
    Tuttle against Mayo.
    NEW-YORK,
    Nov. 1810.
    Where the on’a^pecfaTaattempST’to ‘™edbut111' gether, he may recover on a general count in his declaration, if the case be there had'been me.ru^he* might have are™e¥ncJ“j count,as for money had and reeeived.
    It is not liecessary, in all positive evidence antMs^eceived" SrtoythbpMni frombtheWfacts proved, it may fairly be presumed the flefendant lias re* eeived the plaintiff may reliad and received to his use.
    THIS was an action of assumpsit. The declaration contained five counts. The first.was on a special agreement, for that whereas the defendant, on the 28th of July, at, &c. in consideration that the plaintiff, at the special instance and request of the defendants would , x cause to be delivered to the defendant 36 barrels of pork, 1 on sale, or to return the same to the plaintiff, when thereto afterwards requested, the defendant undertook, &c. to return the said 36 barrels of pork to the plaintiff, when thereunto requested, or otherwise the defendant would be the buyer thereof, or be accountable to the plaintiff J *■ for so much as should not be returned, at thé price . . of 21 dollars per barrel, saving to himself 12 1-2 per cent, for selling, and would pay to the plaintiff the said 21 dollars per barrel for the same, &c. The plaintiff averred the delivery of the pork, pursuant to the agreement, and that the defendant did not, afterwards, when requested, &c. return the 36 barrels of pork, or any 1 . J part thereof, &c. The second and third counts were for * sold and delivered; the fourth, for money paid, &c. and the fifth, for money had and received to the use 01 the plamtllh
    To the first four counts, the defendant pleaded non assumpsit, and gave no answer to the fifth, on which a default was entered. The jury were authorized to assess the damages on the fifth count, as well as to find the truth of the issue joined on the other counts.
    
      The plaintiff produced the receipt of the defendant for 36 barrels of pork of the plaintiff, dated the 18th of July, 1808.
    It was proved, that the defendant had admitted that 6 barrels had been left with one Corbin, to be sold; that 10 or 12 had been delivered to the plaintiff’s order, and that 18 remained in the defendant’s possession. Four of the barrels left with Corbin were returned to the plaintiff, and the other two were sold.
    The defendant’s counsel moved for a nonsuit, on the ground, that the evidence did not support the first count on the agreement, but the motion was. overruled by the judge. It was admitted, that the plaintiff was entitled to recover 37 dollars, for the two barrels sold, under the fifth count. The judge charged the jury, that the plaintiff was entitled to recover for the 18 barrels not returned, at the rate of 21 dollars, deducting 12 1-2 per cent. commissions on the amount, with the interest, from the 21st of March, 1809; and the jury found a verdict accordingly.
    A motion was made to set aside the verdict, and for a new trial, for the misdirection of the judge. The case was submitted to the court without argument.
   Per Curiam.

On the trial, the plaintiff gave in evidence the defendant’s receipt, for 36 barrels of pork, in store, to be delivered to the plaintiff’s order; no other evidence was given in support of the special count. But from the evidence it appeared, that part of the pork had been sold; and the money was in the defendant’s hands. With respect to another part of the pork, though there is no direct evidence that the defendant sold it, the inference is irresistible that he had sold it, and had the money in his pocket.

There is some contrariety in the books, on the question, whether a plaintiff, after having attempted to support a count on a special agreement, and failed, may resort to the general 'counts ? We think the rule laid down by Sir James Mansfield, in 4 Bos. & Pull. N. S. 355. is correct and accurate, and therefore adopt it; it is this, where a party declares on a special agreement, seeking to recover thereon, but fails altogether, he may recover on a general count, if the case be such, that supposing there had been no special contract, he might still have recovered. In this case the plaintiff failed wholly in making out a special agreement, and under the count for money had and received, the evidence entitled him to recover.

It is not necessary, in all cases, to give positive evidence, that the defendant had received money belonging to the plaintiff. Where, from the facts proved, it may be fairly presumed he has received the plaintiff’s money, the action for money had and received is maintainable» (Doug. 137.)

The verdict is perfectly just; and unless some legal principles have been violated, and we think none have been, there ought not be a new trial.

Motion denied.  