Connecticut & Passumpsic Rivers Railroad v. Newell

Redfield, Ch. J. The court have had no difficulty in regard to the first question. There was not such a discontinuance of the action that it was not competent for the court to reinstate it upon the docket. Until the actual discontinuance of the action in court, it was under the control of the court. It was in their discretion to restore it, and the exercise of such discretion is not subject to revision in this court, upon exceptions. It has been held that when the process is defective, and has never been entered in court, it may be so far discontinued by notice in writing, that if a new suit be instituted, it will not be regarded as vexatious. Wright v. Doolittle, 5 Vt. 390. And oral notice of discontinuance will be sufficient, in such cases, to enable the plaintiff to bring new suit but may subject him to the costs of the first suit until the entry of discontinuance in court. Hill v. Dunlap, 15 Vt. 645. But it has been held that after the .suit is entered in court the plaintiff can not discontinue it, out of court, without the consent of the other party. Jenny v. Glynn, 12 Vt. 480. At all events it is under .the control of the court until the actual entry of discontinuance by direction of the plaintiff, which does not seem to have occurred in the present case. II. The case upon the merits is one of more difficulty. There does not seem to be much question, that upon the facts proved upon the trial, the plaintiffs should recover in some form of action, and in this action indeed, unless the suit is premature. But the recovery in the county court went upon the ground that the plaintiff was entitled to recover back what he paid the defendant upon the note, as money had and received for his use, after the defendant negotiated the note, it being still current. And unless this view of the case can be mantained, a new trial must be granted, [371] since no other questions, which arise in the case, and which might constitute the basis of recovery in this or some subsequent action, have been properly submitted to the jury. We do not know what or how much the defendant received upon the transfer of the note to Davis, but only that the note was transferred upon “ good consideration.” If the recovery might have been put upon the ground that this was done by the defendant in his own wrong, which the plaintiffs might therefore claim the benefit of, by waiving the tort, and treating the defendant as their agent, he would at all events be entitled to have the questions of fact arising in this view of the case, submitted to the jury. And in regard to the money paid upon the judgment in favor of Davis, if there is no other insuperable obstacle, the fact that the payment was made since this action was instituted will preclude a recovery upon that ground alone. But it seems to us that the case was put in the county court, upon its most obvious and equitable grounds, and grounds which are maintainable upon the strictest legal reasons. This note, at the time being still current, was not liable to be extinguished by the mere fact of payment, as contracts not negotiable or those which are negotiable, but over due, may be. The payment of this note to the payee did not operate to extinguish the contract, until its literal application. • This contract possessed a distinto quality by which it was susceptible of being kept on foot and made binding upon the plaintiffs, notwithstanding the handing over of the amount due upon it to the payee, as payment until the literal application of the payment upon the contract itself. This'quality of the contract was well understood'by the parties to it, and there was therefore an implied understanding between the parties that the money received in payment should be actually applied upon the note, before the defendant parted with it. And whenever the defendant violated this implied understanding, and put it out of the power either of himself or the plaintiff to make the payment effectual, he thereby forfeited his right longer to retain the money. By putting the note in circulation he was guilty of a fraud upon the plaintiffs, by which he became a mere wrong doer in the holding of the money paid over to apply upon the note, which he impliedly bound himself to apply, and [372] which he had put it out of his power to do. He thereafter held the money in his own wrong, and consequently to the use of the plaintiffs, and they may recover it in this form of action. The only ground upon which the party making a payment is ever precluded from recovering it back is that the contract upon which the payment was made was thereby extinguished, and might and should have been defended when sued. And after suit and judgment upon it, to allow a recovery for money paid upon it, is virtually to allow a recovery back of the money for which the judgment was rendered, and thus collaterally to waive the judgment in another action. This is the very ground upon which the cases in this State, in regard to'this question, have proceeded. Strong v. McConnell, 10 Vt. 231; Corey v. Gale, 13 Vt. 639. But it is obvious that none of these reasons apply to the present case. No defence could have been made in the action upon the note. And this recovery is not in any sense attacking the judgment upon the note. It is merely recovering the money in the hands of the defendant, which he has failed to apply according to the implied duty upon which he received it. It is not in principle different from the misapplication of money received upon any other confidence or trust. And in all such cases the wrong doer always becomes liable to refund the money, and in this form of action. This case is not different in principle from that where the payee receives payment upon a negotiable instrument which he had already negotiated, or upon the faith of his having become the holder of an outstanding contract which he did not in fact hold. In such cases there could be no question whatever, that the money would be wrongfully received, and might therefore be recovered back as money had and received to the use of the party paying it. And the principle of the case becomes precisely the same here, after the defendant negotiated the note. To the interests of the plaintiffs, and in reason and justice, it can make no difference, whether the party never had the power to apply the payment, according to the implied duty upon the faith of which it was made, or has voluntarily put it out of his power to do so, after receiving the money. The present status of the party is precisely the same, both in equity and in law, as that of one who receives money [373] under the false pretence that he can and will apply it upon a negotiable instrument which he never owned or possessed, upon one which he had already parted with. In the case of Strong v. Mc Connell, supra, it was decided that if any future application of the payment was contemplated at the time it was made, before it should operate to extinguish the contract, it might be recovered back, if this failed, to be made, and the contract itself was subsequently collected. Something was said in argument upon the question whether the railroad bonds received by the defendant can be treated as money. Promissory notes, bills of exchange and bank bills, when received as money, have-long been allowed to form the basis of recovery upon the common money counts. The books are full of cases to this effect. And railway bonds and coupons are now held to be negotiable, the same as bank bills, and are by all treated as money. We think therefore the recovery may well be had under the count for money had and received. Judgment affirmed.