Tuttle v. Mayo , 7 Johns. 132 ( 1810 )

Per Curiam.

On the trial, the plaintiff gave in evidence the defendant’s receipt, for 36 barrels of pork, in store, to be delivered to the plaintiff’s order; no other evidence was given in support of the special count. But from the evidence it appeared, that part of the pork had been sold; and the money was in the defendant’s hands. With respect to another part of the pork, though there is no direct evidence that the defendant sold it, the inference is irresistible that he had sold it, and had the money in his pocket.

There is some contrariety in the books, on the question, whether a plaintiff, after having attempted to support a count on a special agreement, and failed, may resort to the general 'counts ? We think the rule laid down by Sir James Mansfield, in 4 Bos. & Pull. N. S. 355. is correct and accurate, and therefore adopt it; it is this, where a party declares on a special agreement, seeking to recover thereon, but fails altogether, he may recover on a general count, if the case be such, that supposing there had been no special contract, he might still have recovered. In this case the plaintiff failed wholly in making out a special agreement, and under the count for money had and received, the evidence entitled him to recover.

It is not necessary, in all cases, to give positive evidence, that the defendant had received money belonging to the plaintiff. Where, from the facts proved, it may be fairly presumed he has received the plaintiff’s money, the action for money had and received is maintainable» (Doug. 137.)

The verdict is perfectly just; and unless some legal principles have been violated, and we think none have been, there ought not be a new trial.

Motion denied.