If this case were to be determined according to our views of the correctness of the decision made at Washington, upon the effect of the instruments executed by Starke, I should have no hesitation in saying that the plaintiff was the creditor of the United States, and by the assignments received from Starke, and the subsequent performance of the mail contract, entitled to receive the full amount becoming payable therefor.
The decision there made, seems to me unjust; and in my opinion, if an action could be maintained against the United States with like effect as against an individual in similar circumstances, *Page 458 the payment made to the defendant upon the order of Starke, would constitute no defence.
It is, however, unnessary to state at length the reasons for this opinion, first, because the whole argument of the appellant assumes that the defendant had no legal nor equitable right to collect the money called for by the order of Starke, and that, as a payment on the mail contract, the United States had no right to pay it to him; and second, because the view which I feel compelled to take of the plaintiff's right to maintain this action, makes it unnecessary to discuss that question, for the reason that the present is not a case in which the defendant having a legal authority to receive money from the United States, but as between himself and this plaintiff's being under an obligation by contract or otherwise, to give to him or permit him to take the money, has collected it in fraud of his rights, and so has received money which the law implies to have been received to his use.
The defendant had, in fact, no authority to receive money which belonged to the plaintiff. He never pretended to have such an authority. The United States never consented to pay him money which belonged to the plaintiff, nor intended to do so. Nor has the defendant obtained the money of the plaintiff by fraud, which the plaintiff can waive, and affirming the payment proceed against the defendant as his agent in the collection. And if the payment by the United States was wrongful, it was no satisfaction of the plaintiff's claim by virtue of the mail contract; and if an action could be brought against the government would be no bar to a recovery.
However satisfied by the proofs in this case, that the payment by the United States to this defendant was made upon an erroneous view of the plaintiff's right, and that it was greatly unjust to him, I am constrained to say that the plaintiff has no recourse to the defendant to recover the money from him in this action.
The defendant claimed the money in direct hostility to the plaintiff's claim. The United States consented to pay the money to the defendant, and did pay it in distinct repudiation *Page 459 of the plaintiff's title thereto. And there was never a moment in which the plaintiff could point to the money and say, that to that particular money I have a title; and so he cannot aver, as to the money in the hands of the government or in the hands of the defendant, the latter has received or converted my money to his own use. As money has no ear mark, the government stood as mere debtors in the transaction. The money which was paid did not satisfy the debt, if the defendant was not entitled to receive it. Before payment the money was not the property of the plaintiff. The receipt of it by the defendant, in assertion of his own right to receive payment of his draft, and not under color or pretence of authority to receive it as money due to the plaintiff, did not per se invest the plaintiff with title.
The case of Patrick et al. v. Metcalf et al. (37 N.Y., 332), seems to me to decide the precise question, without rendering it material to inquire to what extent, if at all, the plaintiff is affected by the decision of the auditor or the comptroller of the United States treasury.
Laying those decisions out of view, except so far as they show that the money was deliberately and intentionally paid to the defendant, with intent to recognize his claim and to deny the title of the plaintiff, the case above mentioned is like the present.
There, as here, the plaintiff claimed payment to them of moneys, which the government owed for services rendered in the transportation of goods.
The defendants claimed, that such payment should be made to them as the persons justly entitled. The disbursing officers of the government saw fit to pay the money to the latter.
This court held, that, however true it might be that the government officers should have paid the money to the plaintiff and not to the defendants, no cause of action resulted to the former to recover the money from the latter, as so much recovered to the use of the plaintiff; and that such payment to the defendants, created no trust by implication or otherwise, which the plaintiff could enforce by action to recover the money. *Page 460
The cases cited by the appellant, and particularly Bradley v.Root (5 Paige, 632), and The New York Ins. Co. v. Roulet (24 Wend., 505), do, undoubtedly, give great plausibility to the plaintiff's claim to maintain this action. The first was distinctly before the mind of the court, when Patrick v.Metcalf was decided, and anything said in the opinion in that case, if it conflicted with the latter decision, must be considered overruled.
But there is a clear distinction between the cases, and one which makes the difference between cases of this general character, in some of which moneys received by a defendant under claim or pretence of right, are deemed received to the use of the plaintiff; and in others, they are not so regarded, and the action will not lie.
In Patrick v. Metcalf, the payment, by the United States, was a due and proper payment, in full and complete discharge of all liability for the amount paid, and would have been so, had the government been in no other situation than an individual. It was, therefore, an authorized payment, and discharged the debt which was, as between the plaintiff and his assignor, due to the former. In the next place, the assignor (the nominal and legal creditor) had not only assigned his contract to the plaintiff, but had covenanted to deliver and pay over to the plaintiff the moneys, c., received by virtue thereof; and of the rights of the plaintiff, in this respect, the defendant had notice, when he received the draft of the assignor.
That case, therefore, presented the question, whether the defendant, who, with knowledge of the plaintiff's equitable title and lien upon the moneys due, had used his apparent authority to receive payment, and therein had effectually deprived the plaintiff of all other recourse for the money, to which he was equitably entitled, should be permitted against good conscience to retain it. In principle, the case did not differ widely from that of an agent having a sufficient authority to receive money for his principal, which, as between him and such principal, had been revoked, using his apparent *Page 461 authority to collect from a debtor, who has received no notice of such revocation.
The case of the N.Y. Ins. Co. v. Roulet (24 Wend., 505), was decided upon grounds closely analogous, viz.: That the United States, although they paid over the moneys claimed, to the insurance company, did so avowedly upon their apparent title, and with a clear intent to leave the parties afterward to distribute the money, or contend with each other, in respect to the proper title thereto, in the appropriate tribunals. The commissioners of award having no convenient means of settling the rights of claimants inter sese. In this view, there was no hostile payment or collection of the money, but the whole inquiry was left open for the establishment of such trust or other title, legal or equitable, as might exist.
In neither Munsell v. Lewis (2 Denio., 244), nor Allen v.Aguirre (3 Seld., 543), was the point now under consideration, and to which they are cited, raised or discussed. In the former, the question was between an assignee and his assignor, who, after the assignment, received a gratuitous award of moneys from the State, and the whole question was, whether such award properly belonged to him or enured to the benefit of his assignee. The court were of opinion that his assignment conferred the equitable title to all benefits accruing by reason of the assigned contract, and therefore, although he had legal authority to receive the moneys awarded, he must be deemed to have received them to the use of his assignor, and the latter of the cases last named, the defendants on the sale of goods had agreed that the plaintiff should have the return duties awarded to them. Their collection of those return duties was therefore upon clear authority, and the payment to them was a complete discharge of the government, and it was the distinct enforcement of the defendant's undertaking, and nothing more, to hold them responsible to the plaintiff for the money they had agreed the plaintiff should have.
I do not think it profitable to review all the cases cited by the appellant. The books are full of general expressions *Page 462 broad enough to sustain the equitable action for money had and received, wherever it seems just that the plaintiff should recover it, or that "it lies wherever one man has money that another ought to have;" and yet this idea of what is agreeable to equity and good conscience, is not to override every other legal principle governing the rights and responsibilities of parties; and such expressions are to be considered with reference to the cases to which they are applied. Thus the decision in Pierce v.Crafts (14 J.R., 41), was, that the holder of a note payable to bearer may recover against the maker under a declaration for money had and received to his use. A decision of little bearing on the present case. The court, however, use this language in discussing the broad scope and equitable nature of the action in that form: "If a man without any authority receive money due to me, I may recover it of him in this form of action," which amounts to this: If a man on pretence of authority receives money due to me, he must pay it over, and the law implies a promise to pay it over to me. I may hold him to the agency which he asserted when he collected money due to me. This general expression is far short of an assertion that he who receives money as his own from one who pays it to him as his own; both, in terms, denying my right to the money at all, can be said to hold it under any implied trust or promise to pay it to me.
Without pursuing the cases cited further, it must suffice to say that none of them in my judgment, conflict with the case ofSargeant v. Stryker, decided in the Supreme Court of New Jersey, and to the same effect as Patrick v. Metcalf, in this court. In that case, the distinction to which I have referred is stated and illustrated, and the subject fully discussed. The sheriff of Hunterdon county, had offered a reward for the apprehension of an escaped prisoner. He was apprehended. The defendants (plaintiffs in error) applied to the sheriff and claimed the reward, and upon their representation that they had taken the prisoner, the sheriff paid to them the amount of the reward he had offered. The plaintiff (defendant in *Page 463 error) had in fact made the arrest, and on learning that it had been paid to the defendants, brought his action against them in the form of the present, viz., for so much money had and received to his use.
The proof showed negatively that the sheriff did not pay the money to them for the plaintiff nor on his account, but that they claimed it as their own, and he paid it, supposing them to be entitled to it. Hence, the element of fraud or false representation entered into the means by which the defendants obtained the money; there was no possible question but that they had no scintilla of title or equity in their favor. Still the court held that the plaintiff could maintain no action against them; their receipt of the money and their fraud, or misrepresentation were matters between them and the sheriff, not prejudicing the plaintiff's claim on the sheriff and not enuring in anywise to the plaintiff's benefit. The decision reversing a judgment for the plaintiff rendered in the court below, was pronounced after the expression of a strong desire for the sake of justice to sustain the action in that particular case.
The principle of the decision is in accordance with the case in this court; viz.: Where a defendant has received moneys due to the plaintiff, but claiming it as his own under circumstances in which he has no authority from the plaintiff, and does not act under any pretence of such authority, and the payment to him is made in proposed recognition of his title thereto as his own, and does not operate to discharge the payor from his liability to the plaintiff, then and in such case there is no trust and no implied promise to pay the money to the plaintiff.
This is entire harmony with a class of cases prominently suggested by the counsel for the appellant, viz., were fees are collected by an officer de facto. He may be proceeded against by the officer de jure, as for so much money had and received to his use. Why? Because he has received them by color of authority, and those who paid had a right to pay them, and are protected in making such payment. *Page 464
I think the defendant was not entitled to the money, and that it would be conformable to every sense of what is just (in view of the difficulty at least of obtaining the money from the United States), if the defendant were required to pay over the money to the plaintiff. But I am unable to find satisfactory grounds upon which to sustain the action consistently with what I deem settled principles; and I conclude, therefore, that without attaching any importance to the decisions of the auditor or comptroller as adjudications between these parties, the judgment must be affirmed on the ground that the money collected by the defendant was not money which in law or in equity can be deemed received by him to the use of the plaintiff.
The judgment must therefore be affirmed.
All the judges concurring, judgment affirmed.