Seavey v. Dana

Allen, J. The action for money had and received can be maintained against the defendant, if he received the note as money or its equivalent, or if he received the proceeds of the note. Lord v. Staples, 23 N. H. 448, 457; Matthewson v. Eureka Powder Works, 44 N. H. 289, 291, 292; Ainslie v. Wilson, 7 Cow. 668. The defendant having received the note from the bailee of the plaintiff *340 without his consent, an action of trover against the defendant accrued to the plaintiff, and the defendant having given up the note, and received or authorized payment, the plaintiff could waive the tort, and maintain assumpsit for money had and received. Mann v. Locke, 11 N. H. 248; Smith v. Smith, 43 N. H. 536. The agreement of the plaintiff, that the proceeds of the note might be deposited in the bank to await the result of legal proceedings, or mutual arbitration to determine the rights of the parties, was not an agreement not to sue, nor a release of any right of action. The decision of a court of law provided for in the agreement could not be obtained without a suit, and the insertion of that provision in the agreement must be construed to mean that legal proceedings were contemplated. No reason appears why the rights of the parties in the note and the deposit are not determined by a trial of this case and judgment. The defendant having submitted the case on the facts which the plaintiff offered to prove, the exceptions are overruled, and there must be Judgment on the verdict. Stanley, J., did not sit: the others concurred.