Rector v. Hamtramck , 1 Mo. 565 ( 1825 )

M’Giux, C. X,

delivered the opinion of the Court,.

This was an action of assumpsit for work and labor, money.had and received, and on an account stated — plea, non-assumpsit; verdict and judgment for plaintiff, Hamtramck, in the Court helow. The errors complained of, appear by a hill of exceptions. The plaintiff, on .the trial, gave in evidence, to support his action, a writing, in substance as follows :

“ I do certify, that there is due to Alexander Hamtramck, deputy surveyor, the sum of seven hundred and ninety-one dollars and seven cents, being a balance for the surveying which he has done for the United States, which sum shall be paid to the said Hamtramck, or order, when funds shall be placed in my hands to pay the balances due to deputy surveyors,

Signed, WILLIAM RECTOR.”

It was proved, that before the commencement of this suit, said funds were placed in the hands of said Rector, to pay said balances. There was some proof of a demand, but if a demand was necessary, the proof was not sufficient. We will let that pass. The défondant’s counsel called on the Court to instruct the jury, that unless the money was demanded, they must find .for defendant This the Court refused. The above evidence was all given by plaintiff, and the Court was called on to instruct the jury, that there was no evidence of money had and received 3 .which was refused. These two points are the only ones worthy,of consideration. As to both points, we say the Court did right. The true interpretation of this paper is, that Rector acknowledged by it, that if certain moneys came to his hands, they would he to -and for the use of Hamtramck, and that he promised, absolutely, when the event should take place, he would pay it to Hamtramck. Why he made this express promise, is not necessary to be inquired .into; it is sufficient he has done so. The promise is not-that Rector will receive and hold money for Hamtramck, hut that if he receive money, he will pay. The proof is, he did receive the money. No de~roand was necessary, and there was evidence of money had and received..

The..-judgment is right, and is affirmed, with costs, and five per centum, damages..