Wilson v. . Lee

CoNNOR, J. This is an action for money had and received. Although an action at law, it is governed by equitable principles. The plaintiff in the action waives all torts, trespasses, and damages. The action may, in general, be maintained whenever the defendant has money in his hands which belongs to the plaintiff, and which in equity and good conscience he ought to pay to the plaintiff. 41 C. J., 28. The plaintiff is entitled to recover when it appears that the money in question belonged to the plaintiff and was secured by the defendant without the consent of the plaintiff, or if with his consent, without consideration. 41 C. J., 42. The evidence for the plaintiff in the instant casé tended -to show that on 14 October, 1931, the plaintiff paid to the defendants the sum of $246.00, in performance of his agreement with the defendants on 5 October, 1931, which was subsequently modified only with respect to the amount which should be paid by the plaintiff to the defendants, in cash, and that the defendants, without the knowledge of the plaintiff, had failed to perform their agreement with the plaintiff, and that for this reason the plaintiff received no consideration for the sum of $246.00, which he paid to the defendants. If the jury had found the facts to be as the evidence for the plaintiff tended to show, the plaintiff is entitled to recover of the defendants the sum of $246.00, with interest from 14 October, 1931. There is error in the judgment dismissing the action as of nonsuit. *437 In Tomlinson v. Bennett, 145 N. C., 279, 59 S. E., 37, it is said: “The only cause of action stated in the complaint is for money had and received to plaintiff’s use. If the plaintiff, in part performance of an executory contract, paid the money and delivered the horse, and, for any reason, for which he was not responsible, the contract was not executed, he would be entitled to recover the money upon an implied promise to repay it, and the value of the horse as for a conversion. The law will imply a promise to repay money received, when there is a total failure of the consideration upon which it was paid. It would be against good conscience and equity to retain it. This is the principle upon which the action is based.” Applying this principle to the facts which the evidence for the plaintiff tends to show, we reverse the judgment in this action and remand the action to the Superior Court of Sampson County for a new trial. Eeversed.