Nash, J. To the plaintiff’s recovery two objections are urged; first, that the payment by him to the defendant was voluntary; and, secondly, if he could recover, a single magistrate had not jurisdiction. The action for money had and received rests upon equitable principles, and whenever there is a privity between the payer and *245 receiver, and the latter has received money to which the former is injustice and equity entitled, the law implies a promise to pay it, and gives this action. 2 Stark, on Ev. 63. It is true that in one sense the payment by the plaintiff was voluntary. He did not pay it under duress of his person, nor did he pay it under process of law, but was it voluntary in that sense, which, in law, disqualifies him to demand it back 1 In order to have this effect, the payment must be made, with full knowledge of the facts, or full means of obtaining that knowledge.
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MITCHELLv. WALKER,30 N.C. 243(1848)
WILLIAM MITCHELL v. MOSES WALKER.
Supreme Court of North Carolina
1. The action ofassumpsitis a liberal action, and where, by the obligations of justice and equity, the defendant ought to refund money paid to him, the action will be sustained; but where he may, with a good conscience, receive the money, and there was no fraud of unfair practice used in obtaining it, though it was money he could not have recovered by law, it cannot be recovered back.
2. The jurisdiction of a single justice extends to all cases for the recovery of money, when the amount is within the sum designated in the act of the General Assembly, when a generalindebitatuswill lie, whether the contract is expressed or implied by law.
APPEAL from the Superior Court of Law of PERSON, at Spring Term, 1848,Pearson, J., presiding.
The case is as follows: In 1835 the plaintiff hired from one Brooks a negro, for the sum of $16, and gave his note, with the defendant as his surety for its payment. The plaintiff was the agent of one Shelton, for whose use the negro was hired. Of this fact the defendant was ignorant, at the time the note was given, and, upon learning the truth, insisted that Brooks should give up the note to him, which was done upon Shelton assuming to pay the debt. Soon after Shelton did pay the money to Brooks. The defendant kept the note in his possession nine years, when he sent it for collection to an officer in the State of Virginia, where the plaintiff lived. The latter, upon being apprised of the fact, went to see the defendant, and told him he had expected Shelton would have paid off the note. Defendant assured him Shelton had not so done, but that he had been compelled to pay it, and looked to him for the amount.Page 181Upon this representation the plaintiff paid the amount (244) claimed to the defendant, who undertook to collect it from Shelton and pay it over to the plaintiff.
To recover the amount so paid by the plaintiff to the defendant this action was brought by a warrant before a single magistrate.
The defendant moved the court to charge the jury that, as the payment by the plaintiff was a voluntary one, he could not recover it back; but if he could, it could not be done by warrant. This instruction the presiding judge refused to give, but charged the jury that, although the money was paid by the plaintiff when under no legal coercion so to do, yet if he acted under a mistake of facts, falsely represented by the defendant, he had a right to recover it back, and in this form of action.
Under the charge of the judge the jury found a verdict for the plaintiff, and judgment being rendered thereon, the defendant appealed.
E. G. ReadeandT. B. Venablefor plaintiff.Kerrfor defendant.
NASH, J.
To the plaintiff's recovery two objections are urged: first, that the payment by him to the defendant was voluntary, and, secondly, if he could recover, a single magistrate had not jurisdiction. The action for money had and received rests upon equitable principles, and whenever there is a privity between the payer and receiver, and the latter has received money to which the former is in justice and equity (245) entitled, the law implies a promise to pay it, and gives this action. 2 Stark. on Ev., 63. It is true that in one sense the payment by the plaintiff was voluntary. He did not pay it under duress of his person, nor did he pay it under process of law; but was it voluntary in that sense which, in law, disqualifies him to demand it back? In order to have this effect the payment must be made with full knowledge of the facts or full means of obtaining that knowledge.Waite v. Legget, 6 Con., 195;Clarke v. Dutcher, 9 Con., 674. And when the money has been paid, not with this full knowledge, and it is shown to have been unjustly paid, it may be recovered back.Chatfield v. Paxton, 2 East., 471;Pool v. Allen,29 N.C. 120. In the case before us it is not pretended that the plaintiff knew the facts; on the contrary, he had the best reason to believe that the statement of the defendant was true. He was the surety to the note; the plaintiff lived in Virginia, and the defendant was the only person in this State who, upon the face of the note, wasPage 182liable to its payment, and who, upon discharging it, was entitled to its possession. The possession of the note, therefore, by defendant, nine years after it fell due, was to the plaintiff evidence that he had paid it. It is true that by applying to Shelton or to Brooks, the payee of the note, he might have ascertained the truth of the transaction. But the fraud perpetrated by the defendant superseded the necessity of so doing, and deprived the defendant of that defense. By his own falsehood he put the plaintiff asleep and threw him off his guard, and now asks to be protected in his fraud. The action ofassumpsitis a liberal action, and where, by the obligations of justice and equity, the defendant ought to refund money paid to him, the action will be sustained; but where he may, with a good conscience, receive the money, and there was no fraud or unfair (246) practice used in obtaining it, although it was money he could not have received by law, it cannot be recovered back. 4 Johns, 249, in note toHall v. Schulty. Myher v. Duncan, 13 E. C. L., 293, cited at the bar, is a strong authority upon the point we are considering. A bill of exchange had come by endorsement to the defendant, Duncan, who by his negligence in not presenting it for payment in proper time had made it his own. Afterwards discovering, as he honestly thought, that the bill was void for being drawn on an improper stamp, he demanded from the plaintiff, from whom he had received it, the amount due. The case states that both the plaintiff and defendant were ignorant of the fact that the bill was an Irish bill and did not need an English stamp. The plaintiff paid the defendant the amount due upon the bill, and, upon discovering that it was an Irish bill, brought the action ofassumpsitagainst the defendant for money had and received to his use.Littledale, J., in giving his opinion, states that the plaintiff "had means of knowing that the bill was drawn in Ireland, for he might have inquired of the prior endorser, but there being nothing on the face of the bill to lead him to suppose that it was drawn in Ireland, he was not bound to make any inquiry"; and theposteawas delivered to the plaintiff. In the present case, not only had the defendant full knowledge of all the facts, but the plaintiff was ignorant of them, and his ignorance was founded upon the unequivocal and positive falsehood of the defendant.
But it is further objected by the defendant that if an action can be sustained upon such a transaction, a warrant cannot be sustained. The case ofFerrell v. Underwood,13 N.C. 111, is a full answer. The jurisdiction of a single justice extends to all cases for the recovery of money, when the amount isPage 183within the sum designated in the act of the General Assembly, when a generalindebitatuswill lie, whether the contract (247) is expressed or implied by law.
PER CURIAM. Judgment affirmed.Cited: Winslow v. Elliott,50 N.C. 113;Houser v. McGinnas,108 N.C. 635