The question is whether, if a town collector of taxes pays to the treasurer of the town money which the treasurer does not account for to the town nor to his successor in office, and in consequence of such omissions the collector is compelled to pay to the town the same amount of money a second time, and the money first paid to the treasurer is still retained by him, he having in no way accounted for it to the town or to his successor in office, it may be recovered of him by the collector in an action for money had and received.
We think it may. We regard it as settled law that when money has been delivered to the defendant for a particular purpose, to which he has refused or neglected to apply it, it may be recovered back in an action for money had and received. The law is so stated by Professor Greenleaf, and the authorities cited by him fully sustain the proposition. 2 Greenl. Ev. § 119, And see Norton v. Kidder, 54 Maine, 189.
We see no reason why this rule should not apply to a town treasurer who, having received money from a collector of taxes, neglects or refuses to give the collector credit for it, in consequence of which the collector is compelled to pay the money a second time. We think it should. We think it would be difficult to conceive of a case more proper for its application.
Such was the ruling of the court in this case, and we think the ruling was correct.
Exceptions overruled.
Judgment on the verdict.
Appleton, C. J., Danforth, Virgin, Peters and Symonds* JJ., concurred.