
    Frederick B. Richmond vs. Byron Read.
    MARCH 15, 1912.
    Present: Dubois, C. J., Johnson, Parkhurst, and Sweetland, JJ.
    
      {!) Actions. Money Had and Received.
    
    To support an action for money had and received there must be some privity between the parties in relation to the money sought to be recovered. This privity may be express or implied, and if one has the money of another, which in good conscience he has no right to keep, the law will imply a promise in such case, but where there are two claimants to the same fund, and one of them is recognized as being entitled to it by the person from whom it is due and is paid, the other cannot sue him to recover the money, for having received the money under a claim of right in himself, the law will not imply a promise by him to hold the money for the use of the other claimant.
    
      
      (8) Actions. Burial of Soldier.
    
    Where a town has paid under the provisions of Gen. Laws, 1909, cap. 105, §§ 1, 2, and 4 (of the burial of honorably discharged soldiers), the sum allowed for the expense of a headstone, to defendant, the person designated by the town council to attend to the interment of a soldier under said chapter, the court cannot determine, in an action for money had and received, brought against defendant by a third party who claimed the right to provide the headstone, (to which action the town is not a party), whether or not the town has paid the money to a person not entitled to the same.
    Assumpsit.
    Heard on exceptions of plaintiff, and overruled.
   Dubois, C. J.

This is an action of assumpsit for fifteen dollars, alleged to have been had and received by the defendant in March, 1909, for the use of the plaintiff, in erecting a headstone at the grave of Bradford Gavitt. The action was brought in the District Court of the Fourth Judicial District and thence was certified to the Superior Court upon claim of jury trial. Upon trial in the Superior Court the jury returned a verdict for the defendant by direction of the court. To this ruling of the court the plaintiff took an exception, .and also duly filed his motion for a new trial, which was denied by the justice of the Superior Court who presided at the trial. Whereupon the plaintiff duly excepted and has prosecuted his bill of exceptions before this court.

The question raised is whether in the circumstances of the case the action will lie. The facts material to the present consideration are as follows: Bradford Gavitt aforesaid, an honorably discharged soldier of the civil war, died in the town of Coventry, January 27, 1909, without leaving means sufficient to defray his necessary funeral expenses; he was therefore buried by the defendant under the provisions of Gen. Laws, 1909, cap. 105, whereof Sections 1, 2, and 4 read as follows: “Section 1. Whenever any person who served in the army, navy, or marine corps of the United States during any period of war, and was honorably discharged therefrom, shall die within this state without leaving means sufficient to defray necessary funeral expenses, he shall be buried and the expenses thereof paid in the manner hereinafter provided.

“Sec. 2. The town council of any town and the board of aldermen of any city, shall annually designate some proper person, other than those designated by law for the care of paupers or the custody of criminals, who shall cause to be interred the body of any such honorably discharged soldier, sailor, or marine who may not have left sufficient means to pay his funeral expenses; and in case the deceased has relatives or friends who desire to conduct the burial and who are unable or unwilling to pay the charge thereof, they shall be allowed to conduct the funeral, and the cost of said interment shall be paid to them or their representatives by the town or city treasurer upon due proof: Provided, however, that claim for payment of the same under the provisions of this chapter shall be made within sixty days after the decease of such honorably discharged soldier, sailor, or marine; and provided that the whole expense of such funeral shall not in any case exceed the sum of thirty-five dollars.” . . .

“Sec. 4. The grave of any deceased soldier, sailor, or marine who. may be buried under the provisions of this chapter shall be marked by a headstone containing the name of the deceased, and, if possible,, the organization to which 'he belonged or in which he served. Such headstone shall cost not more than fifteen dollars, and the expense of such headstone and burial shall be a charge upon and shall be paid by the town or city in which the said soldier, sailor, or marine may have died.”

The defendant was the person properly designated by the town council of said town to cause to be interred the body of said soldier and for the expense of the funeral the sum of thirty-five dollars was allowed and paid to him by the town of Coventry. About March 17th of the same year the town also paid him the sum of fifteen dollars for a headstone for the grave of said soldier, and thereupon the defendant ordered one James Ray to prepare and suitably mark according to law and set up at the grave of said soldier before Memorial Day, 1909, an appropriate headstone and promised to pay him the sum of fifteen dollars therefor. Said James Ray accordingly did prepare and mark the same and deliver it at the grave of said soldier in the month of May, 1909, before Memorial Day, and was then and there ready to properly set the same, but was forbidden to do so by the niece of the deceased, who is also the plaintiff's wife, who owns or controls the burial lot wherein said Bradford Gavitt is buried. The defendant paid said sum of fifteen dollars for said headstone to said James Ray on or about June 1, 1909. The reason why the wife of the plaintiff forbade-the erection of the stone so prepared and delivered by James Ray at the grave of her uncle was that she had caused her husband to prepare, furnish and set a stone at said grave, at an expense of twenty-five dollars, which stone was not only more expensive but, in her estimation, more suitable for that purpose and she claims that she was authorized to order the stone and that her husband is entitled to receive the sum of fifteen dollars paid by the town to the defendant to be applied toward the payment of the stone furnished by him at her request. The plaintiff did not nor did his wife notify the town or the defendant of her intention to furnish a stone for the grave of her uncle, before the stone prepared by Ray had been ordered by the defendant and paid for by the town. In fact the first notice that either Mr. Ray or the defendant had that the plaintiff was intending to furnish such a stone was when Mr. Ray brought the stone prepared by him to the grave to set it up. Neither did the plaintiff or his wife know that Mr. Ray was preparing a stone for the grave of her uncle under orders from the defendant.

The question to be decided is not which of the two claimants is entitled to the fifteen dollars appropriated by the town for the purpose, but whether the defendant received the money in question for the use of the plaintiff. To support an action for money had and received there must be some privity existing between the parties in relation to the money sought to be recovered. This privity may be express or implied. If one person has the money of another, which in good conscience he has no right to keep, the law will imply a promise to pay it over. See 27 Cyc. 857, A. and cases cited. But where there are two claimants to the same fund, and one of them is recognized as being entitled to it by the person from whom it is due, and is paid, the other cannot sue him to recover the money, for the reason that, having received the money under a claim of right in himself, the law will not imply any contract or promise by him to hold the money for the use of the other claimant, or to pay it over to him, and therefore there is not, under the circumstances, any privity of contract on which to found the action. 27 Cyc. 859, C. and cases cited. Moreover; it would not be proper to determine, in an action of this kind to which the town of Coventry is not a party, whether or not the town had paid the money to a person who was not entitled to receive the same. For these reasons we are of the opinion that the action was improperly brought.

Lewis A. Waterman, Ernest P. B. Atwood, for plaintiff.

Quinn & Kernan, for defendant.

The plaintiff's exceptions are therefore overruled, and the case is remitted to the Superior Court, with direction to enter judgment on the verdict.

Frank L. Hanley, for plaintiff.

Frank T. Easton, for defendant.  