Scott v. Williamson , 24 Me. 343 ( 1844 )

The opinion of the Court was drawn up by

Shepley J.

The plaintiff claims to recover from the defendant the sum of $472,92, received by him on certain notes named in paper A, and not accounted for in a settlement made between the parties on July 5, 1841. The testimony introduced from the books of the People’s Bank and from those in its employ, leaves no doubt, that the defendant received that amount on those notes. The argument for the defendant denies, that the testimony in the case proves, that the plaintiff was the owner of those notes, or that he has exhibited any equitable title to the amount received. Two of those notes appear to have been indorsed by the plaintiff, and with the other two not indorsed, to have been delivered to the defendant, who would thereby apparently become the legal owner of them. If the legal property passed absolutely to the defendant, he might hold them in trust to account to the plaintiff for the amount received upon them, by indorsing it on notes, which he held against him. And according to the testimony of Hatch, they were thus holden by the defendant. Hatch says, that the defendant stated during a conversation before the settlement, “ that he had indorsed on those notes all moneys collected on any notes delivered him by the plaintiff; that at that time it was supposed, that the notes described in paper A, had not been collected ; and the settlement was made on that supposition.” And that the defendant stated in another conversation, after the settlement, that “ if the plaintiff would show, that he had collected the notes in paper A, he would then indorse the amount.” It is also insisted, that these notes might have been received in the first payment made by the plaintiff for the lands purchased, or that the amount received on them might have been accounted for in the indorsements made on the other notes, due to the defendant from the plaintiff. But the testimony of Hatch shows, that neither the notes, nor the money, could have been so appropriated. He says, “ the plaintiff, did not turn out these notes for his first payment,” and “ that the defendant did not pretend, that the notes in paper A, were received as part of first payment.” He also says, “ said indorsements did not include the money in controversy.” By the settlement made on July 5, 1841, the defendant was entitled to retain all the money collected on his notes against the plaintiff; and it is insisted, that if this money were collected on notes deposited as collateral security therefor, it must be considered as paid upon them as soon as collected. Such would be the presumption of law, but the testimony proves the fact to have been otherwise ; that the defendant denied, that the notes had been collected; and that the settlement was made upon the belief, that they had not been. It is further insisted, that the plaintiff cannot recover the amount received of the defendant, who holds notes against him to a much larger amount. Those notes have not been filed in set-off; and there does not appear to be any equitable right on his part to retain this money in part payment of them, because he has covenanted not to collect any further sum upon them, unless disturbed in the quiet enjoyment of the lands, for which they were given. It may be, that if the defendant had recollected, that this money had been received, he would not have settled with the plaintiff without retaining it. But it appears, that he did in fact settle upon the belief, that it had not been collected and received; and that settlement under seal must be considered as made for a valuable consideration. If the plaintiff should recover this money, the defendant will be left in as favorable a condition by that settlement, as he expected to be. Will have received as large payments towards that purchase, as he believed that he had, or as he claimed to receive on the settlement. Hatch does not appear to have been interested in the event of this suit. The plaintiff had before accounted with him for his interest in those notes. Nor is his testimony liable to the objection, that it contradicts, varies, or explains, the settlement made in writing between the parties. That does not appear to have related to the disposition of this money, or to the notes, on which it was received.

The defendant must be considered as collecting the money for the plaintiff; and he is not therefore chargeable with interest until called upon to pay it over.

Judgment on default.