Brown v. Sallinger

Braley, J. The plaintiff under the R. L. c. 173, § 6, cl. 6, has declared in contract for money had and received, and in tort for the conversion of the same amount, with an averment that both counts are for one and the same cause of action. No request that the plaintiff be required to elect having been made at the close of the evidence and the finding in her favor having been general, it is contended that the action cannot be maintained on either count. Teague v. Irwin, 134 Mass. 303, 307. The counts are not inconsistent. If the defendant has converted to his own use the money of the plaintiff represented by the bank bills and silver coin delivered to his agent entrusted with the transaction of thé business, trover will lie, as well as the common count for money had and received. Morrin v. Manning, 205 Mass. 205, 211. It is familiar law, that where a case is tried before a judge sitting without a jury his findings of fact, if warranted by the evidence, are conclusive. American Malting Co. v. Souther Brewing Co. 194 Mass. 89. The defendant does not deny that he received the money, and has refused on demand to return it, and on the plaintiff’s testimony when delivered the money was her property. It is asserted, that under the terms of the lease or conditional contract of sale, the money can be retained as liquidated damages, because the contract therein set forth has not been performed on her part. But, even if Cunningham who executed the lease could have been found to have acted as her agent, yet, upon the uncontradicted evidence the defendant, after the plaintiff had selected the articles of wearing apparel which were the subject of the proposed purchase, refused to complete the sale and repudiated the transaction. The goods were never delivered or even tendered, and, there having been no binding contract between the parties, there has been no breach to which the alleged clause of forfeiture can be applied, as in Morrison v. Richardson, 194 Mass. 370, 376, 377. [248] It further is urged, that, as an action for money had and received is in the nature of an equitable remedy, the defendant should be permitted to retain what he received. Cole v. Bates, 186 Mass. 584, 586. The statement of this proposition is enough to show its unsoundness. To permit him to be enriched by that for which he has given no equivalent, and where he has not shown that he suffered any pecuniary loss through any fault of the plaintiff, would be to confer a legal right which the law does not recognize. Devlin v. Houghton, 202 Mass. 75. Exceptions overruled.