McLellan v. Walker , 26 Me. 114 ( 1846 )

The opinion of the Court was drawn up by

Whitman C. J.

One count in the 'plaintiff’s declaration is for money had and received ’; and on that, it seems to be conceded, that he must, recover, if he can recover at all. The order, acceptance and assignment was undoubtedly an equitable transfer of the demand in question to the plaintiff. Authorities need not be cited to establish this position; and it is not understood to he questioned in the defence. And in an action for money had and received no more can be recoverable, than in equity and good conscience may be found to be due. The defendant has received three hundred dollars from the source indicated by the transfer; and cannot detain it, unless he has some cross equities to set off against it. The order was drawn without allusion to any thing of that kind, and accepted accordingly. The plaintiff", therefore, on looking at the order, was not given to understand, that he had occasion to be upon his guard against any thing not therein alluded to; and, when the defendant was notified of the transfer, it does not appear that he expressed any dissatisfaction at its having been done; and at that time he had not received the three hundred dollars. He now claims to have a. demand against the estate of William McLellan, the original creditor, and the assignor of the order, which had accrued, it would seem, long before the acceptance by him, indorsed upon the order. Under these circumstances it does not seem to us equitable, that he should be allowed to avail himself of any such set-off.

After he received notice of the transfer of the demand to the plaintiff, he became his agent in making the collection. The plaintiff had, before, become authorized to control the concern. The defendant could act no longer as the agent of William McLellan in the matter, although he might be bound to continue the suit in his name. Whatever he received thereafter, was not William’s but the plaintiff’s; and the three hundred dollars received in pursuance of instructions from the plaintiff, by way of compromise for the claim, was the money of the plaintiff, the same as if the demand had been originally put into his hands by the plaintiff for collection, in the name of William. Clearly, money so collected for an equitable assignee, would be money received to his use, and not to the use of the assignor or nominal plaintiff.

Moreover, at the time the demand was assigned it was not a demand against the defendant; it was against a third person. William had a perfect right to assign it to whom he pleased, saving to the defendant his lien upon the judgment obtained, for his expenses in the suit, and its incidents ; and those, we understand, were paid by Carr, in the compromise with him, over and above the three hundred dollars received as above stated. With such a reservation, or after exercising power over the demand to that extent, the defendant could have had no right to question the validity of any assignment, which the nominal plaintiff might see fit to make. If the debt had been collected before the assignment, the defendant would have become the debtor; and a different case would have been presented, concerning which we give no opinion.

Defendant defaulted.