Southard v. Parker , 26 Me. 214 ( 1846 )

The opinion of the Court was drawn up by

Whitman C. J.

— The plaintiff by a levy, by virtue of an execution, on the 22d of November, 1841, acquired an estate in Orono, subject to the right of Messrs. Gosler & Dakin to redeem the same, within one year from the time of the levy; and, on the 29th of April, 1842, leased the same to John Goddard for the term of one year, commencing on the 10th of May, 1842, if not redeemed before the expiration of that term ; and, if redeemed, then, to the time of redemption, at an annual rent, payable quarter yearly. The plaintiff, on May 18th, 1842, assigned his counterpart of the lease in trust, for certain purposes, to the defendant, who, on the 12th day of November, 1842, received of Goddard, according to the terms named in the lease, the rent for three quarters of the year. On the 10th day of November, 1842, Gosler & Dakin redeemed the premises ; so that, the defendant received a quarter’s rent more than was due under the lease to the plaintiff, whose title had become extinct at the end of the second quarter; and whose lease, by its express terms, had, also at the same time, become null and void.

The action against the defendant is for money had and received; and the plaintiff claims of him the amount he received, as well for the third, as for the other two quarters. The charge of the Judge to the jury, excepted to on the part of the defendant, was, that the defendant should'be held, to account with the plaintiff for the amount received, notwithstanding it might turn out that the plaintiff was not entitled to hold to his own use all the money so paid for rents. We think, this position was somewhat too broad. The plaintiff was not accountable to Gosler & Dakin for more of the rents than had been received by him or His agent for the use of the estate, during the continuance of the title in him. After that he had no right to the rents and profits, in whose ever hands they might happen to be found. If Goddard were sued in trespass for mesne profits by Gosler & Dakin, it would be no de-fence for him, to say that he had paid rent for the third quarter to the defendant, the same having accrued after the redemption; nor would the fact, that he had paid it without being notified by Southard, that his tenancy under him had expired, be of any avail in his defence. Gosler .& Dakin were not bound to give him any such notice ; and they have no legal claim against the defendant for rent received by him ; for there is no privity of contract between them in reference thereto. Goddard, if compelled to account to Gosler & Dakin for the mesne profits for the quarter, next after the redemption, may have a remedy against the defendant for money paid by mistake. We think therefore, that the exceptions must be sustained, and that a new trial should be granted.