Francis W. Dana versus Charles Kemble, Principal, and Thomas Barry, Trustee, 17 Pick. 545

Per Curiam. The objection made to the competency of Eatxy is, that if the sum due from him to the defendant is dit srted by the trustee process, he will not be chargeable with merest, and that otherwise he will be. But this position .k not correct. If by his contract he is liable to pay interest, he will be chargeable with it on the trustee process. If he is not so liable, then as the trustee process arrests the fund in his hands, he is in no fault, and so not chargeable with interest for neglecting to pay the defendant.

In either case therefore he was not interested in the event of the suit, and was properly admitted as a witness. By the contract, which is contained in the letters between the parties, the defendant was clearly entitled to half the gross receipts ; and the verdict must be set aside as not being supported by the evidence.

But it is proper to remark, that the plaintiff relied mainly on the ground of fraud and misrepresentation for the support of his action ; and the ruling of the judge at the trial, that he could not recover on that ground in this form of action but that his remedy must be ¡by an action of deceipt, was erroneous. The action for money had and received is founded on principles of equity, and if owing to his own fraud or misrepresentation in entering into the contract, the defendant has received more than he was justly entitled to claim, the plaintiff has a right to recover back the excess.

In regard to the ground of defence, that the payment was voluntary, it is contended that the plaintiff’s letter of May 16th shows that he was aware of all the circumstances. After the performances were over on that evening, the plaintiff sent the letter, stating that he had ground for believing that the defendant played at the Park theatre in New York, ior half the net profits ; but the defendant asseverated that he had half the gross receipts ; and so the plaintiff paid the moriev We think this was not a voluntary payment, with a full knowledge of the facts.

The defendant has no right to complain of the plaintiff for giving credit to his statement. But there is another circumstance that will excuse the payment. It was advertised that the defendant and his daughter would play on the following night, and he refused to perform unless the money should be paid. We think this was a species of constraint sufficient to excuse the plaintiff in paying the money. New trial g> anted.