JACKSON v. HOUGH.
| Decision Date | 15 November 1893 |
| Parties | JACKSON v. HOUGH. |
| Court | West Virginia Supreme Court |
On the facts the action was properly indebitatus assumpsit for money had and received, not for services rendered. The common count for money had and received was proper.
The action of assumpsit is an equitable action and applicable to almost every case where money has been received by one, which in equity and conscience ought to be refunded or paid to another.
Where a plaintiff has done everything, which has to be executed on his part, and nothing remains to be done but the performance of a duty on defendant's part to pay money due the plaintiff under contract, the plaintiff may recover on the common counts in assumpsit, and need not declare specially.
On the facts the consideration was sufficient to render the defendant's promise enforceable.
xAgainst a demand for money had and received by one for the use of another, the period under the statute of limitations is five years, and it begins on the receiptor the money.
Where a question is not allowed to be answered by a witness, and the question does not itself import that its answer will prove a fact material, and it does not otherwise so appear, the refusal to allow it to be answered will not be ground of reversal.
One single sale of land for reward by one for another taken alone without anything to show that the former professed to follow or practice the business of a broker, baying or selling for others stocks, securities, or other property for commission or reward, will not make him such broker, under section 2, c. 32, Code.
U, N. Arnett, Jr. and John W. Mason for appellant cited Bish. Const. Law §§ 438, 457, 458; Bish. Stat. Or. § 1030; 2 W. Va. 517; 11 Wheat, 258; 1 Rand.98; 32 Ala. 30; 11 Humph. 1; 26 Vt.184; 1 Par. Const. 458;1 Taunt, 136; Code, c. 32, s. 2.
A. B. Fleming for appellee cited 4 Min. Inst. 576; 4 Rob. Pr. 497, 498; 23 W. Va. 619, 632; 18 W. Va. 630; 5 W. Va. 190; 9 Leigh 532.
Jackson brought assumpsit against Hough and recovered judgment, and Hough brought the ease up by writ of error. Hough wanted to sell his farm. Jackson thought he could make something by selling it. He knew Adams wanted to buy a farm, and without knowledge or request of Hough went to Adams, and negotiated with him a sale of the Hough farm for six thousand dollars, payable in six bonds on Sharp neck of one thousand each, given to Adams. After this agreement between Jackson and Adams, Adams sent for Hough. Hough's price for his farm was five thousand dollars. When Hough came, Jackson asked him whether he would take five one thousand dollar bonds on Sharpneck, indorsed by Adams, for his farm, and Hough answered that he would. Then for the first time Jackson told Hough that lie had without his knowledge sold his farm over thirty days since for six notes of one thousand dollars each, and that he would do better by Hough than his first proposition; he would divide the proceeds of the last due Sharpneck bond, and Hough agreed to it. Jackson then caused a deed to be drawn from Hough to Adams, which Hough executed and committed to Jackson's hands, to be delivered to Adams when the transaction should be consummated; and Adams met Jackson, delivered to him the six Sharpneck notes and received the deed. Adams did not assign the notes to any one by name but simply indorsed his name on them. Hough was not present and had no participation in the delivery of the notes and deed. The transaction was between Jackson and Adams only. Hough needed the money and hesitated to take notes for his farm, hut he and Jackson concluding in their interview above mentioned that the notes could be discounted, Hough agreed to take them as above stated. After Jackson received the Sharpneck notes he handed them over to Hough, in order that Hough might have them discounted by a certain person named by Hough, who, as he thought, would buy them. Both Jackson and Hough tried to sell the Sharpneck notes. They made together a fruitless trip to Wheeling for the purpose. Finally Hough sold the last note. Learning this, Jackson demanded half its proceeds. Hough refused to pay. Jackson sued, and recovered a verdict and judgment for half its proceeds.
For the appellant it is contended that, as the declaration, which contains only the common counts, contained no count for work, labor and service, there could not properly be a recovery, as Jackson's claim, legally viewed most favorably to him, is for services in selling Hough's farm, and the agreement to pay half its proceeds to Jackson only a measure of compensation. If such were the character of Jackson's claim, this would be true. But I think his demand can properly be regarded as for half the proceeds of the sale of the last due Sharpneck note that is, for money received by Hough which he should ex aequo et bono pay Jackson and therefore recoverable under the count for money had and received by defendant for the use of the plaintiff. I regard the services as settled by the agreement to take half the proceeds of the note,
Suppose, before sale of it, Jackson had sued on the quantum meruit for services only, could he recover having agreed to take pay out of the note and just half of its proeeeds? After sale of it, could he sue only for services? If, on Hough's refusal to pay, Jackson might fall back on his services, it would he because Hough would be deemed to have repudiated that contract; and even then it would give Jackson election as to the form of his demand. He might sue for half the money for which the note sold. It is immaterial whether Jackson and Hough were joint owners holding equitable title to this note itself, or Jackson became owner of half the money from its sale; for in either case Jackson could go for half the amount arising from its sale.
Here is money in one man's pocket received under circumstances which call upon him ex aequo et bono to pay, and we need not refine as to the title to the note, whether in one or both parties; and, the action of indebitatus assumpsit being an equitable action, relief can be had by it for money had and received. If for my services to you we agree that I shall be paid by half the proeeeds of the sale of your horse, which we agree shall be sold, and you sell it, why may I not sue for half the money? Such was our contract. Did we not both contemplate or realize that the effect would be to give me right to half this money? Plaintiff is not suing for the note, hut, as his account filed with the declaration and giving specification plainly of the nature of his demand clearly shows, he is suing for money had and received for half the proceeds of the Sharpneck note; and, assumpsit being an equitable action, lie can recover under the count for money had and received, it being...
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