The plaintiff testified that one Barnett, a son-in-law of the defendant, owed him $24, due by bond given in 1859; that in the same year Barnett, being about to leave the State and the plaintiff about to sue out a warrant on his debt, the defendant said to him, "Doctor, don't warrant Barnett; he has put property in my hands to pay his debts, and when I sell it I will pay you all he owes you," whereupon the plaintiff desisted, and the debt remains unpaid.
The defendant (who was called by the plaintiff) stated that all Barnett's property was sold before the commencement of this suit; also (upon cross-examination) that he did not remember that he ever had any such conversation with the plaintiff as that sworn by (354) him; that Barnett had never placed any property in his hands, and that he had no property of his in hand; that after the time spoken of by the plaintiff (to wit, in November, 1859), Barnett made a deed of trust conveying all his property to one Howard, for payment of his debts; that the proceeds of this property proved insufficient to pay off the debts in the first class, the plaintiff's being in the second class. *Page 280
The court instructed the jury (amongst other things) that it was their duty to reconcile contradictions in the testimony, if they reasonably could, so as to avoid the conclusion that either party had committed perjury; that, as the testimony of Dr. Hicks was positive, and that of the defendant, "that he did not remember," if they found that no such agreement was made, it would be an imputation upon the veracity of the plaintiff, whereas if they found that it was made, there would be no such imputation upon the veracity of the defendant, and in this way their statements might be reconciled, but it was a matter for them. Also, that if they found that the contract was made, their next inquiry would be whether the defendant had, at or before the commencement of this suit, funds in his hands belonging to Barnett applicable to this debt; if he had, the Statute of Frauds did not apply, and the plaintiff would be entitled to their verdict; but if they did not find affirmatively on both of these questions, their verdict should be for the defendant.
Verdict for the plaintiff; rule for a new trial; rule discharged; judgment and appeal. We do not concur with his Honor in the view taken of the case.
He left it to the jury to say "whether the defendant had funds (355) in his hands belonging to Barnett." By this we are to understand property as distinguished from money; for there was no evidence that he had money in hand. On the contrary, the defendant, being made a witness by the plaintiff, swears that all of Barnett's property was sold by one Howard, to whom Barnett had made a deed of trust.
To entitle the plaintiff to recover it was necessary to show that the defendant had money of Barnett's in his hands. The promise is to pay "when I sell the property."
Draughan v. Bunting, 9 Ire., 10, turns on the fact that Bunting had the cash in hand; and so in Stanly v. Hendricks, 13 Ire., 85, it is assumed that the defendant had made sale and realized the price.
It is familiar learning that to maintain the action for money "had and received," or for money "paid," the defendant must have the money; indeed the very name given to these actions show that it must be so. See Page v.Einstein, 7 Jon., 147. The suggestion that the defendant either had sold the property, or was guilty of gross laches in not selling in so long a time, cannot avail the plaintiff in this action, which was *Page 281 commenced before a single justice of the peace. Whether it would support an action of another kind is not now presented.
We also think his Honor erred in intimating an opinion as to a matter of fact in regard to reconciling the testimony.
PER CURIAM. Venire de novo.
Cited: Mason v. Wilson, 84 N.C. 54; Craig v. Stewart, 163 N.C. 536;Thomas v. Carteret, 182 N.C. 394.
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