Burnap v. Partridge

Williams, J. delivered the opinion of the Court. — This case is to be determined in the same manner as it would be if there was no other count in the declaration than one for money had and received. In deciding this question it is altogether immaterial whether the defendant was originally liable to the plaintiff for the goods which are the subject of this controversy. If the defendant was liable in an action for money had and received, in consequence of his having sent the accounts receipted, as stated in the case, when he had not received the money thereon, or had not received credit therefor in an adjustment between him and Mr. Bartlett, sen., then the verdict in this case is not to be disturbed. To support an action for money had and received, it must in all cases be made to appear that the defendant has actually received money to the use of the plaintiff, or that he has received that which he considered as equivalent thereto and accounted for it as such. Thus, in the ease of Nightingale and others vs. Devisme, 5 Burr. 2589, it was decided that this action could net [147] "be maintained where East India Stock had been received; Lord Mansfield says, “ this action for money had and received will not lie where no money was received.” When one of the makers of a joint and several promissory note had given his bond for the amount and taken up the note, -it was held he could not maintain an action for money paid in order to recover a contribution until he had actually paid the money.—Maxwell vs. Jamieson, 2 Barn. & Ald. 51. The two cases which have been read, one from 3 Campbell, 199, Andrew vs. Robinson, et. al., and one from 6 Taunton, 110, Wilkinson and others vs. Clay and others, do not controvert this principle, but rather confirm it. In these cases the ’defendants wére insurance brokers, who had efleeted an insurance for the plaintiffs, had adjusted the losses, received credit in their several accounts with the insurers for the amount of the loss, and liad discharged the insurers. Tn both of these cases the defendants had in effect received the money when they were credited the amount of the loss in their accounts with the insurers, and it was upon this ground that the action was adjudged to lie. The receipt of the money may sometimes be presumed. Thus, when other property has been received which is saleable ; if it is not otherwise accounted for, the receipt of the money for the value of it may be presumed. This however does not militate against the principie laid down, that money must actually have been received. It is only declaring what may be evidence of this receipt. The question which then arises is whether the receipted accounts sent by the defendant to Mr. Bartlett, connected with the circumstance, as stated in the case, that Burnap, the plaintiff, was thereby prevented from receiving his pay of Bartlett, when he sent his account to him, was, as expressed in the charge of the court, “ conclusive and binding upon the defendant that he had received the money:” and we are of opinion that it was not. If this was the case the plaintiff was entitled to a verdict without producing any further testimony than the receipted accounts in the hands of Bartlett. We cannot consider this as any thing more than prima facie evidence of the receipt of the money ; and if from the other evidence it appeared that the money was not received, it was not conclusive upon the defendant. A receipt is only evidence of an acknowledgement by the party, and is liable to be contradicted or explained by other testimony. This has been repeatedly decided, not only in the courts of this state, but [148] elsewhere. In a suit between Partridge, the defendant, and m © 7 ? Bartlett, Partridge would not be concluded by those receipts. In a suit between Burnap, the plaintiff, and Bartlett, those re-ce‘Pls would not be binding and conclusive upon Burnap. And we can see no reason why they should be so considered in this suit. The plaintiff may have sustained some inconvenience,- and experienced some unnecessary trouble in consequence of the receipted accounts having been forwarded to Bartlett by the defendant : but that can have no effect upon the question under consideration. Cushman, for plaintiff. Collamer & Marsh, for defendant. From the testimony referred to as part of the case there does not appear to be any unfairness in the defendant in forwarding the accounts of the plaintiff receipted, as stated. It appears to have been done for the purpose of obtaining the money for the use ol the plaintiff". And it is not an uncommon occurrence that accounts thus receipted are transmitted to the persons who are to pay the same for the purpose of receiving the amount due thereon ; and we are not prepared to say that such receipted accounts are conclusive evidence of the payment of the money thereon, so as to preclude all inquiry whether it has been paid or not. The judgement of the county court must be reversed and a new trial granted. New trial granted.