May Term, 1852. CONKLIN V. SMITH. CONKLIN V. SMITH. Monday, Money due to the plaintiff, and improperly received by the defendant, cannot be recovered in an action for money paid. Money paid to the defendant under a mistake of facts, cannot be recovered under a count for money paid. The proper form of action is for money had and received. To sustain a count for money paid, there must have been a payment of money by the plaintiff to a third party, at the request of the defendant, express or implied, on a promise, express or implied, to repay the amount. ERROR to the Wayne Circuit Court. BLACKFORD, J.-Smith brought an action of assumpsit against Conklin. The declaration contains but one count, and that is a general one for money paid, laid out, and expended. Pleas, the general issue, a set-off, and the statute of limitations. Replications to the last two pleas, and issues. The cause was submitted to the Court, and judgment rendered for the plaintiff. There was evidence tending to prove that certain rent due to Smith, the plaintiff, from a tenant who had occupied certain real estate of Smith's, had been improperly received from the tenant by Conklin, the defendant. But if it be admitted that Smith has a legal claim against Conklin for the money received by Conklin, it cannot be recovered in this action for money paid. The proper form of action in such case would be for money had and received. The plaintiff contends that there is evidence tending to show that he paid money to the defendant under a mistake of facts. But if there is such evidence, it only tends to show the plaintiff's right to recover under a count for money had and received-not for money paid. To sustain a count for money paid, laid out, and expended, there must have been a payment of money by the plaintiff to a third party, at the request of the defendant, express or implied, on a promise, express or implied, to repay the amount. 2 Saunders' Plead. and Evidence, 402. Per Curiam.-The judgment is reversed, with costs. May Term Cause remanded, with leave to the plaintiff to amend his declaration. J. Rariden and S. W. Parker, for the plaintiff. J. S. Newman, for the defendant. 1852. MORGAN V. LAWRENCEBURGH INSURANCE COM PANY. MORGAN V. THE LAWRENCEBURGH INSURANCE COMPANY. In a suit brought by a corporation, a plea that, at the commencement of the suit, there was no such corporation in existence as the plaintiffs, is substantially good. A declaration against one of several makers of a joint and several promissory note, need not notice that the other makers executed the note. ERROR to the Dearborn Circuit Court. BLACKFORD, J.-The Lawrenceburgh Insurance Company brought an action of assumpsit against Andrew Morgan. The declaration contains five counts. The first four counts are upon promissory notes payable to said company; each count describing a different note alleged to have been executed by the defendant. The fifth count is for money lent and money had and received. There were two pleas: First, That there was not, at the time the suit was commenced, any such corporation in existence as the plaintiffs. That plea was demurred to generally and the demurrer was sustained. The second plea was non assumpsit. Issue thereon. The issue of fact was submitted to the Court, and judgment rendered for the plaintiffs. We think the first plea is substantially good. If the plaintiffs were not a corporation when they commenced the suit, they must fail. This point is decided in the case of The Guaga Iron Company v. Dawson, 4 Blackf. 202. If, by a person's giving a note to a party as a corporation, he is prevented from denying that, when the note was given, there was such a corporation, that is no reason that he should not allege that it did not exist when the suit was commenced. The act of incorporation may, Monday, 3c 285 165 218 May Term, before the commencement of the suit, have expired by its own limitation. 1852. CHEEK V. GLASS. On the trial of the issue of fact, the notes described in the declaration were objected to on the ground of variance; but the objection was overruled. No variance is pointed out in the assignment of errors; and we have not discovered any. The notes appear to have been executed by the defendant and one Swift; but as they are joint and several, it was not necessary that the declaration, in describing the notes, should notice that Swift had executed them. They were the several notes of the defendant, and could be declared on as if he alone had signed them. Chitty on Bills, 9th Amer. Ed. 581. Mountstephen v. Brooke, 1 Barn. and Ald. 224. The judgment for the plaintiffs must be reversed, because the demurrer to the first plea was wrongly sus tained. Per Curiam.-The judgment is reversed, with costs. Cause remanded, with leave to the plaintiffs to reply to the first plea. J. Sullivan, D. S. Major, and A. Brower, for the plaintiff. D. Macy and S. H. Spooner, for the defendants. CHEEK and Others v. GLASS. When the general issue and special pleas are filed to the action, and the defense set up in the special pleas is admissible under the general issue, it will not be examined on error whether demurrers to the special pleas were properly sustained or not. To an action by the assignee against the makers of a promissory note, being principal and sureties, the defense was that, after the note became due, and before the assignment, the time of payment was extended by agreement between the principal and payee, without the consent or knowledge of the sureties. The only evidence of such extension was three indorsements made upon the note by the payee, after it became due. each a year apart from the other, to the effect that he had, at the date of the indorsements severally, received the interest for a year in advance, and the note was to stand, without suit, to the end of the year Held that it did not appear that the time of payment was extended by agree ment made by the payee with the principal, nor that the interest might May Term, not have been paid by either or all of the makers. 1852. ERROR to the Dearborn Circuit Court. CHEEK V. GLASS. SMITH, J.-Assumpsit by Glass against Cheek, Dumont, and Glenn, upon two promissory notes made by the de- Tuesday, fendants in favor of one Hurlbut, and assigned by the May 25. latter to the plaintiff. The notes were dated the 11th of May, 1839, one being payable six years and one seven years after date. Cheek made no defense. Dumont and Glenn pleaded the general issue, and seven special pleas. All the special pleas averred that Dumont and Glenn executed the notes as the sureties of Cheek, and that after they became due, and before they were assigned to the plaintiff, the time of payment was extended from year to year for two or three years, pursuant to an agreement between Cheek and Hurlbut, and made without the knowledge or consent of Dumont and Glenn, in consideration of the payment of interest in advance by Cheek. Some of the pleas aver that interest at the legal rates was thus paid in advance, others, that usurious interest was paid and received. Some of them were pleaded in bar of the suit, and some to the interest and costs only. In other respects the pleas were substantially alike. Demurrers were sustained to the second, fifth, and sixth pleas. The plaintiff replied to the third, fourth, seventh, and eighth, denying that there was any such agreement between Check and Hurlbut as was therein alleged. The cause was, by agreement of the parties, submitted to the Court for trial upon the issues joined, and the plaintiff obtained a judgment for 143 dollars and 54 cents. The only evidence introduced upon the trial consisted of the notes sued upon, and the indorsements upon them. The indorsements upon the note payable six years after date were as follows: "I, Samuel Hurlbut, do hereby agree that the within. note shall stand, without suit, until the 11th of May, 1846, and acknowledge the receipt of the interest up to that time. May 15th, 1845. Samuel Hurlbut." May Term, 1852. CHEEK V. GLASS. "Received the interest in full on this note up to the 11th of May, 1847, and agreed said note to stand, without suit," until that time. Samuel Hurlbut." "This note to stand, without suit, until the 11th of May, 1848, the interest having been paid up to that time. Samuel Hurlbut." "Value received, I assign this note to John Glass. May 26th, 1848. Samuel Hurlbut." There were similar indorsements upon the other note. It is contended that the Court erred in sustaining the demurrers to the second, fifth, and sixth pleas, but we do not think it necessary to examine whether those pleas presented a sufficient defense, as all the evidence which they could have authorized was admissible under the general issue (1). The evidence given upon the trial, however, does not show that Glenn and Dumont were sureties; and if, in a suit upon a note where all appear to be principals, a defense of this kind may be set up and proved, it was not done in this case. It is true, the plaintiffs in error contend, that it stands admitted of record that Glenn and Dumont are merely sureties, because there is such an averment in some of the pleas upon which issue was taken, and it was not denied by the replications. But supposing the suretyship to be admitted, there is no proof of an agreement to extend the time of payment, as alleged in the pleas, and in order to discharge the sureties it should, at least, be made to appear that the agreement for the delay was made by the payee with the principal. The indorsements upon the notes do not show this, for they do not state who paid the interest receipted for, and, for anything that appears, it may have been paid by any or all the makers of the notes. Per Curiam.-The judgment is affirmed, with 2 per cent. damages and costs. E. Dumont, for the plaintiffs. D. Macy, J. Morrison, and S. Major, for the defendant. (1) See Carter v. Thomas, ante, p. 213, and note. |