McClellan v. Anthony

The promise of the defendant is an absolute one to pay to plaintiff $500. The direction in the order for defendant to deduct it from Davis’s last payment on his contract, may fix the time when it is to be paid, and shows a sufficient consideration for the promise, but cannot justly, according to the terms of the order, be regarded as a condition to the promise. But even if it were a condition, it has been performed, and the promise became absolute before suit brought.

The work done by Davis for defendant, constituted a valid consideration for the promise, and the case then presents itself in the form of an absolute promise for a valuable consideration, and, if so, it can be enforced. The only question is, in what form of action.

The promise is to pay the plaintiff, and the action may be brought in his name. (Quin v. Hanford, 1 Hill, 84; Morton v. Naylor, id. 585; Israel v. Douglass, 2 H. Bl. 241.)

And the claim may be enforced under the count for money had and received. (Quin v. Hanford, supra; Weston v. Barker, 12 J. R. 278; Rockefeller v. Robinson, 17 Wend. 206.) The language of the court in Israel v. Douglass (2 H. Bl. 239), is so expressive of the principle which governs this case, that I adopt it. Lord Loughbobough says: “ Where a party has not the substantial justice of the case on his side, the court will not favor any action he may bring. But where *287justice is clearly with him, they will, if possible, allow him to maintain the action he has brought, because the only effect of a refusal would be to make him adopt another form of action.” In this suit the justice of the case is clearly with the plaintiff. The defendant has received a consideration for the $500 now demanded of him. He is bound to pay some one, and what valid objection can he have to paying it to the plaintiff, when, by doing so, he can be fully protected from paying it again ? If his refusal is to inure to benefit of Davis, by enabling him to receive it from Davis, it will be equally wrong to enable Davis thus to nullify a valid assignment of the claim to the plaintiff.

Then the language of Gould, J., in that case applies: “ This case is like that of a man having money due me in his hands, which I order him to pay to another. Now, if I pay money to you for another person, it is money had and received by you to his use. But where is the real and substantial difference whether I in fact pay money to you for a third person, or whether I give you an order to pay so much money, to which you expressly assent? In reason and sound law it is money had and received to the use of such third person.”

See Nielson v. Blight (1 Johns. Cases, 205, 2d ed., note a to page 210).

Judgment for plaintiff.