Tibbets v. Gerrish

Eastman, J. It is settled in this State, that a count for money had and received cannot be sustained by a note or contract like the one in suit. Even were the action brought by Wentworth, the payee, and were there no defence of infancy, a recovery could not be had upon a general declaration for money had and received. Such is the direct doctrine of Wilson v. George, 10 N. H. Rep. 445. It seems, however, to be equally well settled here, although a different doctrine prevails elsewhere, that an action can be maintained upon a contract of this kind in the name of the payee, by declaring specially as upon a negotiable note. Odiorne v. Odiorne, 5 N. H. Rep. 315; Wilson v. George, 10 N. H. Rep. 447. In Odiorne v. Odiorne the court say: “ In Massachusetts, the custom has always been to declare upon notes payable out of a particular fund, — in specific articles, or upon a contingency, — in the same manner as upon cash notes strictly negotiable. In this State, the custom is believed to have been the same as in Massachusetts.” But this action was not brought by the payee, but by Tibbets, the assignee. The assignment is in sufficient form, being in blank, when delivery accompanies it; and the fact that it was transferred in blank to Tibbets & Brooks, does not vary the rights, under the declaration, as contended in the argument; for in declaring upon a transferred instrument, it is not necessary to notice the several hands through which it has passed, unless their names appear upon the instrument as indorsers or assignors. It seems also that it is not [48] necessary that any consideration between the assignor and the assignee be proved, and a formal statement of it, as in this declaration, is sufficient. Norris v. Hall, 6 Shepl. Rep. 332. The instrument declared on in this case is not negotiable; still it is a contract capable of being assigned, and an equitable interest becomes vested in the assignee, sufficient to enable him to maintain a suit in the name of the assignor. An action can also be sustained in the name of the assignee, if it appear that there has been an express promise to pay the assignee. Currier v. Hodgdon, 3 N. H. Rep. 82; Wiggin v. Damrell, 4 N. H. Rep. 73; Morse v. Bellows, 7. N. H. Rep. 549; Smith v. Berry, 6 Shepl. Rep. 122; Hodges v. Eastman, 12 Vermont Rep. 358; Coolidge v. Ruggles, 15 Mass. Rep. 388; Crocker & al. v. Whitney, 10 Mass. Rep. 316; Norris v. Hall, 6 Shepl. Rep. 332. t There was evidence here competent to show an express promise to pay the amount to Tibbets. The witness, among other things, said to the defendant, “ If you did sign the note, will you pay it to Mr. Tibbets ?” and the defendant said, “ I will.” And on the trial it was conceded that the note was signed by the defendant. In addition to the grounds taken by the defence, which we have already noticed, there is one other, that of infancy; and the replication to the plea of infancy is a new promise. Where the defence interposed is that of infancy, and a new promise is relied upon, a more stringent rule prevails than where the defence is the statute of limitations. To sustain an action against a person of full age, on a promise made by him when an infant, there must be an express ratification, either by a new promise to pay, or by positive acts of the individual, after he has been of age a reasonable time, in favor of his contract, which are of a character to constitute as perfect evidence of a ratification as an express and unequivocal promise. Hale v. Gerrish, 8 N. H. Rep. 374; Merriam v. Wilkins, 6 N. H. Rep. 432; Thompson & [49] al. v. Lay & ux. 4 Pick. Rep. 48; Goodsell v. Myers, 3 Wendell’s Rep. 479. We think the evidence in this action was competent to bring the ease within the rule above laid down. The promise was direct to pay, if the note was signed; and from the evidence produced, a jury might well enough find an absolute promise. This defence, then, also fails, and there must be Judgment on the verdict.