Mead v. Welch , 67 N.H. 341 ( 1892 )

With reference to the second suit, the jury found that the plaintiffs were induced to perform services for the defendants under a special contract through the fraud of the latter; that upon its discovery they abandoned the contract, retaining the $50 which the defendants had paid them, and that the plaintiffs' labor was reasonably worth to the defendants more than $50. Under such circumstances it is not apparent what useful purpose would have been promoted if the plaintiffs had returned the money received before bringing their suit. They found their present right of action, not on the special contract for their services, but on an implied contract, under which they are entitled to recover that their services are reasonably worth less any payments they may have received on account of their labor. Elliot v. Heath,14 N.H. 131; Horn v. Batchelder, 41 N.H. 86; Smith v. Newcastle,48 N.H. 70, 74; Blodgett v. Berlin Mills Co., 52 N.H. 215; Wood v. Garland,58 N.H. 154; Spiller v. Cass, 58 N.H. 489. They were not obliged to return money received from the defendants under the special contract, which they are entitled to retain under the implied contract. Wiswall v. Harriman,62 N.H. 671. The rule as to a return of property received under a rescinded contract merely requires a plaintiff to do what equitably he ought to do; and in many cases, in which equity requires a return of property received, the purpose is fully accomplished by returning it at the trial, or depositing it with the clerk subject to the order of court before trial. If the property is money or papers, the latter course may often be most conformable to justice. If the opposite party seasonably objects to a trial until such deposit is made, the question will often be raised under circumstances most favorable to that just and ample remedy which is a party's right. An order can be made imposing conditions and providing for all contingencies. Shaw v. Abbott, 61 N.H. 254; Fletcher v. Chamberlain,61 N.H. 438, 495, 496; Owen v. Weston, 63 N.H. 599, 602. It necessarily follows that orders may be made before trial that will put the parties on a footing of legal right without impairing the cause of action, or unjustly defeating the action on a point not affecting the merits.

It is not necessary to consider how far the doctrine of returning property has been modified by the view that parties are entitled to the best inventible procedure. In many cases, the return is a matter affecting the remedy only. In the present case, if justice required the plaintiffs to return what they had received before trial, it might be difficult, under the prevailing view of remedial law, to resist a motion that they deposit it with the clerk before trial, subject to the order of the court. But the verdict shows that justice did not require such a deposit. As the exceptions in both cases present the same question, there is ground for disturbing the verdicts.

Judgment on the verdicts.

BLODGETT, J., did not sit: the others concurred.