Prentiss v. Foster , 28 Vt. 742 ( 1856 )

The opinion of the court was delivered by

Redfield Ch. J.

This is a demurrer to the declaration. 'The declaration states, in substance, that one Owen Brown having funds in the hands of one of two firms, of which the defendant was a member, drew an order upon the firms, directing them to pay-over whatever they, or either member of said firms might have in their possession, to the plaintiff. And it is alleged that the plaintiff presented the order to these firms, and to the defendant, who had, by the firms, been entrusted with the liquidation of the business out of which the money was expected to arise, for acceptance, and the defendant then and there accepted the same, and thus became liable to pay, Scc.

From the form in which this order was drawn, requiring the money in the hands of either member of both firms to be paid over, and that the defendant had the control and management of the business out of which the money was expected to come, and tha^ the defendant accepted the order individually, we are to assume, we think, that he accepted the order, and thereby promised to pay the money, upon the consideration of having it in his personal possession and control. This would be a perfectly valid contract, and would enable the plaintiff to recover either upon the special counts or general count for money had and received.

Judgment affirmed.