Mosher v. Hubbard , 13 Johns. 510 ( 1816 )

Per Curiam.

Seyeral questions were raised and discussed on-the argument, which it will be. unnecessary to notice, as the facts in the case will, in the opinion of .the court, support the recovery, ou the count for money had"and repeived. The order drawn by the defendant- upon Eldred, irt favour of vBriggs-, the téstátor, was, as it imports upon the face of it, to-be/credited upon a bond and mbrtgage, given by Eldred to the defendant and Jesse Potter. 'This bond and mortgage was given to them, as the administrators oLJoJvn .-Potter,, 'deceased, .for lands belonging to bis estate; and sold under an order of the surrogate ; and the order drawn by the defendant was in part payment óf a debt due from- John Potter to the testator,' William Briggs. It is very evident, that- this order never was paid by Eldred, nor credited upon the bond and mortgage, as was intended at the time it was .drawn ;, and -the defendant afterwards transferred this bond'and mortgage to Sampson and Warren, and received the full amount thereof, without deducting the order; and in the account subsequently, rendere/1 f°j and settled before, the surrogate by the defendant,:of .his administration of Potters estate, he received a credit for the debt due to-Briggp,. in- part, payment of which.the order was drawn. These facts show conclusively, that the money has -come into -the defendant’s hands, and will warrant the conclusion, that he. received it to the use of William Briggs. The settlement of his account, and claiming a credit for the. debt paid to Briggs, shows that the defendant considered the money appropriated to the use of Briggs, and not as money in his hands, for the benefit of the'creditors of Potter generally. The plaintiff is, therefore,-entitled ;to. recover, unless barred by the statute of limitations; and, in the opinion of the court, the evidence is sufficient to take the case out of the statute. In the conversation stated to have taken place between the defendant and Brown, it was not intimated by the defendant that he intended to avail himself of the statute, but the only question in his mind seemed to be, whether the order had not been paid; and he promised to examine his papers, and if he found he had paid the order, he was to write to the witness; but, as the wit-. ness testified, he never has written. This was sufficient to raise an implied promise to pay the money, unless, on examination, it should be found that the order had been paid, and there is no evidence whatever of any payment. The motion for a new trial must, accordingly, be denied.

Motion denied.