Stone v. Knight

Shaw C. J.

delivered the opinion of the Court. Upon, the facts stated, we give no opinion whether, if the plaintiff has any remedy, it must not be in a joint action by himself and Bradburn. If the right to the money claimed, vested in the plaintiff and Bradburn, the subsequent transfer by Bradburn could not enable the plaintiff to sue alone ; it would be but the assignment of a chose in action. And if any such right existed, it would seem to be founded either on the agreement of the 23d of April, 1835, or on the deed given in pursuance of it, on the 25th of May, 1835, in both of which Bradburn was a party jointly with the plaintiff.

But upon the other ground, the Court are of opinion, that this action for money had and received cannot be maintained. The money received by the defendant was received as rent in adv mce, on a lease of an estate, which he then owned, and the money was received rightfully to his own use. If, at the time of the subsequent agreement of the defendant to sell the estate to the plaintiff, it was the intention of the parties, that money already received by the vendor, as rent in advance, should be paid to the vendee as part of the subject matter of the purchase, the right and the remedy must be sought for in the contract itself. Or, if the vendee was misled and deceived into the belief that the rent was due and payable from the time of the purchase, when in fact it had been paid in advance, his remedy must be on the warranty or misrepresentation. But we think it cannot be maintained, that money received by the defendant, to his own use, at the time, as rent of his own estate, in advance, can be considered as money had and received to the use of one who may afterwards purchase the estate before the expiration of the period, for which the rent has been advanced, the accruing rents, of course, pass to the purchaser, as incident to the reversion. But rents received in advance, are in the nature of an incumbrance, to be provided for in the terms of the contract of sale.

In the cases cited, the money was legally or equitably the plaintiff’s, when received by the defendant.

In Heard v. Bradford, the defendant had been paid by the plaintiff, the freight of a captured vessel. Afterwards an allowance for the same freight had been awarded to the defendant by the commissioners under the British treaty, and paid by the British government; and it was held, that it was received equitably for the benefit of the plaintiff, upon which equitable consideration the law raised an implied promise to pay it, as money had and received to the plaintiff’s use.

So in Arms v. Ashley, 4 Pick. 71, the defendant, at the time of the receipt of the rents, was trustee for the plaintiff.

Verdict set aside and plaintiff nonsuit.