Conklin v. Tuthill , 10 N.Y. St. Rep. 624 ( 1887 )

Landon, J., dissenting.

Plaintiff admits that James was to furnish half the feed before May 15, 1883. He knew the feed was got at Knapp’s, and told Knapp .he would see it was paid. There was- no feed on the place when James went there. All the feed account was before May 15, 1883. When James got the $100, he paid it on this feed account, thus paying his father’s debt and his own out of money which was in equity, half his father’s and half his own.

The plaintiff has had'the entire benefit of the $100; fifty dollars upon the account with Knapp, and fifty dollars upon his account with his son, He simply lost the opportunity to misappropriate the money. He ought not to be allowed to recover it without making restitution of the benefits accruing to him from its .receipt by James; and the defendant should be treated as the equitable assignee of James and Knapp, and thus the party entitled to restitution, and hence plaintiff would take nothing. When substantial justice has been done, the court should be astute to prevent it being undone.