Hawley against Sage, 15 Conn. 52

Hinman, J.

It is objected to the charge of the judge at the circuit, that he omitted to instruct the jury, that a special demand or request of the sum claimed to be due from the defendant, in this case, was a necessary prerequisite to the plaintiff’s right of recovery; and that, on the contrary, he instructed them, that no such request or demand was necessary ; but if they should find the other facts as claimed by the plaintiff, except said request or demand, they ought to find for the plaintiff On examining the motion, we find, that the case, as claimed by the plaintiff, and which the jury must have found proved, in order to have rendered their verdict in his favour, was simply this.

Hawley, the plaintiff, had in his hands a draft of Bank of Charleston, S. C., on the Union Bank, N. Y., in his favour, for 1000 dollars, payable at sight, and dated May, 1837 ; two thirds of which was his, and the other third belonged to the defendant. The defendant took this draft to collect; and when collected, to divide the avails, as above stated; and though he had collected it, and did not deny that a reasonable time in which to pay the plaintiff his share, had elapsed ; yet he claimed, that he was not bound to pay, without a special request.

As a general rule, a party is bound to perform his contracts, without being first requested so to do; and, unless there be an express stipulation in the contract, that a request or demand of performance shall be made, or it be requisite from the peculiar nature of the bargain, none is essential to complete the cause of action. And where there is a precedent debt or duty, no request is in general necessary, Chitt. Cont. 733. 1 Chitt. Pl. 223. 1 Sw. Dig. 699. These are familiar elementary principles ; and an application of them to the facts which the motion presents, shows the charge to be unexceptionable.

In the first place, so far from there being any thing in the peculiar nature of this bargain, from which it can be inferred that the parties contemplated that the defendant was to keep the avails of this draft, till the plaintiff specially requested and demanded his share of it, the inference is all the other way. He was to collect the draft, and divide the avails as above stated. What was intended by this stipulation ? What duty did it impose upon the defendant ? To separate the plaintiff’s two thirds of the money from the defendant’s one third, would of itself have been a very useless ceremony.

Something more than that must have been intended ; and if so, though more apt words might perhaps have been used for that purpose, it is clear, that nothing less than to collect, divide and pay over to the plaintiff his share, within a reasonable time, could have been contemplated. But again ; as soon as the defendant had collected the draft, he had in his hands nearly seven hundred dollars of the plaintiff’s money, which he had received to the plaintiff’s use. It was then a debt due the plaintiff; and it was the defendant’s duty to pay it. No special request, was, therefore, necessary. ?

But if there was any thing to take the case out of the general rule, it was for the defendant to show it. When money is received by one man, which belongs to another, the law raises a promise, on the part of the receiver, that he will pay it, and that too, without any previous request. If, therefore, from the situation of the parties, or the relation in which they stood to each other, this implied promise could have been rebutted, the defendant should have shown it.

But as he has shown nothing but a desire to keep the plaintiff’s money, his case must be governed by the general rule applicable to a precedent debt or duty. The charge was, therefore, right; and a new trial is not advised. In this opinion the other Judges concurred. New trial not to be granted.