David Gordon, & Susan his wife, formerly Susan E. Fisher, Plaintiffs in Error, vs. John G. Camp, Defendant in Error, 2 Fla. 422

Hawkins, Justice, delivered the opinion of the Court: This was an action of assumpsit brought by Gordon and wife against Camp, the appellee, on the following instrument of writing:— “ Tallahassee, Floeida, Febiuiaby 5th, 1842.' “ Received from Mrs Susan E. Fisher three hundred and eighteen-dollars in Florida money, which I am to dispose of to the best advantage for specie or northern current funds, and remit the avails to her at Warrington, Virginia, which I expect to do on or before the 1st August next, from Washington city, as I pass through that place-for my former residence in Ohio. JOHN G.

CAMP.” The declaration contains three counts upon the above agreement as a promissory note, and the usual money counts, among which is one for money had and received and one upon an account stated. To this declaration non assumpsit was pleaded and the following special plea, to wit:— “ And the said John G.

Camp, by Douglas & Hogue, his attorneys, comes and defends the wrong and injury when, &c., and says that the said David Gordon and Susan E., his wife, ought not to have or maintain their aforesaid action thereof against him, because he says that at the time and at all times since the aforesaid sum of three hundred and eighteen dollars was placed in his hands for sale, it could not be sold for its fair and full value. And the said John G.

Camp further saith that he, the said Camp, hath always, from the fifth day of February, 1842, the time when the said sum of three hundred and eighteen dollars Florida money, was placed in his hands for sale by said plaintiffs, hitherto and at all times been ready to pay over and return to the said plaintiffs the aforesaid sum oft three hun--dred and eighteen dollars originally put into his hands for sale, and that he is still ready to pay to the said plaintiffs the said sum of three hundred and eighteen dollars, and he now brings the same here into court, ready to be paid to the said plaintiffs, if they will accept the same; and this he, the said John G.

Camp, is ready to verify.— Wherefore he prays judgment if the said plaintiffs ought to have or maintain their aforesaid action thereof against him, &c. [$318,00 Florida money filed with the plea.]” To this plea there was a demurrer, which was overruled by the court. From this decision a writ of error was taken and errors assigned, to wit:— 1. The court erred in overruling plaintiffs’ demurrer to defendant’s plea. 2. The court erred in giving judgment for defendant. 3. The court erred in not giving judgment for plaintiff.

The main question in this case seems to be this : whether, upon the facts, as disclosed by the record, the action of assumpsit can be maintained. That action lies where a party seeks damages for a breach of a promise not under seal, and the promise may be express or implied; for the law always implies a promise to do that which a party is legally liable to perform ; and the remedy conferred by this action is of a very large and extensive application.

It is contended here that case and not assumpsit should have been brought by plaintiffs, because an unpaid agent undertaking to perform anything is only liable to the first action (case) for damages resulting from the manner of his performance, and that there is no contract; that the defendant was a mere bailee without reward, and must have been guilty of gross negligence to render him liable as a mandatary, and then case would have been the remedy.

All this is no doubt correct upon the ground that there is no contract, and if in this case there is no contract, express or implied, the action of assumpsit cannot be sustained. Assumpsit will frequently lie, however, where there has been nonfeasance, misfeasance or malfeasance; for the plaintiff may waive the tort and rely on circumstances as forming a breach of the promise. 6 East. 335. 2 Lord Ray. 1216. 1 B. and C. 418. 1 Saunders PL and Ev. 111. The plaintiff mainly relies upon the count in his declaration for money liad and received.

Such a count has been likened to a bill in equity, and may, in general, be proven by any legal evidence, shewing that the defendant has possession of the money of the plaintiff which, in equity and good conscience, he ought to pay over. “ It is a liberal action, in which the plaintiff waives all torts, trespass and damages, and claims only the money which the defendant has actually received.” 2 Greenleaf’s Evidence, 105. In reply to this it may he urged that money was not, in this case* the subject of the bailment, yet Camp acknowledges the receipt of so much Florida money.

What is the precise legal definition of this term, it is unnecessary now for the court to declare, though in the case of Williams vs. Moseley, it clearly indicated its opinion as to another term substantially resembling it. It is sufficient as to the decision of the case at bar, that the court understands, that that which Camp received was to be treated as money, and the best evidence of it is Camp’s own declaration. In such a case, that an action for money had and received is sustainable, seems to admit of no doubt.

Professor Greenleaf, in speaking of such an action, remarks : “ In regard to things treated as money, it has been held that this count may be supported by evidence of the defendant’s receipt of bank notes, or promissory notes, or credit in account in the books of a third person, or a mortgage assigned to the defendant as collateral security, and afterwards foreclosed and bought in by him, or a note payable in specific articles, or a chattel.” 2 Greenleaf’s Ev., 106. It is presumed in this case, that Camp received bank notes, though that fact does not appear upon the record. In the case of Pickens vs.

Banks, 13 East., 20, the facts were these — a stakeholder, receiving country bank notes as money, paid them over wrongfully to the original stakeholder, after he had lost the wager. An action for money had and received was brought to recover the money thus paid over, and it was contended the action would not lie, because bank notes were paid, and. they were not money.

Lord Ellenborough said : “ Provincial notes are certainly not money; but if the defendant received them as ten guineas in money, and all parties agreed to receive them as such at the time, he shall not now turn round and say, that they were only paper and not money. As against him, it is so much money received by him.”— See also page 130, same work. So in Mason vs. Waite, 17 Mass. R., 560. A. delivered bank notes to a carrier, who paid them to B., for a loss at a faro table — it was urged that, inasmuch as the bail* ment consisted of banlc notes, assumpsit would not lie, but the court ruled otherwise, C. J.

Parker observing : “We cannot see, however, why the action for money had and received will not lie. The notes were paid and received as money; and as to any want of privity, or an implied promise, the law seems to be, that where one has received the money of another, and has not a right conscientiously to retain it, the law implies a promise that he will pay it over.” So in Ainslee vs. Wilson, 7 Cowen Rep., 662, it was held, that property paid or received as money will support the action for money paid, or had and received, the same as if money itself had>been paid or received.

And if money has been misapplied, the law will raise an assumpsit, where it has been received for the use of another. Dumond vs. Carpenter, 3 Johns. R., 183. Again : “ if a party gives another that which may readily be turned into money, it may be treated as such in an action for money had and received. Doug. 137. 4 Bing., 178; and where the property delivered to defendants is saleable, the receipt of money may be presumed, particularly after a lapse of time. Ib. 4., T. R., 687. 3 B. & P., 559. 2 Saunders’ Pl. & Ev., 672.” We refer also to the authorities cited by counsel of appellants, viz : Whitehead vs.

Greetham, 2 Bingham, 464. Shil-liber vs. Glynn, et al., 2 Mee. & Welsby. Ex. Rep., 143. 10 Ad. & El., 98. The American annotator upon the case of Coggs vs.

Bernard, (1 Smith’s Leading Cases, 188,) speaking upon the subject of bailment, after giving his views as, to unpaid agents, holds this language : “ It may be proper to note, that where money is the subject- of bailment, or delivery to an agent, paid or unpaid, assumpsit is the proper remedy ; assumpsit in the form of money had and received usually being, in case of money, a substitute alike for trover, trespass, and case ; though as a substitute for trover, there need be no previous demand. See Graves et al., vs. Ticknor, 6 New Hampshire, 537.

We have looked at that decision — it is lucid and able, and fully sustains the foregoing remarks. The defendant in the suit pleads a tender, with a proferí, in curia of three hundred and eighteen dollars of Florida money. The tender admits the existence and validity of the debt or duty, insisting only upon the fact, that there has been an offer to pay or perform it. It admits the contract and facts stated in the declaration, and goes only in bar. 2 Greenleaf on Ev., 562. 2 Saun. on Pl. & Ev., 836-’7.

The plea does-not state that the tender was made before the commencement of the suit, and is, therefore, insufficient. Ordinarily, the tender should be made at the time the money became due; but if no day of payment is fixed upon, proof of tender before suit brought would be sufficient. 2 Greenleaf, 567. 2 Saunders’ Ev., 237.

The plea, too, in other respects, is exceptionable, if the tender was intended as one of specific articles, for it does not state that the Florida money tendered is the same that was received ; nor does it Set • forth, that Camp endeavored to dispose of it to the best advantage, but merely that it could not be sold for its full and fair value. In conclusion, we are not to be understood as deciding, that the plaintiff is absolutely entitled to recover the full amount which the receipt of Camp calls for upon its face.

The action, as we have ■seen, is an equitable one, and the plaintiffs are entitled to recover such damages as they are entitled to ex equo et bono, they being dependent upon the value of the bailment entrusted to his charge. We think, for the reasons herein set forth, the demurrer to the defendant’s plea should not have been overruled by the court below, and that the judgment of that court was erroneous. It is, therefore, ordered that the judgment of the court below be reversed, and that the cause be remanded thither, for further proceedings in accordance with this opinion.