
    N. A. Peay, v. David Aiken.
    Defendant purchased land of another against whom a third person had a large execution; defendant retained a part of the purchase money and promised to apply it, by a certain time, to the payment of that very execution; before the expiration of the time limited, plaintiff purchased the execution, and it was regularly assigned to him; defendant thnn renewed to plaintiff the promise to pay the money in his hands to the execution. Held, that there was a clear consideration for the promise, and that the money in the hands of defendant was applicable to the execution which belonged to plaintiff.
    In an action for money had and received, the possession of the plaintiff’s money is considered enough to «support the implied promise; much more must that be the case when the person in possession promises to pay.
    Tried before Mr. Justice Fkost, at Fairfield, Extra Term, July, 1846.
    In this action of assumpsit, the plaintiff claimed from the defendant $1,541, under the following receipt: “Daniel M’Mahon v. Nath. Ford, et al.” “Received of N. Ford, $1,541, to be paid on the annexed stated case, at Spring Term, 1843;” “signed by the defendant.” “Indorsed in his writing,” “this receipt to bear interest from 20th Nov. 1842.” The execution of M’Mahon v. N. Ford, el al., had been assigned to the plaintiff, the 6th March, 1843. A. W. Yongue proved that, (after the assignment of the judgment, he thinks,) he was present when the plaintiff shewed to the defendant the receipt; and the defendant said he would settle it on the judgment. The witness was present at a second demand by the plaintiff, when the defendant said the plaintiff had not complied with his agreement, and ho, (defendant) would not perform his. Plaintiff denied that he had not done all he had agreed to do, and they got to high words. No condition was annexed to the first promise of defendant to pay the amount of the receipt. It appeared that the plaintiff had paid and taken assignments of several judgments against N. Ford. The Sheriffhad sold property ofFord to a large amount, sufficient to have paid the execution stated in the receipt. The plaintiff had given the sheriff receipts on account, but none of the executions had been satisfied. The plaintiff would not settle the execution of M’Mahon, because he claimed the payment from the defendant, and the application of that sum to the said execution. With this view, he had directed the sheriff not to apply the fund raised by a sale of Ford’s property, to the satisfaction of the M’Mahon execution.
    A motion was made for a non-suit, on the grounds taken in appeal, and refused.
    It appeared in the defence, that the defendant had purchased a tract of land from Ford, in November, 1842, for $3,700. The terms were cash. After the defendant had settled for the rest of the purchase money, Ford desired that defendant should pay the amount stated in the receipt, to the execution of M’Mahon, and defendant retained the amount, and gave the receipt to Ford. The plaintiff held by assignment, two judgments of Kirkpatrick & Co., v. N. Ford. The judgment of M’Mahon was entered Dec. 8, 1842; one judgment of Kirkpatrick was entered up in May, 1842, and the other in Feb., 1843. It appeared, in the course of the testimony, that the balance of the sales in the sheriff’s hands, if part were applied to M’Mahon’s execution, would not satisfy the second execution of Kirkpatrick. The defendant offered in evidence, an execution which he held against N. Ford, entered the 1st March, 1844, for $5,000. This was rejected, but the fact was assumed in argument, and in the charge to the jury, as if the proof had been admitted.
    The jury were instructed that, the promise by defendant to the plaintiff, if they believed it to be unconditional, did create an express contract between them: and that the promise was on sufficient consideration, having been made in pursuance of the defendant’s obligation to apply the money he had received from Ford, to the purpose for which he had received or retained it. It was suggested to the jury, that the contest between the parties was, which should apply this amount to the payment of his execution. The defendant claimed to discount the amount against his junior judgment, and the plaintiff claimed that it should be applied as Ford had directed'—-whereby the balance of the sales would be applied to the payment of Kirkpatrick’s judgment against Ford, which was older than the defendant’s, and had been assigned to the plaintiff; and that the consent of Ford to such application of the proceeds of the sheriff’s sales, might be inferred from his transfering the defendant’s receipt to the plaintiff; and because it would be conformable to the order of legal preference in the payment of judgments and executions.
    The jury found for the plaintiff, and ihe defendant appeals on the grounds annexed.
    The defendant gives notice that he appeals in this case, and will renew his motion for a non-suit, on the following grounds;
    1. Because there was no privity of contract between the plaintiff and the defendant.
    2. Because the promise of the defendant to pay the plaintiff the sum of 11541 44, supposed to be proved by A. W. Yongue, was only a nudum pactum.
    
    3. Because there was no evidence of any unconditional promise on the part of the defendant, to pay the plaintiff the said sum of #1541 44, on account of a certain receipt which the defendant had given to one Nathaniel Ford; the proof being an acknowledgement in the presence of said A. W. Yongue, in which the defendant said he had promised to pay the same on certain conditions, with which the plaintiff had failed to comply on his part.
    4. Because the execution of Daniel M’Mahon v. Nathaniel Ford, et al., was fully paid by the sale of Nathaniel Ford’s property, long before the commencement of this suit- and the sheriff had failed to enter satisfaction, at the request of the plaintiff.
    5. Because it is not alleged in the declaration, that plaintiff has any interest whatever, in the receipt given by defendant to Nathaniel Ford, except so far as it secured the payment of the execution of Daniel M’Mahon v. Nathaniel Ford, et al., to the amount specified in that receipt; and inasmuch as that execution was paid by the sales of Nathaniel Ford’s property, the plaintiff sustained no damage by the non-payment of the money by the defendant, Aiken.
    6. Because, from the allegations in the plaintiff’s declaration, and the evidence given at the trial, the plaintiff shewed no cause of action.
    
      In case defendant fail in his motion for a non-suit, ho will move for a new trial, on the following grounds:
    1. Because the Court rejected the execution of David Aiken v. Nathaniel Ford, for five thousand dollars, entered in the sheriff’s office on the 1st March, 1843, offered in evidence by the defendant.
    2. And upon all the above grounds taken for a non-suit, as far as they may be applicable.
    M’Dowell & Thompson, for the motion.
    DeSaussure & Boyce, contra.
    
   O’Neall J.

delivered the opinion of the Court.

The various grounds for non-suit seem to me to be resolvable into two: 1st. Was there any consideration to support the promise? 2d. Was the promise proved? The allegations, that there was no privity of contract, depends upon these: for if there was a consideration and a promise, it is in vain to talk about want of privity. Indeed, as I said in Brown v. O’Brien, if the money be the money of the plaintiff, that is enough to support the action.

1st. If there were a consideration sufficient to raise an implied promise, there can be no doubt that it is quite enough to support the express promise. The facts when put together make up on this point the following case: the defendant bought the land of Nicholas Ford, against whom Daniel M’Mahon had a large execution. A part of the purchase monev the defendant retained, and promised to apply by a particular time to the payment of that very execution. Before the expiration of the time limited, the plaintiff purchased the execution, and it was regularly assigned to him. He received the receipt from Ford, and presented it to defendant, who promised to pay it. To any plain mind, there would seem to be no doubt that the plaintiff was entitled to receive the money in the hands of the defendant. The same is, I think, the proper legal conclusion. M’Mahon the original owner of the execution, could have beyond all doubt considered the money paid to Aiken as his, and compelled him to pay it; for the payment to the defendant was to the use of the person to whom the execution belonged. M’Mahon did not however claim the fund while the execution belonged to him. Indeed, the time of payment had not elapsed when he transferred the execution to Peay, who thereby became entitled to all the incidents of the execution: he found Aiken had received part of the money, lie might, if he chose, regard him as his agent, and malic him account for it. I can see no difference, in this respect, between the case before us, and that of the sheriff who had collected money on the_/?. fa. before it was assigned. lie could not refuse to pay it to the assignee. Why? not because it was collected for the plaintiff, but because it was applicable to the execution which belonged to the plaintiff. So here, the money in Aiken’s hands is of right applicable to the execution, and hence the plaintiff may demand it. The action is not on the receipt, it proceeds upon the notion that the money belongs to tire plaintiff. Let it be asked, ex cequo etbono, to whom is the money payable? The answer is, the plaintiff? Hence, I should have no difficulty in saying that there would be an implied momisc arising from the facts stated, but when an express promise is alleged and proved, there can be no doubt; for the defendant has the money of Ford, which he has promised to apply to this very execution. The plaintiff is in possession of his receipt, and when it was presented to the defendant, he promised him to pay the money. This makes out a clear consideration for the promise. In Chitty on Con., 54, A., Patterson J. recognises and enforces the rule, that in an action for money had and received, the possession of the plaintiff’s money is considered enough to support the implied promise. Much more must that be the case, when the person in possession promises to pay. But it is said the plaintiff did not enter satisfaction on the execution. I know no law which compelled him to do so; for he had the right to hold the execution open until satisfaction in fact resulted. But the defendant has nothing to do with that question. Ford might possibly make it in another forum, and insist that Peay should elect his remedy. To Aiken, it is on this question perfectly immaterial whether the execution be satisfied or not. He has money applicable to the execution, and to it, it must be paid, and from it, when applied, satisfaction may result.

2d. The consideration being enough to support the promise, there can be no doubt of the plaintiff’s right to recover. For the proof is clear, that he promised Peay unconditionally to pay the money, after the execution was assigned to him.

The motions for non-suit and new trial are dismissed.

Evans J., Wardlaw J., and Frost J., concurred.

Richardson J.,

dissenting. After Aiken gave the receipt to pay the judgment of M’Mahon v. Ford, Peay got an assignment of the judgment of M’Mahon, and received Aiken’s receipt from Ford; Aiken then told Peay he would “settle the receipt on the judgment;” and these were the terms of the receipt. It is an important fact, that there is in the sheriff’s office money bound by this judgment, and enough to pay it. In the mean time, Aiken had acquired a junior judgment and execution against Ford. But the execution will not be covered by the money in the sheriff’s hands. Aiken would therefore avoid paying his receipt to Ford, in order to keep the money to pay off his own execution against Ford. This may be done without injury to Peay, who is secured by the money in the sheriff’s office : legally this is his money, and Ford discharged. There is then manifestly a fair and rational cause of objection on the part of Aiken; and the pursuit of him, on the receipt by Peay, is rather a severe, because a superflous application of his contract with Ford. But how stands the law? is the question. If Aiken were sued on the receipt, without the verbal promise made to Peay,—Peay could not recover; because by the receipt, Aiken stands as the mere agent of Ford, and Ford alone could sue upon it. None can doubt this. But can the verbal promise, without valuable consideration, make any difference in Peay’s right to bring the action? none. A takes B’s receipt for $1,000, to be deposited in bank; B neglects to deposite; A piaces the receipt in the hands of C, originally a stranger to the transaction; B then promises C he will settle it with the bank. Does this authorise C to maintain a suit except in the name of A? Assuredly none but A can sue upon this unassignable receipt. The verbal promise can be no more than a reiteration of the written promise. It is like the everyday promise of an agent to pay a note or open account. How can any such promise shift the contract from one man to another? But again—in suits at law, there is nothing more to be guarded against than the covering a contract and suit under a popular name: Justice unites with the contract to forbid such a device; it is dangerous to impartial justice. But in any view, this receipt to Ford, when in the hands of Peay, can amount to no more than a collateral guaranty of the assigned judgment of M’Mahon v. Ford. But there is another strong reason, if net an estoppel to Mr. Peay’s present suit upon the receipt, when taken as a guaranty, or an express promise to Peay. The judgment of M’Mahon is actually paid and satisfied by the money in the hands of the sheriff. It is as certainly paid as if satisfaction had been entered on the record. But Peay refuses to take out the money. What then? why he has made the sheriff his cashier. But his judgment has not the less been fully paid. It is the same as if Peay had received the money. And it then follows, irresistibly, that Peay has no right of action, unless his name in the suit is to be read “Nathaniel Ford,”—who has paid the judgment to the sheriff, the proper agent of Peay, the assignee of the plaintiff M’Mahon; and stands discharged. It is therefore not only a hard, but an illegal action, in the hands of Peay. Mr. Ford would have an action of undoubted merits; but he cannot transfer it to Peay. Aiken too may have demerits in not fulfilling his engagements; but these cannot be arrayed against him by Peay. At his peril, says Steven, every plaintiff must shew that he has in himself a right of action. How then docs the case stand? Aiken owes Ford the money on the receipt. Ford is the promissee, and the receipt cannot be transferred. Peay cannot sue on it. But Aiken has again declared to Peay he will settle the judgment, i. e., he will fulfil the receipt. This verbal promise would not, of itself, bind Aiken, because he would be liable twice;—first on the receipt to Ford, and then on the promise to Peay; and yet, out of these promises, each contributing nothing; and when too, the judgment is actually satisfied. Peay’s action is supported by a verdict. Surely there ought to be a non-suit.

Butler J., concurred.  