other person at the instance of the agent of the holder, but without the knowledge and assent of the makers, guaranteed the bond by indorsing upon it "This is a good bond," and signing his name, it was held that he could not, upon being compelled to pay the bond, recover from the surety as for money paid to his use, because he was not a regular indorser, and having become a guarantor without any express request from the makers, the law would not imply a request, and the payment of the bond under compulsion was of his own seeking, and so far as the makers were concerned, gratuitous and officious. So, the defendant may show that the plaintiff paid the money after suit brought when he knew that there was, or might be a defense against the claim, and did not call him in to defend the action. Thus, it was held in Barmon v. Lithauer, 1 Abb. Ct. App. (N. Y.) 99, that, where one who has paid his creditors a note held by them, on their promise to surrender the note, but which was not done, was afterward sued upon the note by a third person, it was his duty to call upon the original creditors to defend the suit, and that, upon his failure to do so, judgment goes against him by reason of his own neglect to successfully defend the action; he is not entitled to recover from the original creditors the amount paid in satisfaction of the judgment, and also that the fact that he called one of them as a witness in the action was not equivalent to giving them the necessary opportunity to defend the action. This rule only applies, however, to that class of cases where the person paying the money is bound to know, or does know, that the persons to whom he must look for indemnity have, or may have, a defense to the action. Hutton v. Eyre, 6 Taunt. 289; Dawson v. Morgan, 9 B. & C. 618. The defendant may show that he expressly notified the plaintiff not to pay the claim, and if he pays it against such notice, he cannot recover the amount as for money paid at the defendant's request, or to his use. Thus, in Stokes v. Lewis, 1 T. R. 20, it was held that an action for money paid would not lie under such circumstances; as, where two parishes had been for a long time united, and had jointly paid one sexton, but afterward, one of them gave notice to the other that they intended to elect a separate sexton. But the other parish went on as usual and brought an action to recover of the other their quota of the expense. The court held that the money, being paid contrary to the express notice of the defendant, could not be recovered as for money paid to its use, because there was no request, but a complete withdrawal of any former request. The court in Ege v. Koontz, 3 Penn. St. 109, expressed the rule admirably, thus "A person will not be allowed," says the court, "gratuitously to alter the position of another, and affect his rights and liabilities

by voluntarily assuming to understand his own legal duties, and after paying a claim on the footing of such assumption, to draw it into question upon the allegation of a mistake of his duty." It is a complete defense to an action for money, paid by a surety by the sale of his goods upon an execution issued upon a judginent upon the obligation, that the goods had been sold by the surety before their sale upon execution, and that subsequently to the sale on execution they were recovered by him of the vendee at such sheriff's sale (Head v. McDon ald, 7 Monr. [Ky.] 205); or that the money paid was not the plaintiff's (Goepell v. Swinden, 1 Dowl. & L. 888); and particularly is this so if the money paid belonged to the defendant as much as it did to the plaintiff, or if he was at the time indebted to the defendant in a sum sufficient to cover the sum paid. Id.

CHAPTER XCVIII.

MONEY RECEIVED.

ARTICLE I.

OF MONEY RECEIVED, IN GENERAL.

Section 1. Nature of the action. An action of assumpsit for money had and received is an equitable remedy that lies in favor of one person against another, when that other person has received money either from the plaintiff himself or third persons, under such circumstances, that in equity and good conscience he ought not to retain the same, and which, ex aequo et bono, belongs to the plaintiff. Buel v. Boughton, 2 Denio, 91; Lockwood v. Kelsea, 41 N. H. 185; Mason v. Waite, 17 Mass. 563; Tevis v. Brown, 3 J. J. Marsh. (Ky.) 175; Irvine v. Hanlin, 10 S. & R. (Penn.) 219; Eagle Bank v. Smith, 5 Conn. 71; Eddy v. Smith, 13 Wend. 488; Spottswood v. Herrick, 22 Minn. 548; Knapp v. Hobbs, 50 N. H. 476; Tamm v. Kellogg, 49 Mo. 118; Puckett v. Roquemore, 55 Ga. 235; Laport v. Bacon, 48 Vt. 176; Stuart v. Sears, 119 Mass. 143; Grant Co. v. Sels, 5 Oreg. 243; Saline Co. v. Wilson, 61 Mo. 237; Varney v. Hathorn, 65 Me. 481; Perley v. County of Muskegon, 32 Mich. 132; 20 Am. Rep. 637; McDonald v. Lynch, 59 Mo. 350; Robinson v. Ezzell, 72 N. C. 231; Meek v. McClure, 49 Cal. 624; Briggs v. Boyd, 56 N. Y. (1 Sick.) 289; Calais v. Whidden, 64 Me. 249; Allen v. Stenger, 74 Ill. 119. But in order to maintain the action, either an express or an implied promise to pay it to the plaintiff must be shown. Bloomer v. Denman, 12 Ill. 240; Whitehead v. Peck, 1 Ga. 140. It is not, however, essential that any privity of contract should be shown; if the plaintiff's right to the money is established, and the defendant is shown to have received it under such circumstances that he ought not to retain it, the law implies a promise to pay it to the party who ought to have it. Calais v. Whidden, 64 Me. 249; Mason v. Waite, 17 Mass. 563; Eagle Bank v. Smith, 5 Conn. 71; Colgrove v. Fillmore, 1 Aik. (Vt.) 347. Thus, where money is paid by one upon a judgment that is subsequently reversed, it may be recovered back (Lott v. Swezey, 29 Barb. 87), the

law implying the requisite promise to repay it to the party who paid it. Garr v. Martin, 20 N. Y. (6 Smith) 306. So, where a person has paid money upon a consideration that has failed (Smith v. MeCluskey, 45 Barb. 610; Hotchkiss v. Judd, 12 Allen, 447; Allen v. Citizens, etc., Co., 22 Cal. 28; Lyon v. Annable, 4 Conn. 350; Jewett v. Lawrenceburgh, etc., R. R. Co., 10 Ind. 539; Leach v. Tilton, 40 N. H. 473; Steele v. Hobbs, 16 Ill. 59); or that is void for illegality or other cause, the law implies a promise on the part of the person to whom, or to whose use it was paid, to refund it. Cross v. Bell, 34 N. H. 83; Leonard v. Canton, 35 Miss. 189; Page v. Einstein, 7 Jones' (N. C.) L. 147; Mobile Branch Bank v. Collins, 7 Ala. 95; Richards v. Allen, 17 Me. 296; Brown v. Timmany, 20 Ohio, 81; Pepper v. Haight, 20 Barb. 429. But, where the ground of recovery is the illegality of the consideration at the common law, in order to uphold the action, the plaintiff must show that he is not in pari delicto with the defendant. If he is shown to have been in equal fault with the defendant, the law will not imply a promise to repay the money, or in any wise afford him any relief. Barnard v. Crane, 1 Tyler (Vt.), 457; Liness v. Hesing, 44 Ill. 113; Jacobs v. Stokes, 12 Mich. 381; Perkins v. Savage, 15 Wend. 412; Burt v. Place, 6 Cow. 431; Knowlton v. Congress, etc., Spring Co., 57 N. Y. (12 Sick.) 518; Commissioners of Catawba v. Setzer, 70 N. C. 426; Lusk v. Patton, 70 id. 701.

In any event, in order to maintain the action there must be money in the defendant's hands to which the plaintiff is immediately entitled (Maddox v. Kennedy, 2 Rich. [S. C.] 102; Wilder v. Aldrich, 2 R. I. 518; Shepard v. Palmer, 6 Conn. 95; Morrison v. Berkley, 7 S. & R. [Penn.] 246; Beardsley v. Root, 11 Johns. 464; Barlow v. Stalworth, 27 Ga. 517; Willie v. Green, 2 N. H. 333; Wheat v. Norris, 13 id. 178); or if it is property, that the property has really been converted into money before suit brought, or that it was received in lieu of money. Dean v. Mason, 4 Conn. 428; Kearney v. Tanner, 17 S. & R. (Penn.) 94; Moyer v. Shoemaker, 5 Barb. 319; Wheat v. Norris, 13 N. H. 178, Beals v. See, 10 Penn. St. 56; Hill v. Kennedy, 32 Ala. 523; Johnson v. Haggin, 6 J. J. Marsh. (Ky.) 581; Turner v. Egerton, 1 G. & J. (Md.) 433; Hemmenway v. Bradford, 14 Mass. 121. If money is paid to an agent for his principal, or if money is given by one to another to keep for him, and the agent or depositary deposits it in bank in his own name, the principal may recover it of the bank in this form of action. Calland v. Loyd, 6 M. & W. 26. But if an agent or depositary pays out the money of the principal for goods, or upon his own debts, the principal cannot recover the

same of the person to whom it was paid, unless such person knew that the money belonged to the principal and parted with no consideration for it. Ely v. Norton, 3 Keyes (N. Y.), 397; 2 Abb. Ct. App. 19.

§ 2. When it lies for money. Whenever a person has money in his possession, however he may have come by it, that belongs to another, and which, ex æquo et bono, he has no right to retain, the person to whom it belongs may maintain an action for it, as for money had and received. Thus, where a person has purchased property from one who had no title thereto, and has sold it and converted it into money, the true owner may maintain an action for money had and received, instead of an action for the property or its value. But in such case his recovery would be limited to the sum actually received for the property irrespective of its actual value. Knapp v. Hobbs, 50 N. H. 476. In the case last cited, the defendant took an ox to market at the request of the owner, and having sold it and received the money therefor, paid it over to the owner. The ox was in fact mortgaged at the time to the plaintiff, who brought an action against the defendant for money had and received, and it was held that it was maintainable, although the defendant acted in good faith and in ignorance of the plaintiff's mortgage. When a person not having title to property sells it and receives the money therefor, the true owner may recover the amount received by him, in this form of action. Tamm v. Kellogg, 49 Mo. 118. The action does not lie except for money due absolutely without qualification or conditions. Ralston v. Bell, 2 Dall. (Penn.) 242. Thus, where au agent, executor, or other person intrusted with property to be sold for the benefit of another, the person for whose benefit the property was sold cannot maintain an action for money had and received until the money is actually paid therefor. If it is sold upon credit, or is exchanged for other property, this action does not lie until the money is actually realized by the agent or other person making the sale (Ralston v. Bell, 2 Dall. [Penn.] 242; Langchamp v. Kenny, 1 Doug. 138); neither will it lie when the property has been sold in part for money and in part for other property. Weston v. Downes, 1 Doug. 23; Power v. Wells, 1 id. 24, n. 8. Thus, in the case last cited, the plaintiff gave a horse of his own and twenty guineas, for a horse of the defendant, which was warranted sound, but proved to be unsound. The plaintiff tendered back the horse and brought an action for money had and received for the twenty guineas, and also an action of trover for his own horse. The court held that neither action would lie, neither will the action lie when the money sought to be recovered was paid or received on a contract that is still open. Thus, where the defendant sold the plaintiff