Clark v. Jenness

Knowlton, C. J. One Clapp, who was the owner of premises occupied by the plaintiff as tenant, brought an action against her and attached her furniture to recover arrears of rent. The defendant told her that he had seen Clapp and could settle the suit for $50, but that Clapp also insisted upon the rent, amounting to $25, for the week ending about March 1, 1901,' after which time he, the defendant, had arranged to hire the house of Clapp, and the plaintiff could thereafter pay rent to him at $25 per week, as his tenant. The plaintiff said that this arrangement would be satisfactory, and she thereupon paid him $25 in cash, and gave back to him two receipts to the amount of $50 for money which she previously had paid him on a mortgage [299] debt which he held against her, it being agreed that these receipts should be treated as money, and that the money previously paid should not be applied as originally intended in reduction of the mortgage. The evidence tended to show that the defendant did not pay Clapp any money, nor settle the action which he had against the plaintiff, nor make any attempt to settle it. The judge rightly refused the defendant’s requests for rulings, and properly submitted the case to the jury. He instructed them that “ If the parties agreed to treat the surrender of the receipts as a money transaction and consider it a payment of money, the plaintiff could recover the fifty dollars in this action.” This was in accordance with the authorities. Randall v. Rich, 11 Mass. 494. Arms v. Ashley, 4 Pick. 71. Emerson v. Baylies, 19 Pick. 55. Perry v. Swasey, 12 Cush. 36. The evidence well warranted a finding that there was $25 due to Clapp for rent for the week ending March 1, 1901. If the defendant received this sum to be paid to Clapp for this rent and did not pay it, he is liable for it in an action for money had and received. The jury might have disbelieved the defendant’s testimony that he hired the premises from Clapp on or about February 22, 1901, and even if it were true, it would not necessarily be a defence to this action. Exceptions overruled.