Parker v. Emery , 28 Me. 492 ( 1848 )

Whitman C. J.

— This case was taken from the jury by consent of parties, and a report made of the evidence by the presiding Judge; and we are called upon to ascertain the facts and to determine whether the plaintiffs are entitled to recover or not. And the cause has been elaborately argued both as to the law and facts of the case.

The defendant now insists upon an objection, which does not appear to have been taken at the trial, viz, that'the plaintiffs’ specification was incomplete, so that they cannot recover upon their count for money had and received. If this were the only ground upon which the plaintiffs could recover, the cause should not have been suffered to proceed, without the express or tacit consent of the defendant. __ But as no objection was made at the trial to the plaintiffs’ proceeding under their count for money had and received, the defendant must be held to have assented thereto.

The plaintiffs declare against the defendant, upon a contract as implied by law, for services performed ; and also for money had and received. As to the first count, it is evident that they cannot recover upon that. The services, for which their charge is made, were performed under a special contract, and for a person other than the defendant. It is not pretended that the defendant had any connection with the transactions, out of which the claim of the plaintiffs originated, till more than a year after the services were performed. If, therefore, the defendant is under any liability, in reference thereto, it must be under a promise to pay the debt of another person ; or for money had and received to the plaintiffs’ use. But there is no count in the plaintiffs’ writ upon any promise to pay the debt of another person, and, therefore, they cannot recover upon that ground. And if there were any such count, on looking through the evidence, it is not perceived that any such promise was made. It is true that the defendant often speaks in his letters to the plaintiffs and to their agent, of their claim for services performed, in cutting and hauling timber, of which he had taken possession ; and of his willingness that they should have their pay out of the proceeds from it; and often expresses his determination that they should be so paid. But he nowhere promises to pay them from his other resources. In one instance, however, he expresses a willingness to do so from his other resources, if he could; but this was far from making an absolute promise so to make payment.

The claim of the plaintiffs, under their count for money had and received, might be sustained, if there were evidence that the defendant was in funds from the sales of the timber; for he evidently took charge of it under an understanding that he should, with the proceeds from it, first pay the claim of the plaintiffs. His letters, above referred to, abundantly show this to have been the case. And the testimony of the witness, Webb, is to the same effect.

The case, however, as reported, does not furnish satisfactory evidence, that the defendant has received any money for the timber. The testimony of Webb, that the defendant received any portion of the five thousand and eighty-two dollars, contracted to be paid to James Irish, by the Bowdoinham Steam Mill Company, is manifestly erroneous. Irish’s deposition, referred to in the argument of the counsel for the defendants, shows that the defendant never received any portion of that sum ; and Webb himself says he did not see it paid to him. And it is equally evident that Webb was mistaken in saying that six thousand dollars were paid by that company ; and that three thousand of it was paid to the defendant. It was hot proved, that the defendant was in funds from the sale of timber cut by the plaintiffs, to any one else. The sale spoken of by Webb to Williams & Co. it seems from Williams’ testimony, cited by the defendant’s counsel, was not of lumber cut by the plaintiffs; and this is not controverted by the counsel for the plaintiffs in his argument. And the testimony of Webb, that the defendant told him he had sold some of the lumber to Humphreys, on cross-examination, was corrected, by testifying, that it was Humphreys who told him he had purchased some of the timber; and this was properly objected to as not being evidence of any such sale. It appears further, from the testimony of Webb, that the defendant had advanced, towards the cost of getting the timber down to Cathance, the sum of three hundred dollars. It does not therefore appear that the defendant is in funds to any amount on account of the timber cut by the plaintiffs, who must therefore, become nonsuit.