The plaintiff claims to recover, under the count for money had and received, one third part of $5,000 paid by him to the administrator of Henry L. Gordon's estate for the defendant, and which she has received of the said administrator on the faith of her parol promise and agreement to release, c. The case, however, as reported by the referee, does not show that the defendant has received the money as alleged. The case, in fact, finds the sum of $957.84 paid to the administrator, and a claim of $4,042.16 of the plaintiff discharged by him, but it does not find that in any shape or form the defendant has received any of this money, much less that she has received it as compensation for her dower.
It is plain, therefore, that under this declaration the plaintiff cannot recover money as had and received to his use, which the defendant is not shown by the case to have received at all. If the agreement shown by the case had been in writing and supported by a sufficient consideration, still the case does not show the money into the hands of the defendant. I am therefore of opinion that the action cannot be maintained.
LADD, J., concurred.
Case discharged. *Page 175