
    RICHARD P. RISDON, Respondent, v. LUTGARDA ANGARICA de la RUA, as Ex'r'x, &c., Appellant.
    
      Decided December 1, 1884.
    
      Money had and received—Nature of action— When maintainable.
    
    Plaintiff, the owner of a bond and mortgage, sold the same with the interest due and to become due thereon, to defendant’s testator, who as consideration therefor, paid to plaintiff the principal sum thereof, and agreed to pay the arrears of interest thereon, “ when the same should be collected.” After the testator’s death, defendant, as his executrix, received in full payment of the bond and mortgage, the principal sum and interest thereon, since the said assignment, and surrendered the bond and mortgage, and the same was satisfied and discharged of record. The mortgaged property was ample security for the whole demand, including interest accrued prior to the assignment.
    In an action for money had and received, brought by the assignor against the executrix, to recover the amount of said accrued interest,
    
      11eld, that though the general rule is that an action in such form is only maintainable for money actually received, an exception exists where property is received in lieu of money, or as its equivalent, as was done by the assignment in this case; that the action for money had and received is equitable as well as legal in its nature, and the defendant, being the only person who could collect said arrears, having voluntarily and in the most formal manner, viz., by the satisfaction of the mortgage, acknowledged the receipt of the whole amount, she must, for the purposes of this action, be taken at her word.
    
      Further held, that it is no defense that the parties obligated refused to pay said arrears, such refusal not having been communicated to plaintiff, and there being no valid excuse for non payment, and the satisfaction being voluntary.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
    Appeal by the defendant from a judgment for plaintiff, entered upon the report of a referee.
    This action is brought to recover from the defendant, as executrix of J. G-. Angarica, deceased, the sum of $182.24, the amount of interest which had accrued and was in arrear upon a bond and mortgage of $9,000 which the plaintiff assigned to the defendant’s testator, on November 10, 1877, for the face of the bond and mortgage, and a written agreement by the latter that he would pay such arrears of interest “ when collected.”
    The complaint alleged the sale and agreement to pay the arrears when collected, the appointment of defendant as executrix, etc., and contained the following clause :
    
      “Sixth. The plaintiff further alleges, upon information and belief, that the amount due upon said bond and secured by said mortgage was good and collectible, and that on or about the first day of June, 1878, the defendant, as such executrix, collected and received the same and satisfied and discharged the said bond, and, thereupon, without notice to the plaintiff, executed a satisfaction of said mortgage, and the same was thereupon satisfied and discharged of record.”
    Plaintiff failed to prove that defendant collected said arrears, and it affirmatively appeared that she had not done so.
    Further facts appear in the opinion.
    
      Coudert Brothers, and John H. Post, for appellant.
    I. The referee committed a fatal error in directing judgment for the plaintiff, because the plaintiff failed to prove the vitally material allegation of his complaint that the defendant “ collected and received ” the arrears of interest in question; and the defendant, by uncontradicted and conclusive evidence, proved that she did not collect or receive such arrears. Plaintiff must recover upon his allegations and proofs, taken together, and he cannot be allowed to recover upon proof of facts not pleaded. The referee wholly disregarded the material and vital allegation that the defendant “collected and received ” the arrears of interest in question, and based his decision upon the ground that by virtue of the assignment of the bond and mortgage to Angarica, and his stipulation respecting the alleged arrears of interest, “a relation of trust and confidence as to these arrears of interest was created between Angarica and plaintiff, . . . and it was a breach of the legal duty owing to plaintiff to destroy this claim, for interest arrears without Ms consent, and without payment.” But the plaintiff made no such claim as tMs, and afforded defendant no opportumty of defense to such a claim. On the contrary, he expressly based his actual claim upon the allegation that payment had been made to the defendant of the interest in question. Whether the alleged arrears of interest were, in fact, due, was disputed by the then owner of the mortgaged premises, who refused to pay them, although requested to do so. The undertaking of the defendant’s testator, as alleged in the complaint, and proved upon the trial, was to pay over the arrears of interest “when collected,” wMch words plamly mean “if collected” or “in the event of collection. ” There was no covenant or stipulation that the defendant’s testator would, collect, or take legal proceedings to collect, the alleged arrears of interest. The agreement shows upon its face that it was made upon the “ representations ” of the plamtiff that there were such arrears, and that Angarica neither had any knowledge on the subject, nor intended to enter into any engagement to collect; but only promised to pay over when, or if, the collection should actually be made. That is, when, or if, the owner of the fee should voluntarily, or without legal compulsion, pay the amount in question. The agreement of Angarica was without consideration, it was a nudum pactum, unenforceable except in the single event of the actual receipt of the moneys in question by him (1 Addison Contr. *2, *3, and note 2, p. *2, B. V. Abbott’s Ed.).
    
      Stilwell & Swain, for respondent.
    I. The agreement to pay these arrears of interest was a part of the consideration for the assignment of the bond and mortgage and accrued interest; and the amount of this interest was owing to the plaintiff upon the delivery of the assignment thereof, although the time of payment was postponed until its collection. The agreement to pay tMs interest was not conditional upon its collection, but was absolute. The defendant’s testator did not agree to pay it, if, or in case it could be collected, but simply when it was collected. By his assignment the plaintiff covenanted that it was due, and the security was ample. It was a first mortgage of §9,000 upon premises worth $20,000. The interest could not be collected after the principal was paid, and the bond canceled (Tenth Nat. Bank v. The Mayor, 4 Hun, 429 ; affirmed 80 N. Y. 660 ; Luddington v. Miller, 38 Super. Ct. 478). The assignee’s contract, therefore, was to pay it before the principal was paid, or the bond and mortgage discharged; or when it could have been, and ought to have been, collected by the assignee (Kier v. Tifte, 1 Cow. 98).
    When the defendant on the 1st of June, 1878, accepted and received the principal sum, in full satisfaction of the bond, and surrendered the same, and discharged the mortgage, the arrears of interest became due and payable to the plaintiff by the terms of the contract (Morgan v. Plumb, 9 Wend. 287).
    II. By the plaintiff’s assignment to the defendant’s testator of the bond and mortgage and these arrears of interest, upon the agreement of the latter to pay the interest to the plaintiff, when collected, the assignee became a naked trustee for the plaintiff as to these arrears, with power to collect the same for the benefit of the plaintiff, and to cancel and discharge the claim therefor, upon payment. Having canceled and discharged the plaintiff’s claim for these arrears of interest, the defendant must be held to have collected it, or to have- assumed it, and must be held liable to the plaintiff for the amount (Booth v. Farmer’s Bank, 50 N. Y. 396 ; Beers v. Hendrickson, 45 Ib. 665).
   By the Court.

Van Vorst, J.

The referee has found as facts that there was due and unpaid upon the bond and mortgage when it was assigned to the defendant’s testator, the principal sum of $9,000 with accrued interest to the amount of $782.25 ; that the plaintiff sold and assigned the bond and mortgage, and the interest so due and to grew due therein to the defendant’s testator, and that in consideration of such assignment, the defendant’s testator paid to the plaintiff the principal sum of $9,000, and agreed to pay the plaintiff the arrears of interest owing upon the bond and mortgage, “when the same should be collected.” He further finds that the defendant, after the death of the testator, accepted and received from the owners of the property covered by the mortgage, the principal sum of $9,000, with interest which had accrued subsequent to the assignment, in full satisfaction of the bond and mortgage, and surrendered the same and it was discharged and satisfied of record.

As the accrued interest passed to the defendant’s testator by virtue of the assignment, he in his life-time, and the defendant, as his executrix, after his death, were the only persons who could legally demand and compel payment. Having thus placed his claim in the hands of his assignee as the legal owner, plaintiff could thereafter look only to him for the amount; The consideration for the agreement to pay over the amount was received by the assignee in the assignment itself.

It is urged by the learned counsel for the defendant that this is an action for money had and received, and that, as the money has not been actually collected and received, the plaintiff must fail. The general rule is that an action in such form is only maintainable for money actually received. An exception to this rule however exists where property is received in lieu of money, or is regarded as its equivalent.

By the assignment in question, the assignee was put in possession of the plaintiff’s property, to the extent of the claim for arrears for which he was to account, and the amount of which he was to pay over in money when collected.

Strictly, the plaintiff, as a condition to assigning the mortgage, might have insisted that the assignee should at the time pay the whole amount, including the interest in arrear, in money. This he did not do, but relieved the assignee to the extent of accrued interest from immediate payment. It was clearly the interest of the assignee and his representatives to have collected this money. But she satisfied the mortgage without receiving it. In its nature, the action for money had and received is equitable as well as legal. And the defendant having in the most formal manner, by the satisfaction of the mortgage, acknowledged the receipt of the whole amount, she must, for the purposes of this action, be taken at her word, and must be regarded as having received it.

It is not a good answer to the plaintiff’s demand in this action, that the condition upon which she was to pay the amount has not been fulfilled, because the money has not been actually collected. The condition was substantially fulfilled when, without the plaintiff’s concurrence, she satisfied the mortgage, although she did not exact and receive the whole sum due. Under the evidence, the mortgaged property was an ample security for the whole demand. Nor is it an excuse that upon demand the mortgagor, or those obligated to pay, refused payment, and made some excuse for a failure to comply with the demand. Such refusal or excuse was not communicated to the plaintiff.

From the evidence taken in the case, there was no valid reason for the refusal to pay. The satisfaction was voluntary. By giving away part of the demand, defendant could not defeat her liability for the assigned claim, under her exclusive control, and for which she was accountable. The satisfaction was voluntary, and by it she made complete her liability to the plaintiff for money had and received, and removed the only obstacle in the way of its enforcement. In this view, none of the defendant’s exceptions are well taken, and the judgment is affirmed, with casts.

Sedgwick, Ch. J., and Freedman, J., concurred.  