Weed v. Weed , 22 Conn. 364 ( 1852 )

Ellsworth, J.

The question is, can the plaintiff retain his verdict of $117 and interest, there being no objection to the remainder.

A majority of the court believe that the plaintiff’s declaration is not so framed, that there can be a recovery, on this proof, on either of the counts; that his remedy is on the special contract, to which neither count is adapted.

The facts are these : the plaintiff and defendants, partners in making and selling boots and shoes, dissolved their partnership connection, the defendants taking the goods and credits, assuming the debts, and giving the plaintiff a note of $667.50, for what he had advanced, and a'greeing to pay him $117, computing his time, as a partner, at $3 a week, which makes that sum.

We think the plaintiff can not recover, on the first count, for goods sold; for the proof is not adapted to that count. Besides, the plaintiff was paid for all his goods and advancement, by the note of $667.50.

Nor can he recover on the second count, for work and labor ; for the proof does not sustain the allegation, that the work wras done for the defendants, at their request. The labor, if done at all, was for the partners, at no one’s special request, and it does not even appear, that the plaintiff was to receive anything, for his work and labor, as partner; it is presumed, that the partners equally gave their attention to the company’s business, in the usual way. What the state and condition of the company were,—whether the plaintiff, upon a final settlement of its affairs, would receive anything from his associates, does not anywhere appear; all we know is, the parties agreed to dissolve their connection, and the defendants assumed certain obligations, and undertook to pay the plaintiff, $117; all which was done to bring about the desired settlement. No prior debt or duty of the company is thereby acknowledged, nor does the settlement necessarily assume, that any existed. The work and labor not being performed, as we have said, at the request of the defendants, the settlement does not purport to make ft so,.or to change its original character or effect, but leaves it as it was before. The promise has no retroactive operation, but only gives a remedy according to its exact terms.

Perhaps there is more difficulty as to the third count, for money had and received. It must be conceded, that the distinctions here, are somewhat nice and technical; but, still, we think this count is not adapted to the existing proof. The defendants owe the money, it is true; but the question is, is it money had and received, for the use of the plaintiff, either in fact, or by legal implication ? I may owe my tailor ; but it does not follow that I owe him for money had and receiveff Now, we know certainly, this $117 was not, in truth, ever had and received by the defendants, as the plaintiff’s money, nor on his account; for they received no money whatever; but it is said, they maybe held to have received it, by a legal fiction. The argument is, that the company owed it to the plaintiff although he was one of them, and that the defendants agreed, that the company should be exonerated, and that they themselves would assume to pay it, and after this, may be treated as holding money had and received, for the use of the plaintiff. To this, we answer, that the ex-ecutory promise does not assume, that the company owed the plaintiff $117, but rather, the promise was made, in order to bring about a dissolution and settlement. Prima, facie, the company did not owe the plaintiff anything; so that, although the defendants are now indebted to the plaintiff, $117, they are not indebted for money had and received, for the use of the plaintiff. Chitty, in his treatise on contracts, page 617, says, “ It seems, the common count for money had and received, is not the proper form of remedy, if the defendant was not originally indebted to the third party, for money had and received.” So in Wharton v. Walker, 4 B. & C., 163, it is held, that the declaration should be special, if the original debt due from the defendants was not for money had and received. The case was this : one Lythgoe was indebted to Wharton, the plaintiff, and gave him an order on Walker, his tenant, to be paid out of • the next rent, which order was transmitted to Walker. When the rent became due, Lythgoe called on his tenant, and received the balance of the rent, after leaving in his tenant’s hand, the amount of the order he had given Wharton, and giving his tenant a receipt in full. Here the defendant held money for the plaintiff, yet the plaintiff could not recover for money had and received ; the court held, he must sue on the special promise made by the defendant, when the order was presented.” Bayley, J., says, “the case differs from Wilson and Coupland. There the defendants were originally indebted to Taillason & Co., for money had and received, and Taillason & Co. were indebted to the plaintiffs, and, with the consent of all parties, it was arranged, that the plaintiffs should take the defendants as their debtors. By that arrangement, the demand against Taillason & Co. was extinguished, and the defendants, having been indebted' to them for money had and received, it was held, the plaintiffs might recover, in that form of action. In the present case, no money was ever had and received by the defendant, for the use of any person.” Holroyd, J., says, “ I am of the same opinion.” In Tatlock v. Harris, Buller, J., puts the case ; “Suppose A owed B $100, and B owes C $100, and the three meet, and it is agreed between them, that A shall pay C the $100. B’s debt is extinguished, and C may recover that sum against A. In Wilson v. Coupland, the demand was originally for money had and received, and the intermediate debt was extinguished.” Littledale, J., says, “ Upon the facts proved at the trial, this can not be considered as money had and received, for the use of the defendant. In the present case, even if the parties had met and agreed, and the debt from Lythgoe had been discharged, still, no money had been received by the defendant for the plaintiff’s use, and the latter must declare specially on the agreement, and could not have recovered, in this form of action.” The same is virtually held- in Fairlie v. Denton & Barker, 8 Bar. & Cres., 395. We refer likewise, to Henning v. Rothschild, 4 Bing., 315; Israel v. Douglass, 1 H. Blk., 240; Taylor v. Higgins, 3 East, 170; 1st Moo. & Rob., 344. In the last case, which I find in Chitty on Contracts, 615, Blackledge v. Harmond, it appeared that the defendant, an overseer, had stopped a part of a pauper’s parochial weekly allowance, and engaged to pay it over to the plaintiff, the pauper’s landlord, in pursuance of an understanding between the three; and it was held, the plaintiff could not support an action for money had and received, against the defendant, inasmuch as the latter was not, at the time of the agreement, a debtor to the pauper.

These cases, as well as the general principles applicable to the action for money had and received, sustain us in the conclusion, that, at the time of the agreement, the company owed no debt to the plaintiff; and certainly none for which he could recover, for money had and received: and, that nothing has grown out of the condition of the parties, which gives a right of action on the common count.

In this opinion Church, C. J., concurred.

Hinman, J., having tried the cause in the court below, was disqualified. Waite, J., was of opinion, that the plaintiff might recover, on the count for work and labor. Storrs, J., was of opinion, that the plaintiff might recover, on the count for money had and received, but not on either of the other counts.

New trial to be .granted.