
    Clark Hill versus Joseph Green.
    By a contract under seal, the plaintiff agreed that his son, a minor, should work for tile defendant nine months, and the defendant agreed to give him therefor certain chattels, which were delivered forthwith, but were to remain the property of the defendant until the service should be performed. The plaintiff sold the chattels to a stranger, and the boy was afterwards wrongfully turned away by the defendant, before the expiration of the term. The defendant reclaimed the chattels, and the vendee, knowing all the facts, settled the demand by paying him a sum of money. Held, that the written contract was rescinded, and that the plaintiff was entitled to recover on a quantum meruit for the service performed, but that neither the plaintiff, nor his vendee, could recover back the money paid to the defendant.
    This was assumpsit upon a quantum meruit for the labor of the plaintiff’s son, a minor; with a count for money had and received. At the trial, before Putnam J., the plaintiff offered paroi evidence to prove his case, which was objected to by the defendant on the ground that there was a contract in writing under seal, upon which the action should have been brought. This contract was exhibited and proved by the defendant. It stated, that the plaintiff’s son should labor for the defendant for the term of nine months, and that the defendant should pay the plaintiff therefor by delivering him a pair of stags and a hog, which were to go immediately into his possession, but remain the property of the defendant till the expiration of the term ; and if the son should perform the whole labor, those articles were to be the property of the plaintiff; but otherwise of the defendant. The judge overruled the objection, and admitted the testimony.
    It was proved, that the son went into the defendant’s service, and continued in it about six months, and then left it; that the stags and hog were delivered to the plaintiff according to the agreement; that the plaintiff had sold the stags to one Livermore, and he had sold them to one Clark, previously to the boy’s leaving ; that immediately after the boy left, the defendant demanded the stags of Clark, the plaintiff and his son having gone to Ohio. Clark refusing to give them up, the defendant showed him the contract, stating that he meant to be bound by it, and that others should be also, and brought an action against him.
    Livermore testified, that after the service of the writ upon Clark, he called on the defendant, examined the contract, took counsel upon the subject, and being satisfied that the defendant would hold the stags, settled with him and paid him 55 dollars and the costs ; and that the defendant stated to him, before and at the time of the settlement, that he meant to hold to, and be bound by the contract.
    A question arising whether the boy left the defendant’s service voluntarily, or was sent away by the defendant, the jury were instructed, if they believed the boy was sent away, to find a verdict for the plaintiff; which they did.-
    If the action ought to have been brought on the contract, or if the plaintiff ought not to have been permitted to introduce paroi evidence, or if upon the whole evidence the plaintiff was not entitled to recover, the verdict was to be set aside and the plaintiff to be nonsuit; otherwise judgment was to be rendered on the verdict.
    
      Lee now insisted on the objection, that as there was a written contract under seal, assumpsit for work and labor could not be sustained. If the contract was broken, the action should have been upon the contract for the breach. If it was fulfilled by both parties, the chattels were the plaintiff’s, and if the defendant had taken them from him, the action mus have been trover &c. for that injury. So, if we suppose that in consequence of the boy’s being turned away wrongfully, the chattels became the plaintiff’s, and that he had sold them, a similar action would lie against the defendant for taking them, but it must be brought by the vendee and not by the plaintiff.
    
      
      Oct. 3d.
    
      The count for money had and received cannot be sup ported ; for if the defendant is liable in that form of action to any one, it is to Livermore, by whom the money was paid to him. Livermore cannot be considered- as the agent of the plaintiff; but even if he could, the money cannot be recovered back, for it was paid voluntarily, with a full knowledge of the fact, that the chattels were to remain the defendant’s until the service was performed. The plaintiff had broken the contract previously to the boy’s leaving the defendant, by selling the cattle. 2 Com. Contr. 41; Bilbie v. Lumley, 2 East, 469, and 471, note; Cartwright v. Rowley, 2 Esp. R. 723; Knibbs v. Hall, 1 Esp. R. 84.
    
      J. Davis and Rilen, for the plaintiff.
    The contract has been so far rescinded, as to justify this suit for compensation for the labor performed. The defendant says the plaintiff departed from the contract by selling the cattle ; and we say the defendant did so by improperly turning away the boy; so that there is a mutual departure. Giles v. Edwards, 7 T. R. 181; Gillet v. Maynard, 5 Johns. R. 85; Goodrich v. Laf flin, 1 Pick. 57.
    Should the plaintiff fail on the quantum meruit, he is enti tied to recover back the money paid to the defendant by Livermore. If he did not own the cattle, nothing passed to Livermore, and in paying the money to the defendant, Liver-more may be considered as the plaintiff’s agent. The money justly belongs to the plaintiff, and having been paid through mistake of legal rights, may be recovered back. Heard v. Bradford, 4 Mass. R. 330; Selfridge v. Gill, ibid. 95; Pearson v. Lord, 6 Mass. R. 81; Garland v. Salem Bank, 9 Mass. R. 408; Bond v. Hays, 12 Mass. R. 34; Homes v. Aery, ibid. 137. As the boy was turned away wrongfully, the plaintiff may be considered as having fulfilled the contract, and as warranting the title of the property to his vendee.
    
      Oct. 9th.
    
   Per Curiam.

The count for money had and received was not sustained by the evidence, because, if the contract was not rescinded, the property in the chattels was in the plaintiff ; his transfer to Livermore was valid; and the yielding by Livermore to the defendant’s demand, he knowing that the boy had been turned away, would give him no right of action against the plaintiff, and neither Livermore nor the plaintiff could maintain an action against the defendant for the money paid by Livermore.

The only ground on which the verdict can be supported, is, that the written contract was rescinded. The facts show that it was rescinded, and the defendant cannot now set it up again. The count upon the quantum meruit is therefore sustained.

Judgment for the plaintiff. 
      
       See Parsons v. Gloucester Bank, 10 Pick. 533; Dickens v. Jones, 6 Yerger, 483; East India Co. v. Tritton, 3 Barn. & Cressw. 280; Goodman v. Sayers, 2 Jacobs & Walk. 263; 2 Stark. Ev. (5th Amer. ed.) 67 and n. (b); Carter v. First Eccles. Soc. in Canterbury, 3 Connect. R. 455; per Hosmer, C. J. 2 Connect. R. 673; Mowatt. v. Wright, 1 Wendell, 355.
     
      
       See 1 Chitty on Pl. 118; Cranmer v. Graham, 1 Blackford, 407; Hoar v. Clute, 15 Johns. R. 224; Munroe v. Perkins, 9 Pick. 298; Linningdale v. Livingston, 10 Johns. R. 36; Dubois v. Del. Hud. Canal Co. 4 Wendell, 285; Plancké v. Colburn, 8 Bingh. 14. So where the special contract has been waived; Hayden v. Madison, 7 Greenl. 76; Newman v. M‘Gregor, 5 Ohio, R. 351 See Hayward v. Leonard, 7 Pick. 181.
     