Kellam v. Kellam

Mr. Justice Mercur delivered the opinion of the court, This was an action of assumpsit. The facts alleged by the defendant in error, and found by the jury, are substantially these. • An execution had issued against him, and his personal property was liable to be sold at sheriff’s sale. Being about to leave home •he and the plaintiff in error entered into an agreement that the latter should bid off the property, and return it to Peter on being paid the amount he should bid for it, and for his trouble. In pursuance of this agreement William did bid off most of the property sold: but afterwards, for his own use and benefit, sold, disposed of and consumed the same; denied the agreement and refused to account for the proceeds thereof. The evidence of the alleged agreement was amply sufficient to submit to the jury. Peter swore to it in express and positive terms. His testimony was corroborated by evidence of the declarations of William before the sale, and at the time thereof. Thus Simpson testified that on the day first appointed for the sale, he started to attend it, with a view of buying some of the property. On the way he met William who told him the sale was postponed. Witness stated to him his purpose in going to the sale. William replied he was going to bid off the property for Peter, and did not think it would be of any use for witness to go. In consequence of this he did not attend'the adjourned sale. Legg testified that he went to the sale for the purpose of buying a span of horses. When he and Miller reached there some one stated that an arrangement had been made by which William Kellam was to bid in the property for his brother Peter. “ Miller asked William if it was the case that he was going to bid it in for Peter. He said it was.” Braman testified that he went to the sale to buy a cow; but William told him not to bid on the cows, that he was bidding them in for Peter; and this stopped his bidding on them. William’s intention to keep whatever he should bid off and return it to Peter when he came home, is further shown by the testimony of A. C. Kellam. It is true, much of this evidence was contradicted [229] by William and his witnesses; but, nevertheless, it was for the jury to pass upon. The fact is, William did bid off most of the property, and at less than its value. The declaration contained all the common counts, and also a special count “ for the value and price of property which the defendant bid in at sheriff’s sale as the property of the plaintiff, for the use and benefit of the plaintiff, the same, under an arrangement and agreement with plaintiff, being held for the plaintiff; but which the defendant sold and appropriated to his own use contrary to the understanding and agreement between the parties.” It may be conceded that this count is not drawn according to the most approved form of pleading, yet it was not demurred to, nor was any objection made to the admission of any of the evidence. If then the evidence showed a sufficient consideration to support the agreement of William, the omission to state it specifically in the declaration, was not fatal to the right of Peter to recover. Before this suit was commenced William had disposed of or consumed substantially all of the property which he had purchased. So far as we are able to discover, one set of sleighs is all that remained. He had undoubtedly sold and converted property of much greater value than the amount which he had bid, and a just compensation for his trouble. He had thus put it out of his power to restore the identical property. This suit was not to enforce specific performance of the contract; but to recover damages for a breach thereof, and for money had and received. It was not necessary to prove the precise sum of money that William had received to sustain the action, or. to fix the measure of damages. Having disposed of much of the property for which he rendered no account, he is presumed to have received a sum of money equal to its value, and money had and received will lie therefor: Gray v. Griffith, 10 Watts 431; Bethlehem Borough v. Perseverance Fire Co., 31 P. F. Smith 445. In the second and third points submitted by the plaintiff in error, the court was requested to charge there could not be a recovery on the special count unless the property was bid in by him under an express agreement to do so, and if he did so agree, yet, if Peter furnished no money for that purpose, and he, William, bought with his own money, the agreement was nudum factum and void; and that the count could not be sustained or helped by evidence that he dissuaded persons from bidding at the sheriff’s sale. The court substantially affirmed these points, unless the jury also found that he made use of artifice in dissuading persons present from bidding at the sale on the ground of his agreement, purchased the property much below its value, and then refused to return the property to Peter when so requested. Thus the defendant in error was denied the right to recover on the contract alone; but was required to establish the artifice and mala fide of William in making the pur [230] chase. The verdict of the jury has established both the contract and the bad faith. It is contended by counsel for plaintiff in error, that inasmuch as there is no averment in the declaration of any fact which would make him a trustee ex maleficio, and Peter advanced no money, the agreement M as of no binding force. In support of this view, reference is made to Barnet v. Dougherty, 8 Casey 371; Dollar Savings Bank v. Bennett, 26 P. F. Smith 402; Carhart’s Appeal, 28 Id. 100. In all these cases the question was as to the evidence necessary, under the Statute of Erauds,.to establish a resulting trust in lands. It was held that such a trust could be raised only from fraud in obtaining the title or from payment of the purchase-money when the title was acquired. Inasmuch as the Statute of Erauds applies only to an interest in lands, and a promise to pay the debt of another, the decisions thereon do not apply to the present case. This being a contract about personal property only, its vitality is not destroyed by the fact that Peter did not furnish any money with which to buy the property at sheriff’s sale. It follows that the answer of the court was more favorable to the plaintiff' in error than he was entitled to receive. Instead of permitting Peter to recover on the contract upon satisfactory proof of a consideration to support it, he nras required to also establish subsequent acts of had faith of "William sufficient to make him a trustee ex maleficio. The evidence of his acts and declarations at the sale tended to establish an agreement to bid in the property for Peter’s benefit. As he thus acquired it at much less than its value and afterwards denied the agreement, it was evidence of his bad faith in the purchase. The publicity, given at the sale, of William’s purpose to bid in the property for his brother, very reasonably and naturally operated to dissuade others from bidding on any article that he manifested a desire to purchase, and the court was justified in leaving to the jury so to find. The defendant in error was not permitted to recover damages for William’s omission to bid off any property, but for that only which he did buy. The fourth assignment relates to an action in which a third person was a party, and the offer fails to show the grounds on which it was decided, hence there was no error in the answer of the court relating thereto. We discover nothing in the record of which the plaintiff in error has a right to complain. ‘ Judgment "affirmed.