Field v. Banks

Holmes, C. J. Of course damages for breach of a bond cannot be recovered under a count for money had and received. The most favorable view for the plaintiff is, that if the jury accepted the defendant’s evidence, he was allowed to recover as upon a failure of the consideration upon which the money was paid. But if, as the defendant contended, the money sought to be recovered was paid in consideration of the defendant’s giving the plaintiff a bond conditioned for the plaintiff’s support, the contract was performed when the bond was delivered. Delivery of the specialty satisfied the preliminary agreement as fully as the delivery of a barrel of flour would have if that kad been the object agreed upon. Wiseman v. Lyman, 7 Mass. 286, 290. Performance of the condition of the bond was left to be secured by the bond, and was no part of the consideration of the original bargain. A motion is made for leave to apply to the judge who tried the case for an amendment of the bill of exceptions for the purpose of making it clear that there was no surprise, that the case was fully tried, and that the plaintiff ought to be allowed to save his verdict by amending his pleadings. We think that this 39 motion comes too late, and that all that could be hoped for sufficiently appears on the bill of exceptions as it stands. The point on the pleadings was taken, and the. judge could not certify that the defendant did not rely upon his proposition of law to some extent, and go into evidence less fully than he would have done in a suit upon the bond. Exceptions sustained.