In 1855 the defendant covenanted to convey to the plaintiff a tract of land on the payment of certain notes given as the price thereof. The plaintiff paid towards the land $106.79; but becoming involved (498) beyond his ability to make further payment, the contract, *Page 384 in 1856, was rescinded, the plaintiff giving up his bond for title and the defendant surrendering the notes. Three months afterwards the plaintiff asked the defendant if he would pay him the $106.79, which he had received towards the land, to which the defendant replied that he had got the land back and had received the $106.79 toward the same, and it was wrong for the plaintiff to lose it, and he, the defendant, promised to pay back the said sum. On this special promise the suit was brought. The defendant contended that that was a promise without consideration, and that no action would lie on it, and asked his Honor so to instruct the jury. The court held to the contrary, and instructed the jury that, if they believed the evidence, the plaintiff was entitled to recover. Defendant's counsel excepted.
Verdict for plaintiff. Judgment, and appeal. We entertain a different opinion from that expressed by his Honor in the court below as to the sufficiency of the consideration upon which the defendant's promise was made. The contract entered into by the plaintiff for the purchase of the defendant's land had been completely rescinded, and two or three months had elapsed before the defendant agreed to return the money which he had received in part performance of the contract. The promise was, therefore, founded upon an executed or past consideration, and was, consequently, a nudumpactum. McDugald v. McFadgin, 51 N.C. 89; Hatchell v. Odom,19 N.C. 302; Felton v. Reid, ante, 269. But the plaintiff's counsel insists that the action for assumpsit for money had and received is an equitable action, and that it is against equity and good conscience of the defendant to keep this money. If the action could be supported upon (499) that ground, it could be maintained as well without as with an express promise of the defendant to pay it. For instance, if one take my horse and sell him, without my consent, and receive the price, I can sue him in assumpsit upon the count for money had and received to my use, whether he has promised to pay me or not. The law in such a case will imply a promise to pay — not, however, solely upon the ground that it would be iniquitous in him to withhold the price from me, but because there is a consideration of loss to me which is sufficient to imply a promise from him to pay what justly belongs to me. The true test of a consideration is to be found in the inquiry whether there was any benefit to the party promising, or any loss or inconvenience to the other party when the promise was made; for if there were, the promise is *Page 385 binding, but if not, then it is a nudum pactum and not binding. Findlay v.Ray, 50 N.C. 125.
In the present case, the contract for the purchase of the land having been fully and effectually rescinded by the delivering up of the papers on each side, the plaintiff lost nothing, and the defendant gained nothing, as the foundation of the defendant's promise. It was, therefore, without a consideration, and void.
PER CURIAM. Venire de novo.
Cited: Oldham v. Bank, 85 N.C. 244.
(500)