
    Murphey vs. Barron.
    June, 1827.
    The action for money had and received, is an equitable action, and equally as remedial in its effects as a bill in equity.
    If one man takes another’s money to do a thing, and he refuses to do it, it is a fraud; and it is at the election of the party injured, either to affirm the agreement, by bringing an action for the nonpayment of it; or to dis-affirm it ab initio, by reason of the fraud, and bring an action for money had and received to his use.
    But where a vendor was exonerated from the delivery of a slave, then out of his possession, whom he had sold, and been paid for, and afterwards persuaded or enticed to abscond, so that the purchaser never got possession of him, no action cah be maintained upon the contract of sale for a nondelivery, or to recover back the purchase money, as money had and received by him to the use of the vendee; either could have been maintained, if it had been the vendor’s duty to deliver the slave; and he had refused. The proper remedy here' is a special action on the case for persuading or enticing the slave to abscond.
    Appear from Harford County Court. This was an action of assumpsit. The declaration contained three counts. The first count stated that the plaintiff, (now appellee,) being the owner of a negro man slave named Isaac, sold, conveyed and delivered, the Said slave to the defendant, (the appellant,) to be holden in mortgage as a pledge and security for' the payment of the sum of $404 61, due from thé plaintiff to’ the defendant/ and the defendant did then agree, assume and- promise, that he Would return and deliver the said negro to the' plaintiff, on payment of the said sum of money; and although the money was afterwards paid by the plaintiff to the defendant in discharge of the pledge of the said slave, yet the defendant neglected and refused to deliver' the said slave, &c. The second count was for money had and received* The third count stated that the-defendant, being' the owner and possessor of another' slave called Isaac, did agree and. contract with the plaintiff,- that if he would pay to the defendant the sum of $404 61, as the purchase money and consideration: therefor, the defendant would; sell and deliver' the said slave to him the plaintiff; and the plaintiff confiding, &c. paid the' said sum of money to the defendant, which the defendant accepted as and tor the price' of the said slave; yet the defendant, not regarding his promise, ■&C. neglected and refused to deliver the said slave to the defendant, although, &c. The defendant pleaded non assumpsit? andissue was joined,,-
    
      At the trial, the plaintiff produced one Aquilu Keen„ one of the subscribing witnesses to the bill of sale first herein after set forth, who proved that he was requested, by the plaintiff and defendant, to witness the execution of the bill of sale; which he did; that when the plaintiff had signed the same, he requested the defendant to relate to the witness the understanding between them, respecting the negro Isaac, named in the bill of sale. In answer thereto, the defendant replied, that the understanding was that the plaintiff was to have the said negro again, provided he paid the defendant the money mentioned in the bill of sale, within four months, if he wanted the said negro for his own use. The same witness also gave evidence, that when the plaintiff and defendant came out of the house, short-? ]y after executing the bill of sale, the plaintiff, seeing the said negro, observed to the defendant, that it was a lucky thing that Isaac was there, that he might take him, as he was his property, or words to that effect. The bill of sale, which was also read in evidence, was dated the 10th of April 1818, whereby, in consideration of the sum of $404 61, Barron bargained, sold and delivered to Murphey, his negro man Isaac. The negro therein mentioned was in pursuance thereof delivered to the defendant. The plaintiff also gave in evidence, that he did, on the 7th of July next, after the execution of the said bill of sale, call on the defendant and pay him the consideration money mentioned therein; and that the defendant did execute and deliver to the plaintiff a receipt for the money so paid; that at the time of the payment of the money, the plaintiff demanded of the defendant that he should deliver up the hill of sale: to which the defendant objected, but stated that he would agree to whatever a certain Walter T. Hall, a magistrate in the vicinity, should say he ought to do in this respect. That the plaintiff then brought a letter from Walter T. Hall to the defendant, in which he did advise the defendant to give up the bill of sale, which the defendant did accordingly deliver up to the plaintiff; and also proved by Walter T. Hall the acknowledgment of the defendant that he had received from the plaintiff the full amount of the consideration money mentioned in the said bill of sale; that when the plaintiff called upon the said •witness to get the said letter to the defendant, he showed to the witness the receipt which he had obtained from the defendant; and that the said receipt contained no clause or condition whatever, but was merely a receipt for so much money for the said negro Isaac. And by another witness proved, that on the said seventh day of July, the plaintiff, after he had so paid the money to the defendant, went to take possession, of the said negro, who had, previously thereto, been hired, by the defendant, to a certain Charles G. Hall, but when he went into the harvest field, where the labourers of the said C. G. Hall were at work, he found that the said negro had absconded, about an hour before his arrival, and left his cradle in the harvest field; and that he never gained possession of said negro, who since then, has not been found. And further produced a certain Thomas H Griffith, who proved that the defendant did, on “the eighth day of July, in the same year, declare and say, that as he had understood that the plaintiff intended selling said negro out of the state, he should not gain possession of him; and that the defendant did direct one of his female slaves to go and give information to the said negro Isaac of the intention of the plaintiff to dispose of him out of the state; but that he did not see the said female slave obey the said order, and did not know that the information was conveyed to the said negro Isaac by her, then, or at any other time; or whether the same was conveyed to the said Isaac either by the defendant or by his orders. The defendant then produced one John Murphey, junior, a son of the defendant, also a subscribing witness to the said bill of sale, who proved, that on the same day of the execution of the said bill of sale, and delivery aforesaid of said negro, shortly thereafter, the plaintiff complained to the defendant that the sum which he had received for the said negro was less than he was worth. Whereupon the defendant promised the plaintiff, that if he wanted the said negro for his own use, and would not sell him out of the state, if he would, at any time within four months from the execution of the said bill of sale, pay and satisfy him the amount of the consideration money, stated in the said bill of sale, he would relinquish to the plaintiff all the right of said negro so as aforesaid conveyed to him; and that on the said seventh day of July, at the time when the consideration money aforesaid was paid to the plaintiff, he did declare and say to the defendant that he did exonerate him from the delivery of the said negro; that he knew where he was hired; that he would take him where he was, and as he was. That on the morning of the 8th of July 1818, the plaintiff called on the defendant, and stated to him that he had lost or mislaid the receipt for the money paid by him, on the day before, and requested another; to which the defendant assented, taking first the following acknowledgments “I hereby acknowledge I have lost or mislaid the receipt John Murphey gave me yesterday, for four hundred and ten dollars and sixty-seven cents, which is void if found.
    
      Ellis Barron.-
    
    July 8th, 1818.”
    And then gave the following his second receipt: “Received July 8th, 1818, of Ellis Barron, four hundred and ten dollars and sixty-seven cents; it will be in full for negro Isaac, in case he is not convoyed out of the state of Maryland before the eighth of July, in the year of our Lord one thousand eight hundred and nineteen.
    
      John Murphey.”
    
    And also proved, by the said John Murphey, junior, that the following was brought some days afterwards to the defendant, by the plaintiff, and delivered by him: “Received, July 7th, 1818, of Mr. Ellis Barron, four hundred and ten dollars and sixty-seven cents, in full for all my right, claim and interest, of negro Isaac, which I purchased of him in April last, provided the said Barron does not sell, or cause to be sold, negro Isaac, out pf the state of Maryland, for one year from this date.
    
      John Murphey.
    
    
      Test. — John Murphey, Junr.”
    And proved, by the said witness, that the aforegoing receipts were the original receipts which were given by the defendant to the plaintiff. And also proved by the same witness the execution and delivery, by the plaintiff to the defendant, of the following bond or instrument of writing: “Know all men by these presents, that I, Ellis Barron, of Harford county, and state of Maryland, am held and firmly bound by these presents, unto John Murphey, of the county and state aforesaid,, in the just and full sum of two hundred and fifty dollars, in case I the said Ellis Barron shall sell or cause to be sold negro Isaac, formerly the property of John Forwood, deceased, or exported out of the state of Maryland for one year, against his will, from this date. As witness my hand and seal this eighth day of July, in the year of our Lord one thousand eight hundred and eighteen.
    
      E. Barron, (Seal.)
    
      Test. — John Murphey, Junr”.
    The defendant also proved by the same witness, that on the said eighth of July, after the plaintiff had made an unsuccessful effort to gain possession of the said negro Isaac, he went to the defendant’s house, and announced to him that the said negro had run away. To which the defendant replied he had taken away his cradle, and he supposed he should lose it; and that the plaintiff stated, that if he had taken away his cradle, the defendant should lose nothing by it, but that he would pay him for it. And proved, by Charles G. Hall, that about a year afterwards the plaintiff called upon the said Charles G. Hall, ^nd stated that as the negro was his, he must pay to him his harvest wages. The defendant then prayed the following directions of the court to the jury. 1st. That if the jury believe that the plaintiff, on the payment of the money to the defendant in July, exonerated the defendant from the delivery of the negro slave aforesaid, and agreed to' take him wherever he was, the plaintiff is not entitled to recover for the nondelivery of the said negro; and 2ndly. That if they should further believe that the defendant induced, enticed and persuaded the said negro to run away, still the plaintiff is not entitled to recover on the count for money had and received, nor on either of. the special counts in the declaration. The first prayer the Court, [Hanson, and Ward, A. J.] granted; and did then and there direct the jury accordingly; but the second prayer aibove mentioned the court refused to grant. The defendant excepted; and the verdict and judgment being against him, he appealed to this Court.
    The cause was argued at December term 1825, before Buchanan, Ch. J. and Martin, and Stephen, J.
    
      
      Mitchell, for the Appellant,
    contended, 1. That the second direction prayed ought to have been given by the court below; and that the declaration ought to have contained a special count for enticing away the plaintiff’s slave. 3. That the promise and undertaking laid in the first and third counts were void in law for want of consideration and mutuality, &e. 3. ■ That material substantial averments were wanting in all the counts in the declaration; and the court below ought to have given judgment against the plaintiff below. He referred to Cortelyou vs Lansing, 2 Caine’s Cases, 205. Jones on Bailment, 86, and Appendix xvi. Bank of England vs Glover, 2 Ld. Raym. 753. As to the misjoinder of causes of action, he cited 1 Chitty’s Plead. 199. Coryton vs Lythebe, 3 Saund. 117, ( note.)
    
    On the bill of exceptions, he referred to Bird vs Randall, 1 W. Blk. 373. 1 Bac. Ab. tit. Actions on the Case, (F) 87. He contended that no one of the counts in the declaration was sustained by the proof; and that parol evidence was not admis-sible to explain a written contract.
    
      R. Johnson, for the Appellee.
    As there was a general verdict, any defective count in the declaration is cured by the act of 1809, eh. 153. Here the first is a good count. This is not an action for a tort. It is upon a contract. Trover might have been brought, but the plaintiff may waive the tort, and go upon the promise and undertaking. He may recover upon the second count, there being a breach at the end of the declaration. If there is a defect at all, it is merely formal, which this court will not regard. 1 Chitty’s Plead. 98, 99.
    
      Mitchell, in reply,
    referred to Raborg vs Kirwan, 1 Harr. & Johns. 296.
    
    
      Curia adv. vult.
   Stephen, J.

at this term, delivered the opinion of the Court On the 10th of April 1818, the appellee sold to the appellant, a negro man named Isaac, for the consideration of $404 61, arid gave him an absolute bill of sale of the said negro; but immediately after the execution of the hill of sale, Barron, the appellee, requested Murphy, the yendee and appellant, to state to one of the witnesses to the bill of sale the understanding between them respecting the negro, Isaac, when the defendant, Murphey, said the understanding between them was, that the plaintiff, Barron, was to have the said negro again, provided he paid the defendant, Murphey, the money mentioned in the bill of sale within four months, if he wanted the said negro for his own use. The plaintiff, to support his action, gave in evidence to the jury, that on the seventh of July, next after the execution of the said bill of sale, he called on the defendant and paid him the consideration money mentioned in the said bill of sale, and that the defendant did execute and deliver to him a receipt for the money so paid, stating it to be in full for said negro Isaac, if not sold out of the state within one year from that time. The plaintiff also gave in evidence to the jury, that on the day he paid the money to the defendant, he went to take possession of the said negro, who had previously thereto been hired by the defendant to a certain Charles G. Hall, but that when he went into the harvest field, where the labourers of the said Hall were at work, he found that the said negro had absconded about an hour before his arrival, and that he never gained possession of the said negro, who since then has not been found. The plaintiff further proved to the jury, that the defendant did, on ths eighth day of July, in the same year, declare that as he had understood the plaintiff intended selling the said negro out of the state, he should not gain possession of him, and that the defendant did direct one of his female slaves to go to and inform the said Isaac that the plaintiff intended to sell him out of the state; but did not prove that the information was communicato ed to the said Isaac by the said slave, as directed by the defendant. The defendant, to support the issue on his part, proved to the jury, that on the seventh day of July, when the consideration money was paid by the plaintiff to the defendant, he did declare and say to the defendant, that he did exonerate him from the delivery of the said negro, that he knew where he was hired, and that he would take him where he was, and as he was. Whereupon the defendant prayed the opinion of the court, and their direction to the jury, that if they should believe that the defendant induced, enticed and persuaded, the said negro to run away, still the plaintiff was not entitled to recover on his count for money had and received, nor on eitiler of the special counts in the declaration; which opinion and direction the court refused to give; to which refusal the defendant excepted. And the question now to be decided by this court is, whether the court below did right in refusing to instruct the jury as prayed; or in other words, whether, upon the facts above stated, the action for money had and received can be sustained? The action for money had and received is an equitable action, and equally as remedial in its effects, as a bill In equity. Evans, in his Essay on the action for money had and received, 23, states the principle to be, that a suit in equity must be considered as being merely equivalent to an action for money had and received; and one of the grounds upon which, this action can be supported, is where money has been paid up-en a consideration which has failod. It was contended, in the course of the argument before this court, that upon the payment of the purchase money by the plaintiff to the defendant, ¿he property revested in the plaintiff, and that the action should have been trover. In answer to that argument it may be remarked, that by the agreement of the parties, the defendant was expressly absolved by the plaintiff from any obligation to deliver the negro Isaac to him, he having expressly agreed to take possession of him where he was hired. But it is not necessary to decide whether or not this is a case where the action of trover might be supported; for if the action of assumpsit for money had and received is suátai nablo, there is no error* in the opinion of the court below, and their judgment ought to be affirmed. In Moses vs Macferlan, 2 Burr. 1012, Ld. Mansfield says “the gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural Justice and equity, to refund the money. Evans, in his Essays, 17, speaking of a failure of consideration by the misconduct of the defendant, refers to the case of Dutch vs Warren, which is particularly adverted to by Ld. Mansfield in Moses vs Macferlan. That case was as follows: Upon the 18th of August 1720, on payment of £2&2 10, by the plaintiff to the defendant, the defendant agreed to transfer him five shares in the Welch copper mines, at the opening of the hooks; and for security of his so doing gave him this noler. 18th of August 1720j I do hereby acknowledge to have received- of Philip Dutch ¿62G2 10, as a consideration for the purchase of five shares; which' I do hereby promise to transfer to the said Philip Dutch as soon as the books are opened; -being five shares in the Welch copper mines. Witness my hand. ílqberi Warren. The books were opened on the 23d of the same month, when Dutch requested Warren to transfer to hint the said five shares, which he refused to do; and told the plain-! tiff he might take his remedy. Whereupon the plaintiff brought an action for money had and received, for the consideration money paid by him. An objection was taken at the trial, that the action would not lie; but that the' action should have been brought for the nonperformance of the contract.. But the ob*jection was overruled by the court, who left it to the consideration of the jury, whether they would not make the price of the said stock as it was upon the 22d of August, when it should have been delivered, the measure of the damages; which they did; and gave the plaintiff but dS175 damages. And a case being made for the opinion of the court of common pleas, the action was resolved to be well brought. The court said, that the extending those actions depends on the notion of fraud. If one man takes another’s money to do a thing, and refuses to do it, it is a fraud; and it is at the election of the party injured either to affirm the agreement, by bringing an action for the nonperformance of it; or to disaffirm the agreement ab initio, by reason of the fraud, and bring an action for money had and received to his use. So in the case now before this court, if it bad been the duty of the defendant to deliver the negro to the plaintiff, and he had refused to do so according to contract, the plaintiff would have had the right of electing either to have affirmed the agreement, by bringing an action for the nonperformance Of it, or to have disaffirmed it ab initio, by reason of the fraud, and to have brought an action for money had and received to his use; but the evidence is full and explicit, that from the performance of that duty he was expressly discharged by the plaintiff himself. The other two counts being for the nondelivery of th,e slave, according to the contracts as therein stated, it follows, of course, that the judgment of the court below supporting the action, must be reversed. On payment of the purchase money by Barron to Murphey, the property vested in Barron, and his proper remedy to redr.ess the injury he had sustained, would have been a special action on the case against Murphey for enticing or persuading his slave to abscond front his service.

JUDGMENT REVERSED»  