Some of the grounds urged to reverse this judgment are of little moment. Such is the point that the referees *Page 609 erred, in refusing to allow the defendant's set-off, or counterclaim, as to certain moneys paid by him. To which point it was sufficiently answered below, that the pleadings set up neither counterclaim nor set-off, and, therefore, none could be allowed.
The claim of error in admitting evidence as to the letter of T.O. Larkin is manifestly unfounded; since, if fraud were the foundation of the action, it was clearly admissible; and if fraud were not the foundation of the action, the evidence was so utterly valueless that it could not have influenced the minds of the referees, and no finding, of even inducement to the agreement between the parties, is based on it, and no inference is drawn from it.
To the claim that there was a defect of parties, in that Marvine was not made a party plaintiff, there is a complete answer in law, in that such a point must be expressly raised either by demurrer or answer, and it is not raised in either way. (Code, §§ 144-148.)
That Marvine was the real party in interest is expressly negatived, as matter of fact, by the ninth finding of the referees, that he "duly assigned and transferred to the plaintiffs all claims and demands, which he had against the defendant, arising out of such adventure," c., in terms covering all the referees sustained as a cause of action. The question, (in any case,) whether the plaintiff is the true party in interest, or whether the title under which he sues is a mere sham, is, of course, one that every defendant is entitled to try. And if he relies upon facts, instead of, or beyond, or in contradiction to, the plaintiff's paper title or assignment, the question is not one of law for the court, but one of fact on which the jury are to pass. In this case the referees have so passed, and the finding is final. We are thus brought to the consideration of the chief ground taken on the part of the defendant, which is, that the cause of action, as laid in the complaint, was founded on fraud and deceit, and that such an action was for a tort of such a nature that the cause of action is not assignable. The authorities cited by the defence in support of this position, *Page 610 (Addington v. Allen, 7 Wend., 9; Zabriskie v. Smith, 3 Kern., 333,) go far to answer the position; since they show just what that action is, and that it is not for false and fraudulent representations by which the defendant himself obtained money or property, but for such representations, as to the credit and responsibility of a third person, as induced the plaintiffs in those suits to sell property on credit to such third person, and thereby the plaintiffs were injured, though neither the defendant nor his property was benefited. So far as the defendant's act and the defendant himself were concerned, it was a mere naked tort; and even as to these decisions, it may be advisable to see how fully they accord with the Revised Statutes. (2 R.S., 447, §§ 1, 2.)
Such is by no means the case before us. The facts, as found by the referees are, that, by false representations and the alteration of bills and vouchers, the defendant himself received from Marvine large sums of money to which he was not entitled; and they have found that the plaintiffs are entitled to recover, not for any fraud, but for the money which the defendant had so received, and which, being so received, he had no right to retain. This state of facts does not necessarily require an action to be brought for the tort, even if it allows one to be so brought. Such facts always raised, in law, the implied promise which was the contract-cause of action in indebitatus assumpsit for money had and received. Having money that rightfully belongs to another, creates a debt; and wherever a debt exists without an express promise to pay, the law implies a promise; and the action always sounds in contract.
Under the Code this implied promise is treated as a fiction, and the facts, (out of which the prior law raised the promise,) are to be stated without any designation of a form of action; and the law gives such judgment as, being asked for, is appropriate to the facts. Of course, we cannot now say that a particular phrase makes a particular form of action, so that a party, by its use, may shut himself out from the remedy which his facts would give him. He may, indeed, so utterly *Page 611 misconceive his rights as to make a complaint not at all adapted thereto; so that his offered proofs, (or even his proofs put in without objection,) would require an entirely new complaint to reach them, and then no court can give him judgment.
In the case before us, the assignment to the plaintiffs purports to be of "claims and demands, either for moneysreceived or owing, or for false and fraudulentrepresentations, or deceit, which I have, c., by reason of" the transactions between Marvine and Wood. The complaint says that Wood made false and fraudulent representations to Marvine about the moneys paid for joint account, and "by means of such false representations fraudulently and deceitfully obtained" property, c., from Marvine; and the plaintiffs, (as assignees of Marvine,) "therefore demand judgment against the defendant for the sum of $6,559.62, and interest from October, 1848." It would hardly seem that this is a complaint for a mere naked tort in an action claiming damages for the wrong. And unless it be so, necessarily and unavoidably, the ends of substantial justice would require us to disregard the words that charge a wrong.
Yet even this seems not now a necessary ground for sustaining this judgment. What valid objection is there to treating these words, ("fraudulently and by deceit,") as mere inducement, containing a statement of the facts which show that Marvine's payment was not a voluntary one with knowledge of the facts, and that, therefore, he was entitled to sue to recover back the money; and thus anticipating a defence? How, without some such statement, was he to show that it was not a voluntary payment, or that his settlement of the accounts was not final and binding on him? If, to avoid either of those objections, in an action to get back the money paid, he could have proved the actual facts, there can be no objection to his stating them in his complaint.
But conceding that a tort be one of the elements that go to make up this cause of action, it will be found to be assignable. It will be seen to be of that class of torts the right of action *Page 612 for which would survive to the personal representatives of the claimant; and "the power to assign and to transmit to personal representatives are convertible propositions." (Zabriskie v.Smith, supra.) And, further, it is, within the decisions both before and since the Code, of a nature that was formerly assignable in equity, and is now assignable at law. In McKee v.Judd, (2 Kern., 625,) it is held "that demands arising from injuries strictly personal, (whether arising from tort or contract,) are not assignable, but that all others are." (3 Kern., 333-335, 336; 15 N.Y., 432.) And by the Revised Statutes (2 R.S., 447, § 1), "for wrongs done to the property, rights or interest of another, for which an action might be maintained, c., such action may be brought after the death of the person injured, by his executors or administrators, in the same manner, c., as actions founded upon contracts. And the exceptions to this broad general rule are contained in the next section, and are confined to injuries to the person or character. In this case, if the action be for the fraud and deceit, it is for a "wrong done to the property," c., of Marvine; and by the statute could be brought after his death by his personal representatives, and is assignable.
The defendant's counsel claims that the findings of fact by the referees do not sustain the judgment, because they have not found the fraud, which is alleged in the complaint. It is quite true that they have not found the fact of fraud; but as we hold that the action is sustainable without there having been any fraud, and merely as an action for money, which the defendant has no right to retain, the failure to find fraud is no objection to the validity of the judgment, and it is to be affirmed as not being an action for the fraud.
It is proper to note another point taken for the defence: that, as the assignor of the plaintiffs, (Marvine,) had settled the account and receipted it as correct, the right to set aside that settlement, and avoid the effect of it as a substantial release to the defendant, and the right to avoid the effect of fixing the price, by the sealed contract to give $6,000 for one-half of the barque, were personal rights, which Marvine himself *Page 613 must assert, and which he could not assign. This is conclusively answered, by holding, as we do, that an account settled, or a release executed, is not the title by which the defendant received, or held the money, but a mere acknowledgment that, the items being true, the balance is correct, or that upon those stated facts the defendant is liable to repay the money: that the contract of purchase of the barque is not avoided, but the undue price is examined, and the excess is to be recovered as money had and received to the use of the plaintiff; and, in suing for the money, it is entirely immaterial, (in our present modes of pleading,) whether the plaintiff anticipates what would be matter of defence, and says in advance that it was so obtained as to be invalid, and no defence, or whether he omits all mention of it, and on the trial, when it is interposed as a defence, proves the fraudulent obtaining of it which makes it void, and no defence. The right of action is not founded on it; and it bears no resemblance to an instrument through which is to be made the title which is to found an action, and which requires to be reformed, or set aside, to obtain that title.
In any view, therefore, the judgment of the Superior Court should be affirmed.
The court did not pass upon the question whether, assuming the action to be for tort, it was of such a character as to be assignable.
Judgment affirmed.