#### Wilkinson vs. Martin.

*Bounty. Money had and received. Va/riance.*

Action for $200 alleged to have, been received by defendant for plaintiff’s use. Plaintiff enlisted as a substitute for defendant, and .tbe latter demanded and received from the town $200 as bounty money.. There was evidence tending to show that defendant agreed to pay plaintiff the bounty money, expressed a belief that it would be $200, and promised to make up.thatsum.“ any way.” *Held,*

(i). That defendant could not object that the town was not authorized to pay a bounty to persons who enlisted as substitutes — the town itself not being a party, nor making any objection to plaintiff’s recovery.

(2.) That upon the evidence the jury might have found,- either that the .defendant hud received the $200 to plaintiff’s use, or that he had contracted absolutely to pay plaintiff-that amount.

(3.) That the whole evidence haying been received without objection, it is too late to object to a verdict and judgment for plaintiff, that the jury should not have been allowed to consider the question of such contract, under the complaint. Had the objection been taken in time, an amendment of the complaint, so as to let in the evidence, might have been allowed; and the variance must be disregarded on appeal.

APPEAL from the Circuit Court for *>St. Oroix*County.

Action for money had and received by the defendant from the town of Hudson, as bounty money,- for plaintiff's use; for money received by him for a horse sold for'plaintiff; and for work and labor done by plaintiff for defendant.-

The defendant alleges that he has fully paid for the work and labor, and denies all the other allegations of the complaint.

The testimony on the part of the plaintiff,, admitted without objection, tended to -show that a bounty of $200.had been offered by the town of Hudson for volunteers into the service of the United States, to fill the quota of that, town; that in 1864, the plaintiff, at, the solicitation of the defendant, ;wko had been drafted, enlisted as a substitute for said defendant, and was credited on the quota of said town; that, to induce him to do *472so, tbe defendant promised to give Mm thirty dollars and a pony, and also the town bounty, or, if such bounty did not amount to $200, to give him that amount “ any way,” and defendant was to keep the pony for plaintiff without charge until he returned; that defendant received the bounty of $200 from the town, on account of having furnished a substitute to its credit on its quota; and had sold the horse which plaintiff had of him, for $125, and received the money therefor, but had paid over only $55 of it to the plaintiff; and that plaintiff had worked for defendant two months, at the agreed price of $80 per month.

The testimony on the part of the defendant tended to show that the only consideration defendant was to give the plaintiff for enlisting, was the horse with the *$30,*and a saddle and bridle; that he was to receive pay for keeping the horse while plaintiff was absent; and that he had settled with the plaintiff, and had taken his receipt for $10, in full of all demands; which he produced. The plaintiff testified that he could not read nor write, and that he gave the receipt only for the $10 then paid him.

The charge of the court relative to the plaintiff’s claim fox bounty money, which is the material point in this case, appears in the opinion. The jury gave the plaintiff a verdict for $277.52; a motion for a new trial was overruled, and judgment was entered for that amount; from which defendant appeals.

*SaJcer & Spooner,*for appellants,

claimed that the verdict included the $200 bounty money, being far more than was claimed in the other counts of the complaint; that there was no proof that the defendant ever received any money from the town of Hudson, to which the plaintiff had shown himself entitled under any vote of the town; that the money received by defendant was paid to him for putting a *substitute*into the service, wMch payment was not authorized by any law, and would not relieve the town from its liability to the plaintiff as a volunteer, if he was entitled to bounty as such.

*473*H. A. Wilson & A. P. Weld,*for respondent,

contended that there was evidence to sustain plaintiff’s claim to tbe bounty money'; that, as no law existed at tbe time authorizing bounties to persons furnishing substitutes, the plaintiff was the only person entitled to the bounty offered, citing *Welch v. .Town of Sugar*Greek, 28 Wis., 618; that the defendant, having assumed to receive the money, was liable for it to the plaintiff, citing 3 Johns., 183; that he was also liable for it as a part of the consideration agreed to be paid for plaintiff’s enlisting; that the 'receipt was only *prima facie,*evidence, and open to explanation, citing *Hendrickson v. Beers,*6 Bosw., 639; and that this action is in proper form, the bounty money received by defendant belonging to the plaintiff, either absolutely or by virtue of an assignment from the defendant, citing *Woodward v. Hill,*6 Wis!, 143; *Bumondv. Carpenter,*3 Johns., 183; *Amidon v. Wheeler,*3 Hill, 137.

Cole, J.

We do not discover any error in this record which would warrant a reversal of the judgment. It is said that the jury must have found for the plaintiff on the first cause of action stated on the complaint, and it is objected that there was no evidence whatever tending to prove that the defendant ever received any money from the town of Hudson for his use. It, however, appears from the bill of exceptions that the defend-' ant, as a part of his own case, proved that he applied to the town for the bounty of two hundred dollars, and that, upon showing that the plaintiff had enlisted as his substitute and had been credited to the town on its quota, he was paid the bounty which the town was at the time paying, namely, the sum of $200. It appears, then, that the defendant did receive that sum from Mr. Matteson, the committee authorized to pay bounties for the town. But it is now objected that there was no law then existing which authorized the payment of bounties to persons furnishing substitutes, and that the bounty could only be paid to the volunteer himself, or to some one for *474bis use. All tbis may be admitted, and yet it may be true that tbe defendant really recéived tbis bounty as and for tbe plaintiff. It might well be assumed from tbe facts, that tbe town authorities saw fit to treat tbe plaintiff as a volunteer who was entitled to, tbe bounty, since be bad enlisted and bad been credited on its quota. Perhaps tbe town officers took this view of tbe matter. It is to be remembered that there is no one here objecting on behalf of the town that there has been a misapplication of its funds, ánd that tbe plaintiff is not entitled to receive.the money. Nothing of the kind. Tbe town has paid tbis bounty, and does not object, that tbe plaintiff should recover it. Why, then, should this defendant be permitted to raise the objection and say, “ True, I received tbis money from the town, but there was no law which authorized tbe payment of bounties to .any persons except volunteers, aiid, although I agreed to pay it over to tbe plaintiff, yet I choose now to retain it myself, and interpose a defense for tbe town that tbe plaintiff was ‘a' substitute and not entitled to tbis bounty.” Such a defense comes with ill grace horn the defendant.

On tbe trial, tbe plaintiff testified that' the undertaking and agreément between him and'the defendant was, that be was to receive this bounty money. And’ the plaintiff further testified that’he asked the defendant bow much it was, and tbe defendant replied that be thought it was $200, and that, if it was not that much, *lie would give the*$200, *any why.*There was surely 'a good consideration’for such a promise.

Tbe court, upon tbis point, instructed the jury that, if they should find-from the evidence that tbe agreement was that the plaintiff should have the to-wn bounty, as a part of the consideration for going as a substitute for the defendant, then the plaintiff was entitled to recover it in tbe action. Tbe jury either found that tbis agreement or undertaking was entered into between tbe parties, or they must have found that the defendant agreed to pay tbe plaintiff $200, in any event, besides letting him have the horse spoken of in tbe testimony; and, *475wbicb ever conclusion tbe jury reached upon the evidence, the verdict is right. In the former view, the bounty,'in equity and good conscience, belongs to the plaintiff, and the defendant may well be held to. have received it for his use from the town. And in the latter case, the defendant owes- the plaintiff. $20.0, which he agreed to. pay him *“any way.”*True,--if-the defendant agreed, to .pay the-plaintiff $200 as-a párt-bf the'consideration for the latter enlisting-as his substitute, his cause of aetion was this express agreement or contract, and not the money had and received. But all the evidence on both sides about the agreement for -the enlistment; was-admitted without-'objection. If. there-was any variance between the cause of action'stated in the complaint and the one proven on -the trial, the objection could have been obviated by an amendment. But no-, question of that-kind was raised in the court below.

In our view, the only-question we' have to consider is;‘Whether there is any evidence tending to support ' the veidict. We think there is. .There is testimony which tends strongly to .show that the agreement-between-the parties wasj>that the plaintiff was to have the bounty money paid: by; the' town. If so, it is very plain that the $200 belongs *ex cequo et. bono*to. the plaintiff and not to the defendant. If the defendant agreed to pay the plaintiff $200 in any event, (besides; the horse), as the consideration for the latter enlisting as his substitute,1 he has still less ground for complaining -of the verdict. The technical objection that (the plaintiff did not attempt to recover on the ■latter ground, would be disregarded-here, even-if-made.

*By the*Court.— The judgment of the-circuit court is affirmed.