Cochran v. Carrington — 25 Wend. 409

Majority

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Cochran vs. Carrington and Prall.

Headnote

A tenant in common may maintain assumpsit against his co-tenant, to recover his share of a gross sum received by the latter, for the use or hire of property field in tenancy in common ; it is not necessary in such case that he should resort to the action of account, or to a bill in equity.

Assumpsit by a tenant in common against his co-tenants. The parties in this case were joint owners of a schooner navigating Lake Ontario. The defendants, in 1839, chartered the vessel to a third person for §1100, and received most of the money. The plaintiff brought assumpsit against them for money had and received, to recover his moiety, the cause was heard by referees; and after the proofs were closed, the counsel for the defendants objected that an action for money had and received would not lie, the remedy of the plaintiff being by an action of account or bill in equity. The referees sustained the objection; and on that ground, *made a report in favor of the defendants. The plaintiff moves to [ *410 ] set aside the report.

W. Duer & L. Babcock, for the plaintiff.

A. P. Grant & W. F. Allen, for the defendants.

By the Court,

The only question in this case, is, whether a remedy exists at law. It is contended that the plaintiff must resort to the action of account, or bill in equity, to recover the money claimed by him.

It 'has been frequently held in this court, that on a sale of a chattel by the joint owner, and receipt of the money, the co-tenant may recover his moiety in the action for money had and received. 2 Caines, 166 ; 15 Johns. R. 159; Wheat. Selw. 79. The principle, I think, may well govern the present case. The one is the sale of the whole interest in the chattel, the other a virtual sale of the interest for a year: if the remedy be appropriate in the one ease, it seems equally so in the other. The doctrine has been repeatedly applied in Massachusetts, 9 Mass. R. 538 ; 3 Pick. 420 ; Wheat. Selw. 79, and comes fairly within the reason and principle upon which this action is founded. The money claimed is the money of tho plaintiff: it was received by the defendants for the use of his property, and in honesty and conscience should be paid over.

In the case of partnership dealings, Lord Ellenborough said, in Robson v. Curtis, 1 Stark. R. 63, that if only one item remained unadjusted, the difficulty as to partnership would disappear.

The action of account, as well as the proceeding by bill in chancery, is

p. 314

dilatory and expensive ; and though appropriate and necessary in complicated accounts between partners and tenants in common, the reason for a resort to one or the other of these remedies does not exist here. The item in dispute can be readily adjusted in the action of assumpist. The motion to set aside the report of the referees should be granted.

Ordered accordingly.