
    CHARLES N. BLACK, Trustee, &c., Plaintiff and Respondent, v. SAMUEL B. WHITE, Defendant and Appellant.
    PAYMENT OF MONEY, PRESUMPTION AS TO.
    Promise to pat, when implied.
    Proof of the delivery of money, its reception and use, is not proof of an obligation on the party receiving and using it to return the same, and consequently does not establish an implied promise.
    In proof of a count for money lent, &c., it is not sufficient to. merely show that the plaintiff paid money to the defendant; such proof is prima fade evidence only of the payment by the plaintiff of his own debt, antecedently due to the defendant. The plaintiff must also prove that the transaction was essentially a loan of money to the defendant. A very slight circumstance may establish that it was a loan, or that it was paid at the request of the receiver, but there must be that circumstance to overthrow the legal presumption. 3 Greerileaf m JSvidence,
    
    § 113; Bogert v. Morse, 1 JST. Y. 377.
    In this case, to make an implied promise to pay, it should have appeared that the money was paid upon the request of defendant, either express or implied. It was error for the court to charge substantially that the law implies an obligation or promise to return the money from the fact of its receipt and use by the defendant, throwing aside all the testimony as to which there was a conflict.
    Before Sedgwick, Speir and Freedman, JJ.
    
      Decided June 25, 1877.
    Appeal from judgment on verdict for plaintiff, and order denying motion for new trial, made upon the xriinutes.
    The action is for the recovery of money advanced.
    The plaintiff’s case was as follows: Two firms, Hartshorne & Co. and Hartshorne & Brand, brewers, doing business in connection, failed in business and made an assignment for the benefit of their creditors to the defendant, who was one of the creditors. The defendant permitted or authorized the members of the insolvent firm to carry on the business with the assigned property for the benefit of the creditors. Nothing turns upon the validity or invalidity of this arrangement. Benjamin M. Hartshorne, a brother of a common member of the firms, placed §10,000 in the hands of the plaintiff with instructions to advance it to be be used in the business to be carried on, until the debts were paid, or until plaintiff should demand it, when it was to be paid to the plaintiff. On the trial, the plaintiff testified that he went to the defendant and stated his instructions, and the defendant assented to its being used in the business, until the debts were paid or until plaintiff should demand it, in which latter case defendant promised to pay it to plaintiff. Plaintiff then furnished the money to be used in the business. The money was invested and reinvested. Profits were made therefrom. The defendant closed up the business before the debts were all paid. The plaintiff demanded the $10,000, which was refused.
    The defendant’s case was among other things that the plaintiff told him that he was about to advance the money to Hartshorne & Co., and Hartshorne & Brand, and that they were to repay it on demand, that he (defendant), never promised to pay it; that after the assignment, it was necessary to work up some material assigned, and he authorized his son, Frank White, to do what was necessary for that purpose ; that he gave to Hartshorne & Co. and Hartshorne & Brand, no authority other than to collect debts.
    It appeared that the money furnished to plaintiff, was in part handed to Frank White, agent, and in part to the members of the insolvent firm. The evidence as to this was obscure, and required construction by the jury. It also appeared that in some way or other the money or malt purchased by it had been used in working up the materials assigned.
    The judge charged the jury that there could be no recovery unless the defendant had expressly promised to pay.
    But at the end of the charge the plaintiff’s counsel asked the court to charge that independent of the alleged agreement, if the defendant as assignee received and accepted the use of the money and profited by it, the law implies his promise to pay, on which a verdict may be founded, throwing aside the testimony as to which there is a conflict. The court charged agreeably to this request, to which defendant’s counsel excepted. The verdict was for plaintiff.
    
      Samuel G. Adams, attorney; A. J. Vanderpoel, of counsel, for appellant.
    
      Charles N. Black, attorney for respondent; Geo. Bowman, of counsel.
   By the Court.—Sedgwick, J.

In the hurry of the trial, I think the learned judge, did not scrutinize the language of plaintiff’s request. The jury could take it to mean, that, if outside of the conflict as to what was the express arrangement, they were satisfied that the defendant as assignee took the money and then used it, there was, as matter of law, an implied promise to repay it. I do not think that proof of delivery of money, of receiving it, and using it, is proof of an obligation to return, and is therefore not proof of an implied promise.

Greenleaf gives (vol. 2, § 112), the law: “In proof of the count of money lent, it is not sufficient merely to show that the plaintiff paid money or a bank-check to the defendant, f Or this, prima facie, is only evidence of the payment by the plaintiff of his own debt, antecedently due to the defendant. He must prove that the transaction was essentially a loan of money.” A very slight circumstance may show that it was a loan or that it was given at the request of the receiver, but there must be that circumstance to overthrow the legal presumption (Bogert v. Morse, 1 N. Y. 377). If there were such circumstances in this case, the attention of the jury was withdrawn from a consideration of it, inasmuch as the charge said that the law implied an' obligation from the receipt and use of money.

In this case, to make an implied promise from the receipt of the money, it should have appeared that the money was paid upon the request of the defendant, either an express or implied request. If the plaintiff gave the money at his own instance, it was nothing more than a gift. If he gave it at the instance of others, that would not create an obligation against defendant. So far as a request could be implied from the subsequent express promise, the jury might not have found that there was one, as the charge told them, that the receiving of money and profiting by it created an obligation, aside from the conflict as to the express promise. And indeed, the circumstance generally, outside of the arrangement in which the alleged express promise was made, do not conclusively show an actual or implied request. There was no express request, and there were no facts from which the law will imply one (Lampleigh v. Brenthwart, 1 Smith L. C. 222). The case Doty v. Wilson, 14 Johns. 378, cited in Lampleigh v. Brenthwart, says, “the benefit to the defendant connected with his express promise to pay, must be deemed equivalent to a previous request.”

I am of opinion that on the case as presented by the plaintiff, he could not recover except upon the express promise, as to which there was a conflict; but if he could, the defendant had a right to ask that the jury should pass upon what was the express arrangement, if he gave proof as to one, expressum facit cessare taciturn. A man may recover on a general assumpsit, provided he could recover if there had been no special agreement, although one in fact was made. As in this case, although there was an express promise, as alleged by plaintiff, the latter could have recovered without satisfying the jury of the promise, provided he showed a request on the part of the defendant that the money should be advanced.

If there was a special agreement, and he could not recover on that, he cannot recover on a general assumpsit (Robertson v. Lynch, 18 Johns. 451; Tuttle v. Mayo, 7 Id. 132). Here the defendant gave evidence as to the circumstances under which the money was actually advanced by the plaintiff. If the defendant were correct in his recollection, this would have showed that the money was advanced upon the personal promise of the members of the insolvent firms to repay it ; therefore the defendant must have succeeded, although perhaps, as matter of fact, the defendant received the money as assignee, and profited by it as assignee or creditor. Perhaps other construction of the arrangement might have been made. But outside of this, the evidence would bear the inference that the money was voluntarily paid, upon no request or promise of defendant, but that the plaintiff was to look only to the result after payment of debts. The jury could have made an inference from the defendant’s testimony, which would have shown that there was no implied promise, but an express arrangement under which he could not be liable. Therefore, I think it was error to charge that they might disregard defendant’s testimony, provided outside of it there was an implied promise to repay the money.

I am of opinion, that from the character of the plaintiff’s agency, as shown in his testimony, he could maintain this action.

For the reasons assigned, however, the judgment and order appealed from should be reversed with costs to appellant t,o abide event, and a new trial had.

Speir and Freedman, JJ., concurred.  