Burnap v. Partridge

• Decision Date: 01 February 1830
• Parties: ETHAN BURNAP v. ALDEN PARTRIDGE
• Court: Vermont Supreme Court

3 Vt. 144

ETHAN BURNAP v. ALDEN PARTRIDGE

Supreme Court of Vermont, Windsor

February, 1830

This was an action of assumpsit, and the count which was principally relied on was for money had and received. On the trial in the county court it appeared in evidence that the defendant, being superintendant and sole proprietor of the military academy at Norwich, made an agreement with the plaintiff, that if he, the plaintiff, would sell to the cadets in said institution such articles, and such only, as said defendant should permit them to purchase, at a certain price named for each article, he the defendant would approve the accounts of the plaintiff for said articles as correct against the parents or guardians of said cadets, or against any holden for the same, and would use his endeavours that the same should be paid in three months, and, at all events in four months, from sale; that both before and after the contract, the plaintiff and others at Norwich, who furnished said cadets with such articles as the defendant permitted them to purchase, had been accustomed to receive most of their pay through the hands of the defendant in money furnished him by the parents and guardians; that the plaintiff had sold and furnished to one Francis Bartlett, of Haverhill, Massachusetts, son of Bailey Bartlett, articles such as the defendant permitted, to the amount of $ 66,64 and the plaintiff's account therefor, being approved by the defendant, had remained in the plaintiff's hands. It appeared that the defendant, had receipted the plaintiff's account, and sent it to Bartlett for the purpose of procuring the money; but had never received it. The plaintiff also had transmitted his bills to Bartlett for payment, who, it seems, declined paying them on the ground that he had a receipt from the defendant. The defendant requested the court to charge the jury in relation to the count for money had and received in the plaintiff's declaration, that if the jury should find the account of the plaintiff sent to Bartlett and receipted by him, was sent without having received the money thereon, and that the defendant never did in fact receive the money except so far as related to what was due to himself, the plaintiff was not entitled to recover against the defendant for said $ 66,64 and interest thereon, as for money had and received, on said count. But the court refused so to charge, but did charge the jury that if they found the defendant did send such account so receipted, to Bartlett, and the plaintiff was thereby prevented from receiving his pay of Bartlett, the plaintiff was entitled to recover that sum of the defendant, and interest, on the count for money had and received, whether he had actually received the money or not. For as the testimony was before the court, the receipted account would be, in the hands of Bartlett, a defence to the claim of Burnap upon him, and the receipt was, therefore, conclusive and binding on Partridge, that he had received the money. The jury allowed said sum to the plaintiff, and interest. The defendant excepted to the opinion of the court; and a bill of exceptions stating the foregoing facts, and referring to certain paper evidence used on trial, being allowed by the court, the cause was ordered to the Supreme Court on a motion for a new trial founded on an alleged misdirection to the jury.

Collamer and Marsh, for the defendant.--I. It is contended for the defendant that the action for money had and received can be sustained only on its appearing the defendant has really received the plaintiff's money, or an equivalent. It is not enough to show he ought to have received it.--Maxwell v. Jameson, 2 Barn. & Ald. 51; --Rogers v. Kelly, 2 Camp. 123; --Dey v. Murray, 9 Johns. 171; --17 Mass. 563; --do. 579; --14 do. 400. All. therefore, which tends to show that the defendant has, or has not, in fact, received the money, is admissible in evidence, and on this depends the issue. The deposition of Bartlett, introduced by the defendant, tends to show the defendant never received the plaintiff's money, and the issue should thereon have been left to the jury.

II. Partridge ought not to be prejudiced by his laudable efforts in sending a receipted bill to procure the plaintiff's money, as it appears he was bound to use his exertions, and was using them, in the ordinary way, treating the plaintiff in the same manner he did himself, and is in no way answerable for the improper use Bartlett, mistakenly, made of the bill. The reason given by the court, " the receipted account, in Bartlett's hands, would be a defence to the claim of Burnap upon him," is not sustained by authority. If Partridge was unauthorized by Burnap to receive his pay, his receipt could have no effect. If from the mode of dealing it is to be understood the defendant was so authorized, then the receipt would have been subject to be met by proof of the non-payment of the money. It could have been no more conclusive than the receipt of Burnap himself which would have been subject to such testimony. Indeed, a man's receipt is never more than prima facie evidence against...