Chapman v. Cole

Metcalf, J. The property in the gold piece never passed from the plaintiffs to Furbush; the possession thereof having passed from them to him by mistake. The plaintiffs intended' to pay to him fifty cents in money, and he intended to receive from them that sum in money ; and both parties supposed that what they intended to do had been done. By a mistake of both parties, a chattel worth ten dollars, but supposed to be half a dollar in moiiey, was delivered by the plaintiffs, and received by Furbush, as half a dollar, in payment of that sum. There was a mistake as to the identity of the subject of the agreement; and in such case there is no assent of the parties, and no binding transaction. As Furbush acquired no property in the gold piece, he could convey none to the defendant. The plaintiffs may therefore well maintain an action, in this form, against the defendant. The defendant, by receiving the plaintiffs’ gold piece of Fur-bush, and claiming it as his own, was guilty of a conversion of it, and the present action might have been maintained without a previous demand on him for it. Stanley v. Gaylord, 1 Cush. 536. And if this were not so, yet as a demand was made on him for it, and he refused to deliver it, when it was in his power forthwith to do so, there is sufficient evidence of conversion, in the absence of any fact tending to rebut or control that evidence. If the gold piece had been an eagle of American money, passed by mistake for a half dollar piece to Furbush, and by him to the defendant, we do not suppose that this action could [143] have been maintained. The plaintiffs’ remedy would have-been against Furbush, in an action of contract for $9.50 money had and received. See Bretton v. Barnet, Owen, 86. " It would be mischievous,” says Chief Justice Parker, “to require of persons, who receive money in the way of business, or in payment of debts, to look into the authority of him from whom they receive it.” Mason v. Waite, 17 Mass. 563. Even when money is stolen, and is passed by the thief, it becomes the property of him to whom it is passed for a valuable consideration, and without knowledge that it was stolen. Miller v. Race, 1 Bur. 452. It is otherwise when stolen chattels are sold to an honest buyer. He acquires no title to them, and is liable to the owner in an action of tort. Dame v. Baldwin, 8 Mass. 518. 2 Bl. Com. 449. As this gold piece was not money, the rules of law which apply to other chattels must be applied to it; Judgment for the plaintiffs