Citation Numbers: 65 Me. 481
Judges: Appleton, Barrows, Daneorth, Dickerson, Libbey, Walton
Filed Date: 11/15/1876
Status: Precedential
Modified Date: 9/24/2021
This is assumpsit for money had and received by defendant to plaintiff’s use. It was agreed by the parties that defendant, on the 8th of October, 1874, brought a suit against one Alden Eider and Chapin & Co., of Boston, as trustees of said Eider, in the county of Suffolk, commonwealth of Massachusetts, and that said action was settled by the parties to the writ, and the amount of said defendant’s claim against said Eider and taxable costs of said action, amounting in all to $279.27, was paid by the trustees to the attorneys of the defendant who brought the suit upon the order of said Eider.
Plaintiff testified as follows : “I own 9-16ths of the schooner Sagi
On cross-examination, he said, “I allowed Captain Rider to dispose of the wood in Boston, did not know that the parties he traded with in Boston knew me; trusted to the integrity of Captain Rider to dispose of the wood and return to me my interest. Hathorn trusteed the whole cargo, took the whole amount of his bill and costs out of it, the balance was paid to the captain, and he paid it to the crew.”
Alden Rider, called by plaintiff, testified in substance as follows : “I had charge of this vessel last year, and carried this cargo to Boston, to dispose of. The parties I sold the wood to did not pay me because the cargo was trusteed. I talked with Hathorn’s counsel, told them that the cargo did not belong to me, told them that it belonged to Mr. Yarney, of Bath. I informed Mr. Chapin so before there was any settlement. To pay my debt to Hathorn, there was a check made out in my name by Mr. Chapin. He shoved it along to me to sign, I signed it and the sheriff took it. This-was after I had informed him and informed Hathorn’s attorney that the wood did not belong to me. The attorneys said it did not make any difference whether it belonged to me or not, they
On cross-examination he said : “The vessel was entered in Boston in my name. I told Chapin & Co., I was captain of the vessel and they bought the wood. I do not know whether they knew anything about Mr. Yarney or not. The sheriff gave me Hathorn’s bill receipted ; my indebtedness to Hathorn was paid by me at that time.”
Plaintiff recalled by his counsel testified: “I never had any contract or dealings with Chapin & Co., with regard to this wood. I did not know them. Had no knowledge of them in any way or shape.”
After the plaintiff introduced this evidence he stopped and defendant moved for a nonsuit which was ordered by the presiding judge.
We think the nonsuit was properly ordered. There was no privity of contract between the parties. The plaintiff claims to maintain his action on the ground that the defendant has in his hands money, which in equity and good conscience belongs to the plaintiff, and which the defendant has no legal right to retain. To bring his case within this rule, he claims that the cargo of wood was his property ; that Captain Eider was his agent in selling and receiving pay for it, and had no right to use the proceeds of the sale of the wood to pay his debts ; and that defendant received the order on Chapin & Co., with full notice of these facts.
To maintain his action, it is incumbent on the plaintiff to prove that the money received by defendant was his money, and that defendant received it with notice of this fact. Has he done so ? By the contract between plaintiff and Captain Eider as stated by plaintiff, captain Eider was to have three-tenths of the proceeds of the wood' as his own, for sailing the vessel, and had authority to pell it and receive the proceeds. He then had a legal right to retain and use as he pleased, three-tenths of the money received for the wood.
Eseeeptions overruled.