Judges: Bingham, Stanley
Filed Date: 6/5/1879
Status: Precedential
Modified Date: 11/11/2024
The defendant is not rendered liable for money' had and received by the fact that he did .not insert Lamprey’s name in the writ as trustee, and did not serve the writ on him; nor by his taking the accepted order without the plaintiff’s authority ; nor by Lamprey’s unexecuted proposition. The defendant’s unauthorized action not being ratified by the plaintiff, Jennell is still the plaintiff’s debtor. No part of the defendant’s debt to Lamprey’s firm has been paid, and the defendant has received nothing of value for which he is liable to the plaintiff as for money had and received. Had the defendant been liable for not serving the writ, his liability could not be enforced in this form of action. The case would have been different if the amount Jennell owed the plaintiff had been received by the defendant from Lamprey in cash, or in a cancellation of an equal amount of the defendant’s debt to Lamprey’s firm; or if, by mutual agreement, Jennell’s debt to the plaintiff, and the same amount of Lalnprey’s debt to Jennell, and the same amount of the defendant’s debt to Lamprey’s firm, had been extinguished, and the plaintiff had accepted the defendant as paymaster in place of Jpnnell, and Lamprey’s firm had accepted Lamprey as paymaster in place of the defendant. If the plaintiff had chosen to ratify what had been done for his benefit by bringing a suit in the defendant’s name against Lamprey upon the accepted order, the plaintiff would have had all he was entitled to gain by a ratification of the defendant’s unauthorized act of taking the order.
Judgment for the defendant.