Tollenson v. Gunderson

By the- Court, Ceawboed, J. We entertain no doubt that the plaintiff in this case, in the court below, (who is plaintiff in error here,) could maintain an action for money had and received, against the defendant, for the consideration paid by him on the purchase of the land intended to be conveyed by the instrument, which was executed by the defendant and read in evidence on the part of the plaintiff on the trial in the County Court, and the reason is that he received nothing in return for his money— not even a deed, for the lands which he purchased, because the instrument referred to did not possess the essentials of a deed, and was in law a mere nullity. The cases to which we have been referred by the counsel for the defendant in error, only established the doctrine that where a party has received a valid deed of conveyance of lands, without covenants, and the title to the land fails, the grantee cannot recover back the consideration, and this is because he should have informed himself of the state of the title, or protected himself by proper covenants in the deed. (See Soper vs. Stevens, 14 Maine R. 133; Norton vs. Marden, 15, Maine. R. 45; Emerson vs. The County of Washington, 9 Maine R. 88.) [121] The contract, and indeed all the testimony introduced on the part of the defendant below was inadmissible under the issue joined in the case. We can perceive nothing in the case to which the contract would apply, and the testimony showed nothing that could be deemed the subject of a set off. But upon looking into the record we find that the declaration contains only an mdebitaius count for money had and received, and there was no bill of particulars of demand filed. The rules of the County Court require that where the action is founded on an account, in whole or in part, a copy thereof must be filed as a bill of particulars, and if the action be founded upon any written instrument, in whole or in part, a copy of such instrument must, in like manner, be filed with the declaration. The object of these provisions is to inform the defendant of the matters in which he is called upon to make a defense. In this case the plaintiff in the action should have filed some bill of particulars of his demand, and as this was not done, we think the instrument which he offered, and which was admitted as evidence against the objection of the defendant, ought fo have been excluded. In this view of the case, although the court committed an error in admitting the testimony offered by the defendant, we must conclude that the judgment was properly rendered in favor of the defendant, and the judgment is therefore affirmed, with costs.