Trumbull v. Campbell

• Decision Date: 31 December 1846
• Citation: 3 Gilman 502,1846 WL 3885,8 Ill. 502
• Parties: LYMAN TRUMBULLv.THOMPSON CAMPBELL.
• Court: Illinois Supreme Court

3 Gilman 502

8 Ill. 502

1846 WL 3885 (Ill.)

LYMAN TRUMBULL

v.THOMPSON CAMPBELL.

Supreme Court of Illinois.

December Term, 1846.

ASSUMPSIT, for money had and received, brought by the appellee against the appellant, in the Sangamon circuit court. It was submitted to the court on an agreed case, when a pro forma decision was entered, and the plaintiff recover of the defendant the sum of $200, and costs.

The principal facts are stated by the court. It further appeared that the predecessor in office of the appellant in this case, who left the office under similar circumstances so far as regards the performance of the service spoken of in the opinion, received an amount similar to that received by the present appellant.

A. LINCOLN, for the appellant, relied on the following points and authorities:

No action at law will lie in the case,

1. Because Trumbull being in office when the appropriation was made, the legal right to the whole was instantly vested in him. Jones v. Shore, 3 Peters' Cond. R. 624; Buel v. Van Ness, 5 do. 445.

2. Because it involves an apportionment of the appropriation, which a court of law is incompetent to make. 1 Story's Eq. Jur. §§ 471-2; Robson v. Andrade, 2 Eng. Com. Law R. 432; Waddell v. Morris, 14 Wend. 76.

No action at law will lie in the case by Campbell against Trumbull, because there is no privity between them. 2 Comyn on Cont. 7; 6 Saunders' Pl. & Ev. 675; Chitty on Cont. 184; Tiernan v. Jackson, 5 Peters, 580.

S. T. LOGAN, and A. T. BLEDSOE, for the appellee.

The opinion of the court was delivered by TREAT, J.

Lyman Trumbull was appointed secretary of state on the 27th of February, 1841, and continued to hold the office until the 4th of March, 1843, when he was superseded by the appointment of Thompson Campbell. The legislature, on the 3rd of March, 1843, appropriated “to the secretary of state, for making index to the journals of the senate and house of representatives and laws, for copying laws, and making marginal notes and index to laws, the sum of six hundred dollars.” Laws of 1842-3, p. 13. Trumbull, on the 4th of March, 1843, before he went out of office, but after he knew he was to be superseded, claiming to have rendered two-thirds of the services for which the appropriation was made, drew an order on the auditor for two-thirds of the amount appropriated; and the auditor, at the same time, issued a warrant in favor of Trumbull for $400, which was not presented to the treasurer for payment until after Campbell came into office, but before he had performed any considerable portion of the remaining services. Campbell subsequently performed all of the remaining services, and alleging that Trumbull had received more than his share of the appropriation, commenced an action of assumpsit to recover of Trumbull the excess, as so much money had and received to his use.

The circuit court, on an agreed case presenting the foregoing state of facts, made a pro forma decision that the action was maintainable, and after hearing the evidence, the court found that Trumbull had not rendered more than one-third of the services; and therefore a pro forma judgment was rendered, that Campbell recover of Trumbull $200 and costs. That decision is assigned for error.

The only point in the case is, whether the action as between these parties can be maintained. This question was discussed at the bar with much ability, and some embarrassment has been felt in determining it. The various positions assumed by counsel, and the numerous authorities cited to sustain them, have been attentively considered and investigated. Upon mature deliberation, the court has come to the conclusion that the action can not be maintained, and I shall proceed briefly to state the reasons on which that conclusion is founded.

The general principle governing the action for money had and received is well understood and defined. The action lies whenever one person has received the money of another, which, in equity and good conscience, he ought not to retain. In such case the law will imply a promise to restore it, and provide a remedy to enforce the obligation. Let us inquire into the circumstances of this case, and ascertain whether Trumbull has...