Avery v. Kinsman

If the plaintiff had declared simply, on the defendant’s receiving his money to his use, there would have been room for an implied promise to repay it; but when the declaration goes further, and expresses the money to have been received to account, there is no ground left for such implication. An action of account being brought for this money, the defendant would be allowed to show, that he liad laid out, or expended- it, according to the direction of the plaintiff; but as the action is now brought, nothing but pay*355ing tbe money to tbe plaintiff can be a performance: For a promise to pay, and a promise to account, are substantially different, and admit a different mode of trial, issue, and judgment.

dissenting. Tbis, is an implied assumpsit.— Tbe objection to tbe declaration is — That there was no debt to mise tbe promise: For, that tbe receiving tbe plaintiff’s money "to bis use, and to account with him therefor,” was a receiving a,s factor, to lay out and render an account of tbe profits. The words, we apprehend, do not import tbis. Where such is the receiving, and suit is brought, the words, are, ad proficiendum, or ad mcrchan-disandum et compuiandum. Receiving money to tbe use of another, or to account with him for it, are; in common understanding, convertible terms; and where, as in tbis case, both are used, but one thing is intended, as by tbe words assumed and promised. Receiving money generally to ac-account for, or be accountable, without more said or agreed, does not give tbe receiver authority to merchandise with it, upon tbe account and risk of tbe payor, or him to whose use it is received, but bolds him chargeable in debt for it. All our book debts are matters of account. Tbe articles charged are, in tbe diction of tbe statute, to be accounted for, and are so received; yet debt lies. And wherever one receives money to tbe use of another, he is, in law language and common parlance, to account for it; (which is all the plaintiff has said here) yet indelitatus assumpsit always lies in such case. And this being an equitable action, and admitting equitable grounds of defense, the defendant hath advantage under the general issue, of discounts on book, or offsets against other simple contract debts; which, in our opinion, is all the benefit *356of accounting that the declaration, in this case, imports him entitled to: ■ — Wherefore, we think the declaration, though informal, substantially good.