Freer v. . Denton

Earl, C. The plaintiff did not prove the frauds alleged in the complaint, and no question of fraud was submitted to the jury. If, therefore, this was, under the complaint, necessarily an action of fraud, the plaintiff- should have been defeated. Upon the facts stated in the complaint, the plaintiff could recover the money paid by him upon either one of two theories: (1) He could avoid and repudiate the contract on the ground of the fraud alleged, and recover back the money, because it had been obtained from him by fraud, and the defendant had no right to retain it; or (2), he could rescind the contract, because the defendant refused to perform and repudiated the same, and thus held his money without any. consideration therefor. Upon either theory the action is based upon the promise to pay back the money implied by law (Byxbie v. Wood, 24 N. Y., 607), and is one, therefore, upon contract. An action for money had and received lies, in all cases, where one has had and received money belonging to another without any valuable consideration given on the receiver’s part, for the law construes this to be money had and received tor the use of the owner only, and implies that the person so receiving promised and undertook to account for it to the true owner; and in case a defendant be under an obligation, from the ties of natural justice, to.refund money, the law implies a debt, and gives this action founded on the equity of the plaintiffs’ case. (3 Bl. Com., 163; Cobb v. Dows, 10 N. Y., 335; Moses v. Macferlan, 2 Burr., 1005.) No error was, therefore, com-. *496 mitted at the Circuit in the holding that the plaintiff was not bound to prove his allegations of fraud. The-facts stated in the complaint showed two causes of action, one to recover back the money paid, because the defendant refused to perform and -repudiated the contract, and this was made out without proof of any fraud: and another to recover back the money paid, on the ground that it was obtained from the plaintiff by fraud. These two causes of action could be united in the same complaint, but should have been separately stated. No • objection was, however, made that they were not thus stated, and such an objection could only be made by motion. (Bass v. Comstock, 38 N. Y., 21.) The only other question to be considered is, whether the action could properly be commenced before the 1st day of April, 1840. It is the settled law of England that if, before the time appointed for performance of a contract, one party gives notice to the other that he will not perform the same, and repudiates the same, the other party may treat the contract as broken, and at once commence an action to recover his damages as for a breach thereof. (Hockster v. Delatour, 2 E. & B., 648; Danube and Black Sea Co. v. Xenos, 13 C. B. [N. S.], 825; Frost v. Knight, 44 Law Reports, 111.) And this doctrine, while it may not be regarded as settled, has received some countenance in this State. (Burtis v. Thompson, 42 N. Y., 246.) But it is not necessary to invoke this doctrine to uphold the judgment in this case. The contract provides for the payment of $800, “ on or before the 1st day of July, 1869, and the balance on or before the 1st day of April, 1840,” and that the party of the first part, on receiving payment “ at the time and in the manner ” mentioned, would execute the conveyance. The plaintiff had, therefore, the right to make the payment, and demand the deed before the first day of April, and thus fix the time of performance by defendant before that date. The plaintiff having shown his readiness and offer to perform, and a refusal by. the defendant to perform, in March, *497 before the commencement of this action, had the undoubted right to commence this action before the first day of April, for a breach of the contract, or to recover back the money paid by him. I am, therefore, of opinion that the judgment should be affirmed, with costs. Reynolds and Dwight, CC., concur. Lott, Ch. C., and Gray, C., dissent. Judgment affirmed.