Saville, Somes & Co. v. Welch

[687] The opinion of the court was delivered by Veazey, J. Under the transaction between the plaintiffs and Ide the title to the tea remained in the plaintiffs. They did not sell to Ide, but were led to suppose by Ide’s fraud that they sold to Welch. But there was no sale to him because he did not authorize Ide to buy for him. The plaintiffs, however, have brought assumpsit against Welch and claim to recover on the ground that he ratified the unauthorized act of Ide. This claim falls because Welch did not know the goods were bought on his credit. Subsequently to the transaction Welch received a bill of the goods from the plaintiffs, as he supposed by mistake, but was soon told by Ide that he had ordered in his, Welch’s, name, fearing lest if ordered in his own name the goods might be attached, and that he had received the goods and wanted the bill, and took it. He said nothing about buying on Welch’s credit or that the goods were not paid for. Welch was notified of nothing that he was called upon to disavow. Strong v. Ellsworth, 26 Vt. 366; White v. Langdon, 30 Vt. 599. The only fault alleged is that he was silent when he ought to have spoken. One sufficient answer is that he had no knowledge of the misleading fact. Nothing is more familiar than that there can be no ratification without knowledge of the material facts. For the same reason Welch’s purchase of the tea cannot constitute a ratification. He bought it as Ide’s tea without knowledge that it was not his tea. Another ground of claim is that assumpsit for money had and received will lie against Welch on account of his possession and disposition of the tea under the |Chattel mortgage. He and his co-mortgagee took possession of the whole stock including this chest of tea, because of breach of condition of the mortgage, and caused the same to be sold under the statute, and Welch bid off the entire stock, and the proceeds were applied on the mortgagees’ previous debt against Ide. Passing the point as to whether the defendant Welch got [688] in this transaction a superior right to that of the plaintiffs, and assuming that he did not, but would be liable in trover, is he liable in this action for money had and received ? When the plaintiff’s property has been wrongfully taken or appropriated and converted into money or its equivalent he may waive the tort and recover of the wrong-doer in assumpsit. This has been so held in numerous cases in this State since Burnap v. Partridge, 3 Vt. 144. But it must 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 as such, —as a promissory note or negotiable paper, or the satisfaction of a money demand. Kidney v. Persons, 41 Vt. 386, 392. He seeks to recover not damages for the wrongful taking to be measured by the value of fchq property, but for the money actually realized out of the property taken. He waives all tort, trespass, and damages, and claims only the money which the defendant has actually received and interest thereon, and is limited to that. Greenl. Ev. vol. 2, s. 117. As expressed by Lord Mansfield in Lindon v. Hooper, Cowp. 414, “ He is liable only to refund what he has actually received, contrary to conscience and equity”; and to the same effect in Moses v. Macferlan, 2 Burr. 1005. A different rule is stated in cases standing on grounds peculiar to their special facts, as pointed out by Prout, J., in Kidney v. Persons, supra, where he says, speaking of exceptional cases : “ When property has been received in satisfaction of a money demand, in a legal sense it is equivalent to money.” Butin such case we conceive it must be shown in what amount the application was made. This tea was received to be applied on a money demand, the mortgage debt, through a sale under the statute. But the case utterly fails to show how much that money demand was, or what the tea sold for, or how far the proceeds of it went in satisfaction of the demand. The tea still remained in the possession of Welch as he was the buyer. A small quantity [689] was afterwards sold in his behalf, but the report does not show what he got for it. IJpon whatever ground we attempt to put the case for the plaintiffs, we find a deficiency in the facts reported. The plaintiffs’ remedy therefore, if they have any, is necessarily limited to trespass or trover. An amendment of the declaration that changes the form of action is not allowable. Waterman v. R. R. Co. 30 Vt. 610. It is only legally amendable defects that a reference cures. Sumner v. Brown, 34 Vt. 194. Judgment affirmed.