
    William Gauld, Resp’t, v. Julius Lipman et al., App’lts.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed June 5, 1893.)
    
    1. Monet had and received—Acceptance of orders on fund.
    Defendants became obligated to advance money in instalments under a building loan agreement to one H., who gave plaintiff orders on them, which they agreed to pay out of certain instalments, but subsequently refused to pay on demand unless he would cancel a certain mortgage held by him against H. Held, that such refusal did not authorize an inference that the instalments had matured, and in the absence of evidence that such was the case, there was nothing to indicate that defendants had received the moneys to which plaintiff was entitled, and that an action for money had and received could not be maintained.
    2. Same.
    An implied promise in assumpsit does not arise when the party against whom the recovery is sought has incurred liability to the party seeking recovery for the same moneys upon an express contract of which no-breach or rescission is shown.
    Appeal from a judgment of the general term of the city court of New York, which affirmed a judgment at trial term entered upon a verdict directed by the court.
    Action -to recover in implied assumpsit for moneys alleged to have beendiad and received by defendants to plaintiff’s use.
    
      Jacob Fromme, for resp’t; George W. McAdam, for app’lts.
    
      
       Reversing 49 St. Rep., 880.
    
   Bischoff, J.

The complaint was upon defendants’ implied promise to pay one thousand dollars, alleged to have been had and received by them to plaintiff's use; and the answer denied the receipt of the money. On the trial it appéared affirmatively from the testimony of both defendants that neither of them had, in fact, received any money whatever for the plaintiff, and this was left unchallenged unless the remaining facts in evidence justify an inference of its receipt.

Defendants had entered into a building loan agreement with one George J. Hamilton, pursuant to which the former were to-advance the latter a specified sum of money in instalments. Hamilton was indebted to plaintiff in $1,000, and issued to him two-several orders on defendants, each for $500, which the latter accepted, one “ payable when the eleventh (11th) payment becomes due and payable according to terms of builders’ loan contract on premises n. e. corner Ninetieth street and Tenth avenue,” and the other “ payable when last payment becomes due and payable ” according to the terms of the said contract. Some time after the acceptance of these orders by defendants they were asked to pay the several amounts thereof, which they refused to do unless plaintiff would consent to release a certain bond and mortgage for $1,300 held by him against Hamilton, and which defendants claimed at the time operated, in a manner left to our conjecture, to prevent Hamilton from proceeding with work as a builder. Both parties having asked the court to direqt a verdict, such a direction was made in plaintiff’s favor.

We are of the opinion ^ that defendants’ motion. should have been granted or the complaint dismissed. Defendants’ refusal to pay unless plaintiff would release Hamilton’s bond and mortgage did not authorize an inference that the instalments to become due from defendants under their building loan agreement had matured, and in the absence of evidence that such was the case there was nothing to indicate that defendants had at any time received from any source whatever any moneys to which the plaintiff was entitled. Hence there was a failure of proof respecting the cause of action alleged in the complaint. Beardsley v. Root, 11 Johns., 464; Anthon’s N. P., 111.

Furthermore, an implied promise in assumpsit does not arise when the party against whom the recovery is sought has incurred liability to the party seeking recovery for the same moneys upon an express contract of which no breach or rescission has been shown. Raymond v. Bearnard, 12 Johns., 274; Jewell v. Schroeppel, 4 Cowen, 564; Chesapeake & Ohio Canal Co. v. Knapp, 9 U. S., 222; Bank of Columbia v. Patterson, 3 id., 351; Washington, A. J. G. S. Packet Co. v. Sickles, 13 id., 479; Demott v. Jones, 16 id;, 442; Ingle v. Jones, 17 id., 762.

In such a case, the party seeking recovery must abide by his contract. In the present instance, defendants are liable to plaintiff upon their acceptances to pay when the instalments under the building loan agreement have respectively matured. Until the maturity of the instalment is shown, the contract of acceptance must be regarded as subsisting and open.

Plaintiff could not, in this action, recover upon the acceptances because of the rule which requires the recovery to be secundum allegata et probata. Romeyn v. Sickles, 1 Silvernail’s Ct. App., 594; 108 N. Y., 650; 13 St. Rep., 864.

The judgment, of the general and trial terms of the court below must be reversed, with costs to the appellants to abide the event.

Daly, Ch. J., and Pryor, J., concur.  