Phelps v. Hart ( 1829 )

Judge Underwood

delivered the opinion of the Court.

Hart declared against Phelps, in assumpsit, for money Had and received to his use. He proved, among other things, that Robinson collected a replevin bond, to which he, Hunt, was equitably entitled, and that Phelps received part of the money from Robinson and took his nóte for the residue, and promised to acquit him of the demand. On trial, Phelps moved for an instruction to the jury, “ that they could hot find the amount of the note executed by Robinson in this suit, as it was not money.” The court refused the instruction, and in that there is error.

In assumpsit the consideration must always be expressed in the count, and in regard to it the probata must agree with the allegata. Here the consideration alleged, was money had and received to the plaintiffs use. It did not embrace a note of hand not collected, taken by the defendant to himself from Robinson, who may have received money to plaintiff’s use, and who retained a part and gave his note for it to the defendant, relying on his promise for acquittal. The court shtíuld therefore, have directed the jury to exclude the note from consideration, and not to find the amount of it for the plaintiff. The facts exhibited, show that although the plaintiff has misconceived the count so far as it respects the note executed by Robinson, he is not remediless.'

Judgment reversed for this only error, and for new proceedings not inconsistent with this opinion. The plaintiff in error must recover his costs.