Gray v. Farmer , 55 Me. 487 ( 1868 )

Danforth, J.

The evidence reported in this case does not show any sale of grass seed by the plaintiffs to the defendant, nor any facts from which the law will raise an implied promise on the part of the defendant to pay for the same, but on. the other hand negatives any such proposition. There is, then, nothing on which the account annexed to the writ can stand, and for that the suit must fail. The count for money had and received stands upon a different ground. Such a count may be sustained, not only without an express promise, but even against the defendant’s denial of his liability, when it appears that the defendant has received money which in equity belongs to the plaintiff; as where he rightfully or wrongfully sells the plaintiff’s property and receives the money for it.

In this case, it appears that the plaintiffs purchased seed for themselves and, at the same time, bought a quantity for the defendant, he furnishing the money for that purpose. All the seed was mixed together, and this was done without any objection on the part of the defendant, and it may be presumed with his consent, as he afterwards took the whole of the first lot into his possession, and divided the second lot. It follows that the parties were owners of the seed as tenants in common, each owning in proportion to the money he put in. The defendant sold a part or all of the first lot and has received the money therefor. He has, therefore, money which he received for plaintiffs’ property. It is true that a bill in equity may be the proper remedy to adjust differences between part-owners growing out of the case, or in some cases, the income of the property; but, it is equally true, that, where one part-owner, with or without the consent of the other, sells his co-tenant’s interest and receives the money for it, he is liable in a suit at law for that money. Whether he did thus sell the plaintiffs’ interest in the seed, and to what amount, are questions for the jury, and, to settle them, according to the agreement of the parties, the action must stand for trial.

Kent, Dickerson, Barrows and Tapley, JJ., concurred.