Bean v. Jones

Upham, J. In this case there were several counts in the writ. In the three first counts the grievance complained of was that the plaintiff had purchased of the defendant certain articles of merchandize on six months’ credit, and that prior to the expiration of that time the defendant had caused a writ of attachment to be sued out to enforce payment, greatly to the damage of the plaintiff. These counts were ultimately abandoned; and the plaintiff relies to sustain his suit on his right to recover the sum of §20,42, over payment by him to the defendant. [152] This sum was included in a note given in payment of the defendant’s claim, by the father of the plaintiff, who had the temporary custody of the plaintiff’s store at the time, and who procured a surety to sign the note with him — which note was afterwards paid by the plaintiff, with a full knowledge of all the facts. The portion of the claim included in said note which is objected to, and which is now sought to be recovered back, is a charge for expenses incurred by the defendant on a journey from Portsmouth to Moultonborough, to collect his demand against the plaintiff. The case finds that this expense was actually incurred ; and that the reason, on the part of the defendant, of attempting to enforce payment of his debt was that other creditors had, immediately prior to this time, enforced payment of their demands; and the defendant on this account took similar measures to secure his own debt. The expenses incurred were not legal costs. Though the defendant went prepared to enforce his claim by suit, and might, perhaps, have occasioned in that manner an expense equal to the sum now in controversy, still this sum was not claimed or adjusted as the costs of a suit, but as the individual expenses of the defendant. A promise for the payment of costs actually incurred would be a foundation for a legal claim. Staying the trial of a cause is a good consideration for a promise to pay the costs incurred. Dell vs. Fereby, Cro. Eliz. 868; 1 Wheat. Sel. 67. But the promise in this case was not made on such a consideration. It was a gratuitous offer on the part of the plaintiff, to remunerate the defendant for the expenses incurred by him, or rather an assent to the defendant’s claim to this extent, as being, under the circumstances of the case, just and equitable. It is not a case of pretended expense to cover a claim of usury, or of a promise of payment occasioned by extortion. The case furnishes nothing to countenance such an idea. The promise is like those founded on a mere moral consideration ; and were it still a promise, without [153] the subsequent fact of a voluntary payment, which is attempted to be revoked, it could not be sustained. Mills vs. Wyman, 3 Pick. 207; Edwards vs. Davis, 16 Johns. 281; 3 Bos. and Pul. 269, note; Cook vs. Bradley, 7 Conn. Rep. 57; 2 Kent’s Com. 2d ed. 465. But in this instance a voluntary payment was made. No deception was practised as to the amount of expense incurred, and no exception was taken to the charge at the time of payment. In Marriott vs. Hampton, 2 Esp. 546, Lord Kenyon held that where a party who is sued on a claim which he knows to be unfounded, pays it voluntarily and with notice, the money so paid cannot be recovered back in assumpsit. The same rule holds with still stronger reason where voluntary payment is made without suit. Gates et al. vs. Winslow, 1 Mass. 65; Holmes et al. vs. Avery, 12 Mass. 134; Hill vs. Green, 4 Pick. 114; Hall vs. Shultz, 4 Johns. 241. It is holden that there is no pretence that an action for money had and received will lie to recover back money given as a gratuity. Also, that when a party who may be entitled to resist a claim on account of its illegality, waives that privilege and fulfils the contract, he cannot be permitted to recover the money back. Boyter vs. Dodsworth, 6 D. & E. 681; Howson vs. Hancock, 8 do. 575; Burt vs. Place, 6 Cowen, 431; Fulham vs. Down, 6 Esp. 25, note; Brown vs. McKinally, 1 Esp. 279; 2 Kent’s Com. 465; Greenwood vs. Curtis, 6 Mass. 381; Inh. Worcester vs. Eaton, 11 Mass. 368. In this case the payment was voluntary ; and though the claim might have been originally resisted, the money having once been paid cannot be recovered back. The verdict, therefore, taken for the plaintiff, must be set aside, and there must be Judgment for the defendant.