Lime Rock Bank v. Plimpton ( 1835 )

Wilde J.

delivered the opinion of the Court. The plaintiff’s claim is not founded on any privity between the parties, arising from an express contract, but on principles of equity imposing an obligation on the defendants, which the law will imply a promise on their part to fulfil. It is contended that the defendants have money in their hands belonging to the plaintiffs, which they cannot in equity and good conscience retain, and that in such case an action for money had and received will lie. And this general principle is undoubtedly well established by the authorities, and is reasonable and cannot operate injuri ously to any one. The question then is, whether the defendants have in their hands any money which in equity and good conscience belongs to the plaintiffs. It is proved satisfactorily that the money borrowed by the defendants of Parkhurst was the money of the plaintiffs in his hands as their agent ; but of this fact the defendants had no knowledge at the time of the loan. It was therefore a lawful contract between the defendants and Parkhurst ; and if the case had stopped here, t would be very clear that this action could not be maintained. For although it is true, that the sale by an agent, without authority, of property other than money may be disavowed, and set aside in the case of a bona fide purchaser, yet in respect to money the law is otherwise ; not only be cause money has no ear mark and cannot easily be identified, but because a different doctrine would be productive of great mischief. It is, therefore, manifest that before the defendants were notified, that the money lent was the money of the plaintiffs, they were liable only to Parkhurst, or if they had received the money in payment of their debt against Parkhurst, this action could not be maintained, even after notice to the defendants, that the money belonged to the plaintiffs. The only question therefore is, whether after notice the defendants could lawfully detain the money ; and we are of opinion that they could. As Parkhurst was indebted to them in a sum exceeding the loan, they had a legal right of set-off as against Parkhurst, of which they could not be deprived by the intervention of the plaintiffs’ claim ; and however disingenuous the defendants’ conduct may be considered in relation to Parkhurst, they had a legal right thus to secure their own debt. Their refusal to repay the loan according to agreement was a breach of promise ; but against this, the defendants could set off a breach of promise by Parkhurst, and this set-off is allowed by law. The defendants, therefore, had a .egal right to appropriate the money lent, to the payment of tneir own debt. This distinguishes the present case from that of Mason v. Waite, where the money came into the defendant’s hands unlawfully, and he had no legal or equitable right to retain it; and also from that of Clarke v. Shee, Cowp. 200. But the law as laid down by Lord Mansfield, in the latter case, is decisive against the plaintiffs’ claim. 11 Where money or notes,” it is said, “ are paid bona fide, and upon a valuable consideration, they never shall be brought back by the true owner ; but where they come mala fide into a person’s hands, they are in the nature of specific property ; and if their identity can be traced and ascertained, the party has a right to recover.”

Motion to set aside the nonsuit overruled.