Kelley v. Thompson

• Decision Date: 27 March 1902
• Parties: KELLEY v. THOMPSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

181 Mass. 122

63 N.E. 332

KELLEY v. THOMPSON.

Supreme Judicial Court of Massachusetts, Essex.

March 27, 1902

COUNSEL

Wiggin & Wiggin, for plaintiff.

W. S Peters and Harry J. Cole, for defendant.

OPINION

LORING, J.

This was an action on a note for $500, in which the defendant filed a declaration in set-off, containing a count for money had an received and one on the account annexed. The only item in the account annexed now insisted on is item 18: 'To discount on milk, at 4 cents per can, $381.68.' In the count for money had and received, the plaintiff seeks to recover the same amount as money received to his use. The case has been before this court before. Kelley v Thompson, 175 Mass. 427, 56 N.E. 713. It was there decided that evidence of an oral agreement between the plaintiff and the defendant, whereby the defendant was to buy milk of the plaintiff and pay 28 cents a can therefor, and the plaintiff was to allow the defendant a discount of 4 cents a can when the note sued on was paid, should not have been admitted. The ground on which that conclusion was reached was that as a defense to the note it varied a written contract, and as an independent cause of action in set-off it was within the section of the statute of frauds which requires contracts not to be performed within a year to be in writing. It was a contract not to be performed within a year because the note was payable two years after the date of the oral agreement, which was contemporaneous with the note. The case went back to the superior court, and on a second trial the same evidence was offered and excluded, and the defendant comes here on an exception to the ruling of the judge in refusing to admit it.

The defendant now contends 'the rule of law to be that where two parties have made an agreement which is invalid by reason of the statute of frauds, and one party has paid money or other valuable consideration relying upon said invalid agreement, that, if this agreement is repudiated by the party who has received the money, the party paying the money can recover the sum in an action of assumpsit for money had and received;' and cites Thompson v. Gould, 20 Pick. 134; Cook v. Doggett, 2 Allen, 439; Williams v. Bemis, 108 Mass. 91, 11 Am. Rep. 318; White v. Wieland, 109 Mass. 291; Dix v. Marcy, 116 Mass. 416; Root v. Burt, 118 Mass. 521; Parker v. Tainter, 123 Mass. 185; Holbrook v. Clapp, 165 Mass. 563, 43 N.E. 508; Miller v. Roberts, 169 Mass. 134, 47 N.E. 585. But the rule established by the cases cited by the defendant is not accurately stated by him, and does not support his contention in this case. That rule is that if a plaintiff has paid money, conveyed property, or rendered services under an oral agreement within the statute of frauds, which agreement the defendant wholly refuses to perform, he can recover the money paid, or the value of the property conveyed, or of the services redered. In that case there is a total failure of consideration, and the plaintiff can recover the value of any benefit inuring to the defendant as a result of the transaction. To the cases cited by the defendant may be added Basford v. Pearson, 9 Allen, 387, 85 Am. Dec. 764; Pulbrook v. Lawes, 1 Q. B. Div. 284; Riley v. Williams, 123 Mass. 506; Dowling v. McKenny, 124 Mass. 478; O'Grady v. O'Grady, 162 Mass. 290, 38 N.E. 196; and see Kneil v. Egleston, 140 Mass. 202, 204, 4 N.E. 573, and Holbrook v. Clapp, 165 Mass. 563-565, 43 N.E. 508. And, further, where the plaintiff has performed his agreement in whole, but the defendant has performed his agreement in part only, and a benefit inures to the defendant as a result of the transaction, the plaintiff can recover on an implied promise to the extent of that benefit. Williams v. Bemis, 108 Mass. 91, 11 Am. Rep. 318; White v. Wieland, 109 Mass. 291; Dix v. Marcy, 116 Mass. 416; Miller v. Roberts, 169 Mass. 134, 47 N.E. 585. The ground of recovery in that case is that the defendant has got the plaintiff's property without having fully paid for it, or that the plaintiff has paid the defendant in advance without receiving a quid pro quo. A recovery is had on the same principles as that given to a contractor who has erected a building on the defendant's land for which he cannot recover under the contract between him and the owner of the land, and which was recently discussed at length in Gillis v. Cobe, 177 Mass. 584, 59 N.E. 455.

In this case the principal defendant, in his declaration in set-off is not seeking to recover from the plaintiff on the ground that he had not received a quid pro quo for the money paid the plaintiff. What the defendant is insisting on here...