Deysher v. Triebel

The opinion of the court was delivered, by Sharswood, J. — This was an action of assumpsit, in which the plaintiff filed a statement for goods sold and delivered, to wit: “26,475 shingles (consigned to said defendant from Jersey Shore, Penna., on the 7th of July, and received by him at Reading on the 13th of said month, 1868), at the sum of $12.50 per M., amounting to $330.94 at 60 days after date.” The plea was non assumpsit. The only assignment of error is, that the court erred in the rejection of the offer of evidence by the defendant as set forth in the bill of exceptions. There was evidence that a car-load of shingles had been shipped by Triebel not to Deysher but to Keely, to whom he was under a contract to furnish such goods. By some mistake, whose does not appear, the car was marked in chalk with the name of Deysher, and the shingles were received by him. There was certainly no express contract of sale shown or even pretended between Triebel and Deysher; yet, under these bare circumstances, without explanation, such a contract might perhaps have been implied. There would be some reason and authority for so holding. If a coal merchant, by the mistake of his driver, empties a ton at my door, and I take it in without inquiry or objection and consume it, knowing that it must have been sent to me by mistake, it may be that a recovery could be had in assumpsit under a count for goods sold and delivered upon an implied promise to pay the market price. “In many cases,” says Mr. Leigh, “ where the defendant has received goods wrongfully, a contract for the purchase will be inferred, and the plaintiff may waive the tort and recover the amount in an action for goods sold and delivered:” 1 Leigh’s Nisi Prius 91; 1 Stephen’s Nisi Prius 286. Thus in Biddle v. Levy, 1 Starkie 20, where goods were supplied to a minor upon a fraudulent representation by his father that he was about to relinquish his business in favor of his son, although the credit was given to the son, yet as the father dealt with the proceeds, he was held to be responsible in assumpsit for goods sold and delivered. [386] In Hill v. Perrott, 3 Taunt. 274, it was decided that recovery could be had on such a count alone for goods which the defendant had by fraud procured the plaintiff to sell to an insolvent, and which he had gotten into his own possession. And in Studdy v. Sanders, 5 B. & C. 628, where the vendor of cider-juice to be made on his premises, lent casks to the vendee for the purpose, which were seized through the vendee’s fault for a breach of the excise laws, it was held that the vendor might recover the price of the casks as for goods sold. But on the other hand, it is well settled that where there has been no fraud or unfair dealing, or other circumstances from which an implication may arise under such a count, a recovery cannot be had of the value of specific articles in the possession of the defendant claimed by the plaintiff as his property: Willet v. Willet, 3 Watts 277; Gray v. Griffith, 10 Id. 431. In the case before put of the ton of coal, if in point of fact I had purchased and paid for such a load from a different coal merchant, and innocently received and consumed it under that mistake, I cannot be made to pay for it to a man from whom I had not ordered it, at least not under a count for goods sold and delivered. It is not necessary to inquire how such a case would stand in an action of replevin or trover. Where, indeed, a person tortiously in possession of the goods of another, converts them into money or securities equivalent to money, assumpsit for money had and received may be maintained against him for the amount so received. But it is to be remarked, that the count for money had and received has always been looked upon as governed by equitable principles, and it lies only where the defendant ought ex ceguo et bono, to refund the money which he has received; for where there has been no deceit or unfair practice, and he may with' a good conscience retain it, he cannot in this form of action be compelled to pay it back, even where he could not at law have recovered it originally: Morris v. Tarrin, 1 Dall. 148 ; Bogart v. Nevins, 6 S. & R. 369; Irvine v. Hanlon, 10 Id. 219; Espy v. Allison, 9 Watts 462; Mann’s Appeal, 1 Barr 24; Hinkle v. Eichelberger, 2 Id. 483. The application of these principles to the question of the competency and relevancy of the evidence offered by the defendant and rejected, is plain. That offer was in substance to show that he had a contract with Karstetter & Co. to furnish him shingles, and that the car-load shipped by Triebel was received by him innocently, under the mistaken belief that- it had been consigned to him by Karstetter & Co., and that without any notice that the shingles were owned or claimed by any other person, he had settled with and paid Karstetter & Co. for them. Had the offer been sustained by corresponding proof, it would have established beyond all question that Triebel could not recover under a count for goods sold and delivered. It would have answered any [387] possible pretence that Deysher was under an implied contract to pay Triebel the price of the goods. It is not necessary to say how it would have been if there had been a count for money had and received. No evidence was given that any money had been received for the shingles by Deysher. Nor is it material that no objection was made to the form of the pleadings. It did not devolve on the defendant to make any such point at the time he made the offer. What he was called on to meet was the plaintiffs claim in the statement filed. Had the evidence been received, and the case submitted to the jury on the merits, there would be some reason for holding that it would he too late to raise here any technical objection to the plaintiff’s recovery not taken in the court below, inasmuch as the pleadings might have been amended, and Deysher shown to have actually converted the shingles into money, or its equivalent. The rejection of the defendant’s offer left him before the jury upon evidence unexplained, from which they might have inferred that he had received the goods with no reason to think that he had any right to them, that he must have known that they had been sent to him by mistake, that he had not paid for them, and that there was raised thereby an implied promise to pay the plaintiff for them at the market price. Judgment reversed, and venire facias de novo awarded.