RICHARDS vs. WEBSTER

RICHARDS vs. WEBSTER. Twelfth Judicial District Court, June, 1857. Money Had and Received. An action for money had and received can be maintained against a person who, receiving a check on a Banking house for the use of another, fails to present and collect it in proper time. This is a motion to set aside the Report of a referee. Reynolds, for plaintiff. McCabe, for defendant. The referee found that one Loring had burned a kiln of bricks upon the premises of defendant, under lease from him. That Loring left the kiln of bricks in charge of defendant, with in stractions to sell the same and pay the money to the plaintifis, after deducting his commissions. That Loring executed a chattel mortgage to the plaintiff upon the bricks after they had been burned and while they remained in the kiln. That afterwards defendant sold a portion of these bricks and took a check in payment for the same, which he still held, without even having presented it for payment. That at the time of receiving the check and for several days afterwards, the drawer thereof had funds in the bank, on which it was drawn, sufficient to pay it. He also found that after selling the bricks and receiving the check, Loring forbade him to pay the money to the plaintiffs. That plaintifis had demanded the same. The referee found and held as conclusions of law,- that the direction by Loring to the defendant to sell the bricks and pay the proceeds to the plaintiffs, was coupled with an interest in the plaintiffs and it could not therefore be revoked. He also held, that an action for money had and received, could be maintained by showing the receipt of a check upon which the money could be obtained by presentation for payment. [MAJORITY — Norton, J.] Norton, J. sustained the Referee’s report, and ordered judgment accordingly.