Holden v. First Parish in Otisfield , 2 Me. 394 ( 1823 )

Per Curiam.'

The decision of this case depends on the finlerpretation of the contract. The subject matter of this contract was the monej' constituting a productive parish fund. If any subscriber removed out” of town, thus ceasing for a time to derive any benefit from the fund, he was only holden to pay the interest then due. If his absence continued three years, this seem? to have been taken as evidence of a final change of' domicil, in which case he was to be entitled to receive back his note. But any subscriber was at liberty to save himself the trouble of an annual recurrence of the payment of interest,by-depositing the capital itself in the treasury at once $ and it does not seem consistent with the principles of natural justice to place such a subscriber in a worse condition, than one who had never paid any thing to the fund, In the latter case the party would elect to retain the capital in his own hands, paying the interest; — in the former he would only have committed the management to the treasurer; — but in every case where he might reclaim the note, we think he might reclaim the principal rnoney paid upon it. This action is therefore maintained.

The objection that this action was prematurely brought, be? cause a small modicum of interest remained unpaid at its commencement, we do not think is well founded, The action for money had and received is an equitable action, in which the Court will endeavour, as far as is practicable, to settle the whole matter in dispute, Here the defendants were in possession of' pne hundred and sixty dollars of the plaintiff’s money, out of which, he might well have insisted, they should deduct any balance of interest due to them ; — for his claim against them being perfect for. the principal in their hands, and theirs against him being equally perfect for the interest due at thé time of his removal, the whole case would resolve itself into a comparison pf these two sums. But the defendants having received the interest due to them, — no matter whether before or after this ac-„ lion was brought, — there remains ho objection to .the recovery by the plaintiff of the principal vyhjch he has paid into, the funda ijvith interest.

Judgment on the verdicL