Tainter v. Winter

Danforth, J. By the Act of Feb. 12, 1824, c. 254, § 2, the trustees of the Ministerial and School Fund are constituted and declared to be a body corporate. By the same section, it is made their duty, each year, to choose a treasurer. The note in suit is made payable to such treasurer [350] or bis successor in office. The note is, and always has been the property of the trustees, and the plaintiff is the legal successor of, the payee. Under these circumstances the action may be maintained in the name of the present plaintiff or in that of the corporation. Fisher v. Ellis, 3 Pick., 325; Bank v. French, 21 Pick., 491. It is true, the note introduced in evidence varies somewhat from the one described in the writ, still it is sufficient to maintain the action under the count for money had and received. The only other question relates to the effect of the payment indorsed March 16, 1844. Was this made by the defendant so as to avoid the statute of limitations ? That the money was paid by him there can be no doubt. That the indorsement was made, as it now appears, at his request, would seem to be satisfactorily proved. He, then, made the payment for himself, and not in behalf of any other person. This fact remains the same and its effect is unchanged whether the money belonged to himself or another. So far as the plaintiff is concerned, it is just as much a payment by the defendant whether he appropriated the money for this purpose rightfully or wrongfully. He certainly did appropriate the money to his own use, both by his act and his request, thus renewing his contract; and now, after the plaintiff has rightfully relied upon his act so long that all other remedy has gone, it is too late for him to repudiate it and say it was done for another. Howe v. Saunders, 38 Maine, 350; Holmes v. Durell, 51 Maine, 201. If, at the time, he had given notice and made the payment in behalf of Gray, a different question would have been presented. Defendant defaulted. Appleton, C. J., Kent, Walton, Barrows and Tapley, JJ., concurred.