not accounting, and not using due diligence in selling, &c. (m), where an agent has received the goods of his principal to sell for him, and there is no proof that they have been sold, or, if sold, that the agent has received the amount. But, as we have already observed, in some cases, a receipt of money, as the proceeds of goods, may be presumed (n). If B. sell a ship belonging to A., but held by B. as a security, and promise A. to account to him for the proceeds, and to pay the balance which should appear to be due, A. may, (notwithstanding the ship registry acts,) recover the balance from B., although B. is the sole registered owner of the ship (0). A principal who has lodged money in his agent's hands for an illegal purpose, may, before the money is so applied, countermand the agent's authority, and recover it back as money had and received to his use (p). It seems that an agent who receives money for the use of his principal cannot resist an action by the latter for the amount as received to his use, on the ground that the money was paid to the agent by the third party under an illegal contract between the latter and the plaintiff; as for instance, an illegal bet won by the plaintiff of the third person (q). An agent cannot dispute the title of his principal: and therefore, where a ship originally belonged to one of two partners, and had been conveyed to B. for securing a debt, and B. became the sole registered owner of the ship, and afterwards, as agent for both partners, insured the ship and freight, and charged them with the premiums, &c., and, on a loss happening, received the money from the underwriters; it was held that he was accountable to the assignees of the surviving partner for the surplus, after payment of his own debt; and not to the executor of the deceased partner, to whom the ship originally belonged (7). 7. Against Stakeholders.-If two persons respectively deposit money in the hands of a stakeholder, subject to the event of a legal wager, no part of the amount deposited can be recovered (m) See 2 Chitty, Pl. 5 ed. 342 to 350, and notes. (n) Ante, 476. (0) Prouting v. Hamond, Gow R. 41. Farmer v. Russell, 1 B. & P. 296; per Bailey, J., Hastelon v. Jackson, 8 B. & C. 224; 2 Man. & Ryl. 209. See Griffith v. Young, 12 East, 513. (r) Dixon v. Hamond, 2 B. & Al. 310. from him, except by the winner of the wager (s). A stakeholder is the agent of both parties, or rather their trustee. It is not, in the case of a stake or deposit upon a legal wager, competent to one party to rescind the agreement or wager, and claim his stake from the holder, as if the latter were only his agent as regards his stake, or proportion of the money deposited. But if the wager be illegal, either party, even the loser, may recover from the stakeholder the money he has deposited, whether the wager or event has been decided or not: provided he demand the return of his stake before the money has been actually paid over after the event to the winner (t). Although the wager be illegal, the stakeholder ceases to be liable if he pay over the stakes to the winner, without notice or dispute. If 4. deposit money in the hands of a stakeholder, until the extent of a demand which B. has upon A. can be ascertained, the stakeholder cannot legally pay the amount to B. upon his indemnity, without the consent of 4., before the claim upon the latter is ascertained; and if the stakeholder do so, A. may maintain an action for money had and received against him, without reference to B.'s demand (u). - 8. To recover Money paid on a failure of consideration. Where money has been deposited or paid on a contract, and before any benefit has been derived by the payer, or any part of the contract has been performed by the other party, the consideration wholly fails, an action may be maintained upon the common count to recover back the amount. Thus, if the purchaser of an (s) Brandon v. Hibbert, 4 Camp. 37; Bland v. Collett, id., 157. An auctioneer is a stakeholder in receiving a deposit upon the sale of property by auction, ante, 246. (t) Hastelow v. Jackson, 8 B. & C. 221. This was a wager on a boxing match, lost by the plaintiff, and he recovered his stake from the defendant (the stakeholder), he having claimed the amount before it was paid over to the winner. And see Hodson v. Terrill, Exch. T. T., 1833; which was an action to recover a sum exceed ing 107., paid to the defendant as stakeholder, to abide the event of a match at cricket, and which was held to be recoverable, as it was demanded before it was paid over. The Court said it was immaterial that the result of the match or game was unfavourable to the plaintiff. The prior cases are Cotten v. Thurland, 5 T. R. 405; Smith v. Bickmore, 4 Taunt. 474; Bate v. Carlwright, 7 Price, 540; Robinson v. Mears, 6 D. & R. 26. In Egerton v. Furzman, R. & M. 213, 1 C. & P. 613, S. C., Abbott, C. J., refused to try an action against a stakeholder to recover the stake deposited by the plaintiff on a dog-fight, and which the plaintiff claimed after the event was decided, but before the money was paid over. But as it was unnecessary to try the question which dog had won the fight, the plaintiff claiming only his stake, semble that the plaintiff was entitled to recover. See R. & M. 214, note. (u) Cowling v. Beachum, 7 Moor, 465 estate, &c., by auction or private contract, pay a sum of money as a deposit, or in part of the purchase money, and a good title cannot be made out according to the contract, the money may be recovered back upon the common count (v). It is also sustainable in such case if neither party is ready to complete the contract at the stipulated time, and each party is in default (w). money Where some act is to be done by each party under a special agreement, and the defendant, by his neglect, prevents the plaintiff from carrying the contract into execution, the latter may recover back money he has paid upon it, as money had and received to his use (x). As where the plaintiff bought cord-wood of the defendant, to be paid for on a certain day, and it was incumbent on the defendant to cut off the boughs and trunks, and then cord it, and for the plaintiff to re-cord it, but the defendant neglected to cut and cord the whole of it in time; it was held that the plaintiff, not having received any part of the wood, might recover back the money he had paid (y). But the count for had and received is not maintainable if the contract has been in part performed, and the plaintiff has derived some benefit; and, by recovering a verdict, the parties cannot be placed in the exact situation in which they respectively stood when the contract was entered into (~). Thus, where A. agreed, in consideration of a premium, to let a house to B., which A. was to repair and grant a lease of within ten days, but B. was to have immediate possession; and B. paid the premium and took possession, and retained it after the ten days, although A. omitted to repair and grant the lease, it was held, that B. could not, by quitting for A.'s default, recover back the premium on a count for money had and received; but was bound to declare specially for the breach of the agreement (a). So, where a party sold a patent right, and the vendee paid the money and used the patent right, and enjoyed a benefit therefrom, but it afterwards appeared that the patent was invalid; it was held, that money had and received could not be sustained, a partial benefit having been received by the defendant(b). And, upon the same principle, where the master and part owner of a vessel agreed to purchase the moiety of his partner, and having (v) See in general, ante, 246 to 251. (w) Ante, 248. (x) Giles v. Edwards, 7 T. R. 181; Beed v. Blandford, 2 Y. & J. 284. (y) Giles v. Edwards, 7 T. R. 181 (z) Hunt v. Silk, 5 East, 449; Beed v. Blandford, 2 Y. & J. 278. (a) Hunt v. Silk, 5 East, 449. (b) Taylor v. Hare, 1 New R. 260. paid the purchase money and received the title deeds, which he deposited as a security with a third person, had the entire possession of the vessel given up to him; but his partner afterwards refused to execute a bill of sale, or refund the money; it was decided that an action for money had and received was not sustainable (c). We have already considered the cases having relation to the claim of an infant to recover back money which he has voluntarily paid as a deposit or premium upon a contract which he has entered into (d). The rules of law affecting the right to rescind a contract have already been partially considered (e), and will be more fully noticed in a subsequent part of the work (ƒ). When the contract is rescinded either by the mutual consent of the parties, or by virtue of a clause contained therein, the common count lies to recover money paid by the plaintiff under the agreement (g). If an annuity be defectively granted, and be set aside at the instance of the grantor, for non-compliance with the statute as to the memorial, &c., the grantee may in general maintain money had and received, to recover back the purchase money, or price (h). And, even if the annuity has not been actually set aside, the grantee has this remedy, if the grantor has communicated to the grantee that the memorial is defective, and has, on that ground, treated for a compromise; although the grantee neither demands payment of the arrears, nor tenders new securities, nor delivers up the old ones, nor takes any active measures to set aside the securities before he sues (i). If the annuity, being defective, from the act or negligence of the grantee, in regard to the memorial, has not been set aside by the court, it seems that the consideration money is not recoverable, unless the grantee prove that the grantor has refused to continue the payment of the annuity; or, upon request so to do, has declined to re-execute valid securities. But it appears to be unnecessary to tender back the old deeds (j). There must be some decisive act shewing the (c) Beed v. Blandford, 2 Y. & J.278. (d) Ante, 121, 126; Corpe v. Overlon, 10 Bing. 252. (e) As to rescinding a contract for the sale of realty, ante, 246; or of goods upon a breach of warranty, &c. ante, 351, 362, 369. (f) Post, Ch. 5 Div. 1. (g) Id., Ante, 364, 369; Payne v. Whale, 7 East, 274. (h) Show v. Webb, 1 T. R. 732; Scurfield v. Gowland, 6 East, 241; Davis v. Bryan, 6 B. & C. 656, per Holroyd, J. (i) Waters v. Mansell, 3 Taunt. 56. (j) Weddel v. Lynam, 1 Esp. R. 309; S. C. 2nd Trial,nomine Widdlev. Lynum, Peak, Add. C. 30. election of the grantor to treat the annuity as void; and therefore where the annuity was granted more than six years before the action for money had and received was brought, but was treated by the grantor as subsisting within this period, although subsequently avoided at his instance; the Court held that the Statute of Limitations did not begin to run until the annuity had been avoided (k). In these cases the defendant, though liable to the action, is entitled to deduct from the purchase money the payments made by him under the annuity deed (7). Where, however, A. purchased an annuity for his life, which was regularly paid up to the time of his death, but no memorial of the annuity was enrolled, the Court held that A.'s executors could not on that ground insist that the contract was void, and recover back the consideration money paid for the annuity; for the contract was executed; the testator had enjoyed the full consideration for his advance, and the claim of the executors was against equity and good conscience (m). Where a scheme for establishing a tontine was put forth, stating that the money subscribed was to be laid out at interest, and after some subscriptions had been paid to the directors, in whom the management of the concern was vested, but before any part of the money was laid out at interest, the directors resolved to abandon the project; it was held, that each subscriber might, in an action for money had and received, recover the whole of the money advanced by him, without any deduction of any part towards the payment of the expenses incurred (n). The Court considered that this was only the case of a proposed partnership, as there could be none until the money was laid out in the execution of the proposed scheme. And Bayley, J., observed, that the action might be maintained, even if the scheme had been within the Bubble Act (o); for it proved abortive, and no transferable shares were ever created, and the period had not arrived at which it would have been within the operation of the statute. This action lies to recover back a sum of money paid for the (k) Cowper v. Godmond, 9 Bing. 748; 3 Moo. & S. 219, S. C. (1) Hicks v. Hicks, 3 East, 12; Weddel v. Lynam, suprà, 489, note (j); Hills v. Hills, 4 Esp. 196; Byne v. Vivian,5 Ves. jun. 608, &c. See Burdon v. Browning, 1 Taunt. 522, that premiums of a policy paid by the grantee cannot be charged against the grantor, who had not agreed to insure his life. (m) Davis v. Bryan, 6 B. & C. 651; 9 Dowl. & R. 726. (n) Nockells v. Crosby, 3 B. & C. 814; 5 Dowl. & R. 751; ante, 197. See Lloyd v. Sandilands, Gow, 13. (0) The 18th, 19th, & 20th sections, repealed by 6 G. 4, c. 91. |