cover of the wrong doer in assumpsit, in a 19. Instances given where a person is vircount for money had and received. Burnap tually made liable in assumpsit for a tort. v. Partridge, 3 Vt. 144. Scott v. Lance, 21 Center Turnpike Co. v. Smith, 12 Vt. 212. Vt. 513. Stearns v. Dillingham, 22 Vt. 624. 20. Other cases. C, an apparent agent Phelps v. Conant, 30 Vt. 277. Elarell v. Mar- of the defendant, used the plaintiff's railroad tin, 32 Vt. 220. Kidney v. Persons, 41 Vt. ties, without license from the plaintiff, in the 386. Turnpike Co. v. Smith, 12 Vt. 217. repair of the defendant's railroad; and after10. But it must appear that the defendant wards agreed with the plaintiff that the defendhas actually received money to the use of the ant should pay for them; to which the plaintiff plaintiff, or that he has received that which he assented, supposing C to have authority to purconsidered as equivalent thereto and accounted chase ties for the defendant. C in fact had not for it as such. Williams, J., in Burnap v. such authority. Held, that the plaintiff could Partridge, 3 Vt. 146. recover in assumpsit. Beecher v. Grand Trunk R. Co., 43 Vt. 133. 11. As, a promissory note or negotiable paper, or the satisfaction of a money demand. Prout, J., in Kidney v. Persons, 41 Vt. 392. 21. Where the plaintiff paid the defendant money upon a note, and the defendant failed to 12. The conversion into money may some- indorse the payment, and afterwards denied times be presumed as matter of fact, as where having received the money and claimed the other property has been received which is sal- whole note;-Held, that the defendant was able and time has elapsed without accounting liable for the money paid in indebitatus assumpfor it; and perhaps where the property was sit. Eastman v. Hodges, 1 D. Chip., 101 (1797). disposed of at a fixed price, or was purchased 22. Assumpsit lies against a bank, after for the purpose of selling again, and sufficient notice and demand, upon a bill of the bank destime has elapsed for that purpose and it is not troyed, but not upon a bill lost. Ross v. Bank otherwise accounted for. Williams and Prout, of Burlington, 1 Aik. 43. J. J., supra. Flower Brook Mfg. Co. v. Buck, 23. If one decoy another from a foreign 18 Vt. 238. government, under promise not to sue or arrest 13. But where the defendant has received him, and in violation of his faith he does sue, no money, as where he wrongfully sold the or arrest him, the process may be avoided for plaintiff's property and took his pay in a har- the fraud; or assumpsit will lie for such breach ness, such action will not lie. Kidney v. Per- of promise to recover just damages. But if, sons, 41 Vt. 387. instead of avoiding the process for the fraud, 14. Under a count for money had and re- he pleads to the action and judgment passes ceived from the sale of timber wrongfully cut against him, he cannot in such action of assumpand converted, where the plaintiff's claim was sit include as damages the amount of such judgonly to recover the net proceeds, or the value ment. Steele v. Bates, 2 Aik. 338. of the "stumpage";-Held, that there could be 24. The defendant received of the plaintiff no recovery where the defendant had not re- an absolute deed of land, but with the parol unceived enough to pay the expense of cutting derstanding that it should be sold, if necessary, and marketing the timber. Lemington v. and the avails applied towards the discharge of Stevens, 48 Vt. 38. a liability assumed for the plaintiff. The de 15. One cannot of his own mere motion fendant went into possession of the land, treatwaive a tort and sue therefor in assumpsit, or ed and used it as his own absolutely, neglected on book account. Thus, he cannot convert a a favorable opportunity to sell it, and compelltrespass upon his lands by the defendant's sheep, ed the plaintiff to discharge out of other properinto a charge for pasturing the sheep. Stearns ty such assumed liability. The plaintiff brought v. Dillingham, 22 Vt. 624. this action of assumpsit for land sold, and on 16. Nor recover in this action or in book the trial the defendant claimed that the transacaccount for a quantity of manure taken and appropriated under a claim of right, beyond the amount which the defendant had a license to take. Scott v. Lance, 21 Vt. 507. tion was an absolute sale, and that he had paid for the land. Held, that the defendant, this claim failing, could not also set up the trust character of the transaction as a defense, but 17. Nor, in an action on book, for money that the plaintiff was entitled to recover the delivered to the defendant only to be carried value of the lands, with interest from the time by him to a third person, which the defendant of the discharge of the liability assumed by the received for that purpose, and agreed but defendant for the plaintiff. Crane v. Thayer, neglected to deliver. Drury v. Douglas, 35 18 Vt. 162. Vt. 474. 25. Trusts. Matters of trust are of original 18. Otherwise, where the money is received and special equity jurisdiction, and assumpsit to be used for the benefit of the plaintiff, and does not lie to recover money held in trust, to be accounted for. Whiting v. Corucin, 5 Vt. where parties not on the record are interested in 451, the distribution. Congdon v. Cahoon, 48 Vt. 49. 26. Common money counts. The plain- $100 expected to be received from the U. S., tiff, under a parol contract with the defendant but which was not paid, nor payable under the for the purchase of lands subject to a mortgage U. S. regulations, to such substitute. Glover but to be of no effect if the defendant did not v. Greenlaw, 38 Vt. 182. 32. The defendant having bargained with obtain full title thereto, paid a part towards the purchase. The defendant suffered the land to N for the purchase of his farm, stock and pro. pass on a foreclosure of the mortgage. Held, duce, but taking no deed, agreed with the plainthat the plaintiff could thereafter recover the tiff by parol, that they together would carry sum so paid, in an action of general indebitatus out the contract with N, sell the property in a assumpsit, without demand. Way v. Raymond, short time, and divide the profits. The plain16 Vt. 371. tiff advanced money to the defendant to be 27. Where a judgment, after being paid by paid to N towards the property, and assisted in the defendant therein, was reversed on writ of the transaction. The property was all sold in error;-Held, that an action for money had and the name of N, but under the direction of the received did not lie against the plaintiff in that defendant, the purchasers taking their deeds suit where he was, to the knowledge of the de- direct from N. The proceeds were received by fendant therein, a mere nominal party-the suit the defendant, and there was a balance of being prosecuted wholly for the benefit of a profits in his hands. In an action of assumpsit third person, and where the judgment was paid to recover the one-half of such profits;-Held, to such third person, and not to the plaintiff. 1st, that such action would lie; 2d, that the Catlin v. Allen, 17 Vt. 158. contract was upon sufficient consideration; 3d, that it was not within the statute of frauds. Bruce v. Hastings, 41 Vt. 380. 28. Under the statute (G. S. c. 20, s. 6) providing that a town may (under certain circumstances), "by an action," without specifying what form of action, recover of the town where a pauper was last legally settled, the expenses of maintaining such pauper;-Held, that general indebitatus assumpsit was a proper action. Pawlet v. Sandgate, 19 Vt. 621. 33. Under a parol agreement, that if the plaintiff would work upon the defendant's farm and aid in paying off incumbrances the defendant would deed to the plaintiff the farm (or a part of it), where the plaintiff performs on his part and the defendant refuses to convey, 29. The plaintiff's clerk, having authority or if there is a mutual abandonment of the to borrow money on the credit of the plaintiff contract, the plaintiff may recover for his serto be used in the plaintiff's business, borrowed vices and money paid, on the common counts in a sum on the plaintiff's credit with the intent, assumpsit. Stone v. Stone, 43 Vt. 180. Graham unknown to the lender, to use the same in gam- v. Chandler, 38 Vt. 559. bling, and lost the same, together with other 34. Where money was deposited with the money wrongfully taken from the plaintiff's clerk for a defendant in a petition of foreclosstore, in gaming with the defendant. Held, ure, as a condition imposed by order of the that all this was the plaintiff's money illegally chancellor for the passing of a decree, and the obtained and held by the defendant, and that decree was taken and the money paid over to the he was liable therefor to the plaintiff in assump-defendant, it was held, that the plaintiff's obvious sit, as for money had and received. Burnham misadventure in the foreclosure suit could not v. Fisher, 25 Vt. 514. be corrected in an action of assumpsit to recover 30. Assumpsit for money had and received back the money. Sweet v. Tucker, 43 Vt. 355. lies to recover back money paid upon a false 35. General assumpsit lies to recover the claim, not made in good faith, nor supposed to consideration paid for the purchase of property, be right, if there is duress, or any undue advan- where the sale is avoided for fraud, or where tage taken of the payer's situation, or if paid the consideration entirely fails. James v. Hoasunder the terror of inceptive legal proceedings, den. 47 Vt. 127. 28 Vt. 370. fraudulently instituted. Sartell v. Horton, 36. Indebitatus assumpsit for money lent was held to lie upon a due bill of the following 31. General indebitatus assumpsit on the tenor: "Due F. H. eighty dollars on demand." common money counts:-the plaintiff's evi- Hay v. Hide, 1 D. Chip. 214. dence was, that the defendants agreed to pay 37. Where the plaintiff, being surety for a him $300, in consideration that he would be- third person, paid the debt upon the guaranty come a substitute for a drafted man. The de- of the defendant that he would see the debt fendants' evidence was that they would pay paid and save the plaintiff harmless therefrom; him $100, and that he should have in addition -Held, that a recovery could be had under the the bounties which might be paid by the State common count in assumpsit for money paid at of Maine and the United States, understood by the defendant's request. Lapham v. Barrett, both parties to be $100 each. Held, that if the 1 Vt. 247. contract was as claimed by the defendants, the 38. (Money's worth). The plaintiff, being plaintiff could not recover in this action the surety for the defendant, gave his own note for the amount which the creditor received as pay-[to him as heir. Held, that he was liable to the ment. Held, that this was equivalent to the plaintiff therefor in assumpsit for money had payment of so much money, and sustained a and received;-that no action lay upon the count for money paid. Lapham v. Barnes, 2 deed, but it was evidence in this action to show Vt. 213. the plaintiff's right to the money. Colgrove v. 39. Where, on the dissolution of a partner-Fillmore, 1 Aik. 347. ship between the plaintiff and the defendant, 46. The plaintiff conveyed land to the dethe defendant retained a portion of the partner-fendant in trust to sell, and, out of the avails, ship assets sufficient to pay a particular partner- to indemnify himself against certain liabilities, ship debt, and agreed with the plaintiff to pay and account. He sold the land in part upon it, and the plaintiff was afterwards obliged to credit, by consent of the plaintiff, taking a note pay that debt;-Held, that the plaintiff could therefor payable to his own order, the cash payrecover for the amount so paid upon the com- ment not being sufficient for his indemnity. mon money counts in assumpsit-such assets Held, that until the money was received upon being treated as money's worth, and fairly pre- the note, or at least until expiration of the sumed to have produced money. Hicks v. Cot-time of credit, the defendant was not liable on trill, 25 Vt. 80. a count for money had and received. Beach v. 40. The defendant authorized the plaintiff | Dorwin, 12 Vt. 139. to settle a suit pending against him by a third 47. The county of W being about to build person, and pay $12 therefor; and he settled a court house, the plaintiff, being interested in the same by giving his own note for $13, and the question of location, signed a subscription the claim was discharged. Held, that the de- paper, promising to pay a certain sum to the fendant had received money's worth, and that the plaintiff could recover in assumpsit, on the count for money paid, $12, without proof of payment of the note. Houston v. Fellows, 27 Vt. 634. 41. Indebitatus assumpsit for money had and received was held not to lie to recover interest accrued on the plaintiff's execution against the defendant, which the plaintiff had forborne to collect at the defendant's request, and on his promise to pay such interest. Beedle v. Grant, 1 Tyl. 433. (1802.) defendant "for land sufficient to set a court house upon," provided the court house should be located in the particular place specified. The defendant thereupon conveyed to the county the land specified, by a deed satisfactory to the locating committee, containing a clause that the land should revert to him whenever the county should voluntarily cease to occupy it as a site for a court house. After this deed was recorded the plaintiff paid his subscription. The court house was erected on the spot, and in about two years was consumed by fire. The county then determined to abandon that site and not rebuild upon it, unless the entire lot could be procured without expense to the county; and another subscription was raised 43. Assumpsit for money had and received and the whole lot purchased, the defendant getdoes not lie to recover back money voluntarily ting on this second purchase a price equal to paid upon a note given in consideration of a the value of the entire lot at the time of the contract to build a house, which has not been first purchase. In an action of assumpsit for performed. Rollins v. Walker, Brayt. 222. money had and received to recover back the 44. G drew an order on B, in whose hands amount of his subscription;-Held, that here he had property for sale, in favor of S for a cer- was no fraud, mistake, or failure of consideratain sum. B declined to accept the order, but [tion which entitled the plaintiff to recover. promised S, if the order was left with him, to Barnes v. Baylies, 18 Vt. 430. 42. An order drawn by the plaintiff on a third person in favor of the defendant, is competent evidence under a count for money had and received. Phelps v. Mott, Brayt. 76. pay on account of it any balance, not exceeding 48. A writing in these words: "For value that amount, which might remain in his hands received of Cummings & Manning, or order, after his own claims should be satisfied. S ac-thirty dollars and eighty-three cents on demand cepted the promise and left the order with B. and interest annually," signed by the defendHeld, that after the subject matter of the ac-ant, was held to express with proper certainty, counts between G and B was closed so that the that the defendant had received money of the balance could be ascertained, and after demand, B was liable to S on a count for money had and received. Sutton v. Burnett, 1 Aik. 197. plaintiffs to the amount of $30.83, and was sufficient to sustain a count for money had and received; and it seems, the omission in the note might be supplied by intendment. Cummings 45. The defendant by deed, without covenants, and for "a valuable consideration," as v. Gassett, 19 Vt. 308. expressed, conveyed to the plaintiff all the 49. Assumpsit for money had and received right, title, interest and claim which he, as heir, is "an appropriate action" to recover back had in the estate of his ancestor deceased. He money paid for liquors sold in violation of law. afterwards received certain moneys distributed (G. S. c. 94, s. 32). Laport v. Bacon, 48 Vt. 176. In 50. The plaintiff sought to recover a balance | 59. The plaintiff and her daughter occupied due him on settlement, and also an additional a homestead left by the plaintiff's husband at sum paid to defendant as usurious interest and his decease, but not set out by the probate allowed in the settlement. Held, that this could court. In the plaintiff's absence from home, not be done on the basis of an account stated, the defendant married the daughter and moved for the defendant had never agreed to the larger upon the place and continued to occupy it, resum, and it could not be assumed that he would fusing, on demand, either to buy it, leave it, or have done so if the plaintiff had refused to to pay rent, but offering to let the plaintiff ocmake the allowance he did. Rowell v. Marcy, cupy with him, which she declined to do. The 47 Vt. 627. plaintiff then brought ejectment, which failed 51. The plaintiff contracted by parol with for want of proof of proper notice to quit. the defendant for the lease of the defendant's assumpsit for use and occupation, the court tavern house for one year from a future day directed a verdict for the plaintiff. Held, named, and delivered to the defendant a watch erroneous, and that the case should have been in part payment of the agreed rent. The de- submitted to the jury, to find whether or not fendant afterwards refused to carry out the an implied contract of tenancy existed. Chamagreement, and tendered the watch back to the berlin v. Donahue, 44 Vt. 57. plaintiff, which the plaintiff refused to receive, 60. Indebitatus assumpsit for use and occuand brought his action of assumpsit to recover pation does not lie upon a contract for agistfor the watch. Held, that the title to the watch ment, where the plaintiff retains possession of vested in the defendant by the contract, and the land. Howard v. Ransom, 2 Aik. 252. that it did not become re-vested in the plain- 61. To recover for use and occupation, the tiff by the tender; and that the defendant was declaration must be appropriate for such claim, liable therefor as for goods sold. Harley v. |—as, a count for use and occupation. It cannot Moody, 24 Vt. 603. be recovered under a count for money had and received. Beach v. Dorwin, 12 Vt. 139. 52. No recovery can be had upon the money counts in assumpsit, against one who acted as 62. Under the common money counts, the known agent of the owner in the sale of lands, indorsee of a negotiable promissory note may where the money was paid by the plaintiff recover against the maker. Chase v. Burnham, directly to such owner. Dyer v. Graves, 37 13 Vt. 447. Brigham v. Hutchins, 27 Vt. 569:--Vt. 369. although the indorsee be one of the payees 53. for use and occupation. Assump- and the note is indorsed by the payees in blank. sit for use and occupation will lie upon a con- Malley v. Weinman, 48 Vt. 180. tract expressed or implied, where a tenant 63. An action cannot be sustained upon the enters and enjoys the premises by the consent money counts by the introduction of a promisor permission of the owner. Howard v. Ran-sory note not due at the commencement of the som, 2 Aik. 252. suit. This would be absurd. Harrington v. 54. Where the holding is by the permission Rathbun, 11 Vt. 58. of the owner, an implied undertaking to pay rent may be inferred from slight circumstances. Watson v. Brainard, 33 Vt. 88. 55. Dictum. The mere fact of occupancy, might create a presumption of tenancy, prima facie, but subject to be rebutted. Keyes v. Hill, 30 Vt. 759. 56. Assumpsit for use and occupation will not lie, unless there is a contract, express or implied, in regard to the occupancy of the premises, by which the relation of landlord and tenant (substantially) is created between the parties. Hough v. Birge, 11 Vt. 190. Keyes v. Hill, 30 Vt. 759. Stacy v. Vt. Central R. Co. 32 Vt. 551. 44 Vt. 59. Watson v. Brainard, 33 Vt. 88. 64. Special counts. Where there is a special contract, so long as the parties profess to proceed under it there can be no recovery in general assumpsit, nor in the action of book account, for any labor performed under it, but the remedy must be upon the contract. Camp v. Barker, 21 Vt. 469. Myrick v. Slason, 19 Vt. 121. 65. Damages sustained by the non-performance of an executory contract for the purchase of property, cannot be recovered under the general money counts in assumpsit. Hemenray v. Smith, 28 Vt. 701. 66. Where a contract is for the manufacture and delivery of an article at a future day, and the party is prevented from completing his 57. It will not lie where the defendant's pos-contract by the fault of the other party, he cansession was under a contract of purchase, which not recover as for goods sold and delivered, or failed without his fault. Hough v. Birge. Way for work and labor and materials furnished, v. Raymond, 16 Vt. 371. 44 Vt. 59. under the general counts in assumpsit, but is out to a special count to recover his damages or breach of the special contract. Thrall, 36 Vt. 711, Curtis v. Smith, 48 Vt, 58. Nor where it was under a claim, or agreement to procure the title by proceedings in invitum under a statute. Stacy v. Vt. Central R. Co., 32 Vt. 551. 116. Allen v. 67. A declaration in assumpsit need be spe-| 73. Pleading. In an action on simple concial, only when the plaintiff claims damages for tract, a plea denying any consideration is bad the breach of a special contract. Whatever on special demurrer, as amounting to the genstipulations may have been made about the eral issue. University of Vt., &c., v. Baxter, 42 price, mode or time of payment, if the terms Vt. 99. have transpired so that money has become due, S. 74. Declaration held bad on demurrer for and nothing remains to be done under a special not setting forth a valid consideration for the contract but to pay money, the general counts defendant's promise; also for stating that the are sufficient. Way v. Wakefield, 7 Vt. 223. defendant verbally promised, in a case required Mattocks v. Lyman, 16 Vt. 113. C. 18 Vt. by the statute of frauds to be in writing. Peo98. Perry v. Smith, 22 Vt. 301. Groot v. ple's Bank v. Adams, 43 Vt. 195. Story, 41 Vt. 533. Wainwright v. Straw, 15 Vt. 215. Kent v. Bowker, 38 Vt. 148. Wilkins v. Stevens, 8 Vt. 214. 75. A declaration in assumpsit upon a warranty alleging a breach, but concluding in the common form of a count in indebitatus assumpsit for money had and received, was held sufficient on motion in arrest, by rejecting such conclusion as surplusage. Parlin v. Bundy, 18 Vt. 582. 68. In this State it has been repeatedly and uniformly held, that where goods are sold, or services performed under a special contract for payment in other goods, or in services, and the time of payment has elapsed, and payment has 76. Where a judgment is set aside on audita not been made according to the contract, such querela, the money collected on the execution is special agreement is no obstacle to a recovery embraced and recoverable under the general ad in general assumpsit or by an action of book damnum of the writ. Alexander v Abbott, 21 account. Poland, C. J.-and so held in Kent Vt. 476. v. Bowker. Way v. Wakefield. Stearns v. Haven, 16 Vt. 87. Mattocks v. Lyman. Porter v. Munger, 22 Vt. 191. Stevens 77. In declaring upon a contract payable in such goods as the plaintiff should want, it is not sufficient to aver a general demand; but it 69. Issue and evidence. In assumpsit, should be averred that the plaintiff designated declaring in one count upon a special contract the goods he wanted, or else that he waived his and adding the general counts, a demurrer was right to select and authorized the defendant to sustained to the special count. On trial under deliver such as suited his convenience. the common counts;-Held, that the special v. Chamberlin, 1 Vt. 25. contract could not be read in evidence, for that 78. In an action declaring specially upon a it did not support the general counts. Culver certificate of deposit made payable "on the v. Barnet, 1 Tyl. 182. presentation of this certificate," there was no 70. Where the declaration contained a spe- averment of a demand by presentation of the cial count upon a contract and also the common certificate. The declaration was held ill on money counts, and the special count and the general demurrer. Bellors Falls Bank v. Rutproof only tended to show that the plaintiff had land Co. Bank, 40 Vt. 377. advanced his money at the defendant's request 79. The plaintiff declared upon a special and for his benefit, upon a promise of being re-contract of the defendants, that "for a certain imbursed in a particular manner at a day cer- reasonable hire and reward to be thereupon tain, and that time had expired;-Held, that a paid by the plaintiff to the defendants in that recovery could be had on the common counts, behalf," they would furnish a railroad car for although the contract set up in the special the carriage of certain sheep of the plaintiff and count might not be proved as laid. Sterens v. would carry them therein, &c., and alleged, as Talcott, 11 Vt. 25. a breach, the refusal to furnish the car. On 71. In assumpsit for services performed motion in arrest ;-Held, that the contract was under a special contract and for damages for susceptible of the interpretation, that the plainimproperly discharging the plaintiff ;-Held, tiff's promise was to pay for the car and freight that under the general issue evidence was ad- at the end of the carriage, and that therefore missible for the defendant, both as tending to the declaration was sufficient without averring show a good cause for such discharge and to a readiness to pay the freight at the time of dereduce the value of the plaintiff's services, that manding the car. Waterman v. Vt. Central it was part of the contract of hiring that the R. Co., 25 Vt. 707. plaintiff should act as foreman of the defendant 80. Where the time of payment mentioned in his absence and keep his men industriously in any written contract, not under seal, is enat work, whereas the plaintiff had induced the men to neglect their work and to lose time. Stoddard v. Hill, 33 Vt. 459. 72. In assumpsit part payment need not be specially pleaded. Britton v. Bishop, 11 Vt. 70. (Changed by G. S. c. 33, s. 15.) larged by agreement, it is sufficient, in declaring upon such contract, to allege the non-payment according to the contract, without noticing the agreement to enlarge the time; and if pay ment was in fact made according to the enlarged time, the defendant is left to show the agree |