Majority
p. 561Tinslar vs. May. ALBANY, Jan. 1832.
Headnote
Assumpsit for money had and received was held to lie where, on a settlement and delivering up of a bond and mortgage, the obligor by mistake cred. ited with a year’s interest, which had not been paid.This was an action of assumpsit, tried at the Rensselaer circuit in June, 1830, before the Hon. James Vanderpoel., one of the circuit judges.
The declaration contained the common money counts. The plaintiff proved that in the settlement of a bond and mortgage which he held against the defendant, the defendant was credited by mistake with $136,32, the interest of the principal sum due the plaintiff for the year ending on the 1st April, 1825; that the settlement took place on the 2d April, 1830, when the sum of $1448,61 was paid to the plaintiff, and the bond and mortgage assigned by the plaintiff to a brother of the defendant, at the request of the defendant. The plaintiff claimed to recover the above sum credited by mistake. The defendant objected that the plaintiff could not recover as for money had and received; that he should have declared either specially or upon the original consideration, and if the bond and mortgage were cancelled, he should have resorted to a court of equity; which objection was overruled, and the plaintiff had a verdict for the amount of the sum credited by mistake, with the interest thereof. The defendant moved for a new, trial.
J. L. Wendell, for the defendant.
The action for money had and received will not lie unless money or money’s worth has been actually received, as where property has come to the posses- - sion of the defendant, from which a presumption may be raised that money has been received. 5 Burr. 2589. 11 Johns. R. 464. 2 Starkie’s Ev. 106. Here there is no pretence that either money or property was actually received. Nothing was received; if the fact is as alleged by the plaintiff, the bond is not paid, and the remedy of the plaintiff is by action of debt on the bond; and if any embarrassment arises from the transfer of the bond to the defendant’s brother, the remedy is in equity.
p. 562
H. P. Hunt, for the plaintiff.
Assumpsit being an equitajqe ac(jori) may be maintained for any thing that has been treated by the parties as money;; the defendant here had the benefit of the mistake, and it was counted to him as money. 8 Cowen, 195. 1 Wendell, 355. 3 id. 412. 4 id. 360. 6 Cowen, 465. 7 id. 662. 2 Wendell, 481.
I think the motion for a new trial should be denied. The action for money had and received will lie.. The mistake was equivalent to so much money to the defendant; he had a credit to that amount, to which he was not entitled. The jury have found the fact of mistake, and there can be no doubt that ex aequo et bono the defendant ought to refund to the plaintiff.
New trial denied.