Hicks v. Cottrill

By the Court. This was an action of assumpsit, in four counts, work and labor, goods sold, money paid, and money had and received. The case, in the County Court, was referred, by consent of parties. The pleas were the general issue, and statute of limitations, and the plaintiff’s specification was: “ To cash, paid on “¡claim due Boynton & Hyde, debt contracted by Hicks & Preston, “ and assumed by Hicks & Cottrill, and which debt, on the dissolu- “ tion of partnership of Hicks & Cottrill, Cottrill promised to pay, “ $265,51. Interest from November, 1844, when paid by Hicks.” At the time the case was referred, it was agreed that the referee should, in the trial of the case, consider himself governed by the -rules of law, should make a special report, and should state in his report, that he did intend so to try the case. The matter in controversy is a debt due from a former firm, which Hicks & Cottrill assumed in buying out the concern. At the time Hicks and Cottrill dissolved, Cottrill gave a contract, under seal, to pay all the debts of Hicks & Cottrill, which was dated the 9th day of November, 1837. On the 28th day of April, 1840, the parties had what was considered a final settlement of their concerns, and the referee reports, “ That Cottrill, by agreement with “ Hicks, retained in his hands a portion of the assets of said part- “ nership, sufficient to pay the debt of Boynton & Hyde, aforesaid, “ and in the accounting, that debt was treated by Hicks & Cottrill as paid, or to be paid, by Cottrill.” The only question made in the case is whether, under the state [86] of the pleadings, the referee could justly report in favor of the plaintiff. It does not seem that the sealed instrument, in terms includes this debt; but was no doubt intended to extend to this, as the subsequent settlement sufficiently shows. But if in terms it does not include this debt, he has no reason to complain that he is not sued, in covenant, or debt. And if he, at the final settlement, retained funds of the partnership, for the purpose of paying this debt, these funds are to be regarded as money in his hands, for they may fairly be presumed to have produced money. If then, he has once had money, or money’s worth, what was treated as money, and may fairly be presumed to have produced money, and has failed to pay it out according to the trust, and plaintiff has been compelled to pay the debt, the money thereby becomes the plaintiff’s money, and the defendant from that moment must be regarded as having received it to his use, and it may be recovered in the common money counts. And the claim is sufficiently described in the specification, as money paid to Boynton & Hyde, since it was that act which created the obligation to refund the money. The specification, is only a bill of particulars, to advertise the defendant of what he is to meet,— and it is not important in á specification, to determine to which particular count the claim applies, or nicely distinguish between money, and money had and received to plaintiffs use. And if this were doubtful even, it would seem that the case of Eddy v. Sprague, 10 Vt. 216, would fully sustain the decision of the referee, that he was at liberty to proceed to try the cause of action on its merits, and that he was not bound to try the particular issue joined in court. In that case as well as this, the referees reported, that they intended to be governed by the rules of law, and still they reported for the plaintiff in that case, on testimony, which confessedly did not sustain the plaintiff’s declaration, and upon which he could not have recovered in the county court, without an essential amendment. And still, the county court accepted the report, and gave judgment for plaintiff, and this court affirmed the judgment. And in the case of Eddy v. Sprague, the referees referred the question of law to the decision of the court. The same point is in effect decided in Jewell v. Catlin, Brayton 215, and in Clifford v. Richardson, 18 Vt. 620. Judgment affirmed.