Morse v. Allen , 44 N.H. 33 ( 1860 )

Bellows, J.

We think there is no objection to the form of the action. If a binding agreement to pay is shown in the form reported, the amount may be recovered under the count on account stated. 1 Ch. Pl. 358; 4 Stark. Ev. 123; Moor v. Hill, Peake Ev. 257; Richards v. Heather, 1 B. & A. 29; Foster v. Allanson, 2 T. R. 479 ; 2 Greenl. Ev., secs. 126-7, and notes; 4 Cow. Phill. Ev. 124, n. 360 ; Payne v. Jenkins, 4 C. & P. 324 ; where it was held that a party may recover the amount of an I. O. IJ. under this count. So it is held that proof of an account stated will support a count for money had and received. Filer v. Peebles, 8 N. H. 226 ; Lincoln v. Butler, 14 Gray 129.

The question then is, whether, on the evidence reported, the plaintiffs were entitled to recover ; or, in other words, did it legally tend to prove a stated account. Assuming that Seaver was the debtor originally, it appears that the creditor and debtor, and the defendant, by his agent, were together ; that the amount due was ascertained and stated, and that the defendant agreed with the creditor to pay it, and gave him therefor his promise in writing, which was accepted by the creditor. If it was competent on the evidence to find that the creditor agreed to receive the defendant as paymaster, the case would come within the principle of Heaton v. Angier, 7 N. H. 397, which is sustained by numerous authorities, among which are Ranlett v. Moore, 21 N. H. 336; Chit. Cont. 537-9, and notes ; Butterfield v. Hartshorn, 7 N. H. 397 ; Wilson v. Coupland, 5 B. & A. 228 ; Fairlee v. Benton, 8 B. & C. 395; Tatlock v. Harris, 3 D. & E. 180.

In the case before us the plaintiffs’ account was for work on or about the defendant’s lumber, for which in some form he was expected to furnish the means of payment; and the substance as well as the form of the arrangement between the parties was, that the defendant assumed to be the debtor, and was so received by the plaintiffs, with the assent of Seaver; and it was done in a manner wholly inconsistent with the idea of an engagement collateral to that of Seaver.

The court, then, we think, might wTell find that the defendant was taken as paymaster.

This will render it unnecessary to consider whether the stating of the account is of itself so far a consideration for the promise that a previous existing indebtedness need not be shown, as would seem to be intended in some of the authorities cited. There must, therefore, be

Judgment for the plaintiffs.