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Bentley v. Morse

14 Johns. 468 Court N.Y. Sup. Ct. English

Contents

Majority

p. 472
Bentley against Morse.
NEW-YORK,
October, 1817.

Headnote

Where money, the briD"sanPaction Mmy'aiKl'Te8 theeromissioiohf prod1ifenthenrefence,'a subsetiyTbe ptointüf that if the d<¿ feudant had the receipt, he would refund money, h a morai’oMigation moneyfa¡s íh! oonsidcration. . Where money has been paid, and a receipt taken, and af~
IN ERROR, on certiorari to a justice’s court.
The plaintiff in error had an account, for work, against the defendant in error, which the latter paid, and took the receipt the plaintiff in error, for 24 dollars and 90 cents* In Jvo vember, 1815, the plaintiff in error brought an action against the defendant in error, on his account, and recovered judgment. It did not appear that any defence was made. In December, in the same year, the parties happening to be together, the defendant observed to the plaintiff, that he had paid him a sum of m0nev. and held his receipt for it, (alluding to the receipt above J ’ , . , - . t. . . . , mentioned.) and had been since compelled to pay him a second 7/ . , 7 time; the defendant denied any knowledge of the payment or of giving a receipt, but promised, that if the defendant had such receipt, he would repay him the amount of it. The present aet-(Qn wag founded on that promise ; and the defendant in error, who was plaintiff in the court below, at the trial, produced the receipt in evidence. The defendant below offered the record of the former judgment in evidence, as a bar to the action, but it was overruled, and a verdict and judgment were, rendered for the defendant in error.

In consequence of the omission of the defendant in error, to make a defence in the former action against him, and to produce his receipt to show the payment of the debt, he was forever barred from maintaining an action to recover back the money he had paid; and the question now is, * whether the promise to repay the amount of the money expressed in the receipt is valid in law.

The debt having been paid, the recovery in the former action was clearly unjust; and though, in consequence of his neglect, the defendant in error lost all legal remedy to recover back his money ;[2] yet there was such a moral obligation, on the part of the plaintiff in error, to refund the money, as would be a good consideration to support an assy,mpsit or express pro

p. 473
ihise to pay it. The moral obligation is as strong as any m the cases in which it has been held sufficient to revive a debt barred by statute or sortie positive rule of law. It is like the promise of an infant to pay a debt contracted during his non-age, or of an insolvent dr bankrupt to .pay a debt from which he is discharged fey his certificate,[2]

Judgment affirmed.

(a) (a) Vide. Secuten i). Eislord, 7 Johns. Rep. 36 . Cowp. 544.

Footnotes

  1. (a) (a) Vide Jones v. Scriven, 8 Johns, Rep. 453 . White v. Ward, 9 Johns. Rep. 232 . Marriott v. Hampton, 7 Term. Rep. 269. Looms v. Pulver, 9 Jahns. Rep. 241.