Merryfield v. Willson
| Decision Date | 01 January 1855 |
| Citation | 14 Tex. 224 |
| Parties | JOHN MERRYFIELD v. RICHARD WILLSON. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
Where the defendant had contracted to convey to the plaintiff his headright certificate in Peters's colony at a time when such certificates were inalienable, it was held that the plaintiff could recover back the price paid. (Note 32.)
Error from Ellis.
B. W. Stone, for plaintiff in error.
G. F. Moore, for defendant in error.
The case made by the petition is that the plaintiff paid the defendant a certain sum of money in consideration that he would transfer to him his certificate as a colonist in Peters's colony or procure for him a colonist's headright certificate; that the defendant had failed to perform his contract, and that he had in fact no right to convey or transfer, and that he had fraudulently obtained from the plaintiff a certain sum of money, the sum paid for the certificate.
The defendant appears to have contracted to do an act which he did not possess the legal capacity to perform, certificates of the class which he contracted to transfer or procure not being assignable. (Hart. Dig., art. 2241.) The plaintiff could not enforce specific performance of the contract, it is very clear. But he was entitled to recover back the money he had advanced upon the contract upon the equitable principle on which the common-law action for money had and received was maintained: that is, that where one person has received money of another which in honesty and good conscience he cannot retain, an action will lie by the party entitled to recover it back; or, as it has been expressed in conformity with Lord Mansfield's view of the equitable nature of the action for money had and received, “when money is due ex æquo et bono, it may be recovered in an action of assumpsit” for money had and received. (2 Burr., 1005, 1012; 6 Jur., 283, 284; Chit. on Con., 522.) It is upon this principle that money obtained by fraud is recoverable in an action for money had and received. (Id., 548.) “And so, when money has been paid as a consideration for doing some act for the use of the plaintiff, and it appears that the defendant has undertaken what he could not perform and has thus imposed on the plaintiff, the latter may at once sue the defendant for such money, although it was agreed that it should be paid at a future time, in case of the defendant failing to do what he had undertaken.” (Id., 548, 549; 2 Esp., 522.) Here the money had been paid as a consideration for...
To continue reading
Request your trial
-
Moore v. City of Beaumont
...it is substantially a duty to return to the payor money to which the payee never acquired title in equity. In Merryfield v. Willson, 14 Tex. 224, at page 225, 65 Am.Dec. 117, where the vendee sued the vendor to recover the purchase price of a land certificate which was nontransferable under......
-
City of Beaumont v. Moore
...cause. In such situations, as stated by the court of civil appeals, the two-year statute has been rigorously applied. Merryfield v. Willson, 14 Tex. 224, 65 Am.Dec. 117; Rayner Cattle Co. v. Bedford, 91 Tex. 642, 44 S.W. 410, writ refused, 91 Tex. 642, 45 S.W. 554; Causeway Investment Co. v......
-
Friberg-Cooper Water Supply v. Elledge
...391, 54 S.Ct. 443, 449, 78 L.Ed. 859 (1934)); Everett, 178 S.W.3d at 860 (citing Amoco Prod. Co., 946 S.W.2d at 164); see Merryfield v. Willson, 14 Tex. 224, 224 (1855) (holding action for money had and received would lie to recover funds paid either as money paid by fraud or as considerati......
-
Hall v. Ellwood
...(Tex. Civ. App.) 253 S. W. 601; Harrell v. Broome (Tex. Civ. App.) 50 S. W. 1077; Anding v. Perkins, 29 Tex. 348; Merryfield v. Willson, 14 Tex. 224, 65 Am. Dec. 117; Speckard v. Mendenhall (Mo. App.) 253 S. W. 166; Randon v. Barton, 4 Tex. 289; Anderson v. Duffield, 8 Tex. 237; Scranton v.......