendant to perform his agreements, as specified in the several receipts abov,é mentioned, but permitted the plaintiffs to take the verdict as above stated, which was for the amount of the two last receipts, with interest.

The casé was submitted to the court without argument.

Per Curiam.

The plaintiffs were entitled (under the count for money had and received) to recover the amount of the receipt for 37 dollars, received by the defendant on account of forwarding salt, with interest. The evidence was sufficient to warrant the jury in presuming, that he received that money for forwarding salt from Olean to Pittsburgh and that he had not performed that service. The consideration had, therefore, .failed. |

The third receipt was c< for 15 dollars, to be repaid to the plaintiffs, or the amount thereof, in flour, at Olean, in twelve days.’5

There is no special count on this agreement; nor is there any proof of non-performance. The plaintiff is not entitled to recover the 15-dolIars in the action for money had and received;

p. 365

for it does not appear but that the flour was delivered at Olean ; and the defendant was not bound to show that in this action.

The defendant had a right, at his option,, to repay the 15 dollars, or to deliver flour equivalent, at Olean, in twelve days; and, certainly, the plaintiff cannot recover the money back, upon merely proving the execution of the receipt* The verdict, instead of 57 dollars and 44 cents, ought to have been for .37 dollars, with interest, from the 1st of February, 1814.

New trial granted, with costs to abide the event of the suit.