The Bedford gazette. [volume] (Bedford, Pa.) 1805-current, 1855-02-16
Wooa Court-Case stated.

/ T7T.F-- ~ I
the land, and report lis value peraere. B went
and looked at the land, and wrote to that II
was worth So per acre.
In 1853, no purchaser offering, B wrote TO
/ A that he would give 50 per acre the bargain
was closed and A conveyed The land to b. At
the time B wrote TO a the land was really
worth 81 A refunded the money 10 B for pay
| ing the taxes and also paid bim for his services
| in paving the taxes. A paid B nothing for
| looking at the land and b never made any
charge for il"
| Attornies for Plaintiff, Shannon, Fyan, Flrtch-
er, Reed Tate and Schel.
Auornips for Defendant, Barclay, Hall, Srang,
Bannan, Tate and Boyd
| The charge OF the court was delivered by
BLODGET (JNO. A. Justice.
/ The action brought hy A against upon the
above stated case was in form an action OF As
sumPsIT, embracing the usual counts, for money
laid out and expended, money had and received,
account stated and the usual counts found in the
| ordinary printed forms. The court are of opin
! ion, confining themselves 10 the facts embraced
in the ''casp stated, that the plaintiff has mlSa
ken his remedy, and that the present form of ac-
ton cannot be sustained, as there is a total and
| irreconcieable variance between the ''alegata
land probaa' between the cause OF action de-
! clared upon and the facts relied upon and srt
! forth in the sscaSe stated" and that a demurrer
to the evldencc embraced in the ''ca>e stated"
would be- fatal to the PLAINTIFFS recovery IN the
/ present form OF action.
The Count contained in the declaration '.for
money bnd and receiced," appears to be primer
/ pally relied upon. Certainly il does not appear
IN any part of the transaction, that the del,n-
dant, 3. was in the receipt Of any money what
/ ever. 1t does not even appear that B after the
delivery Of the deed to him by A sold the land,
or that he received any consideration for the
same. The very converse is the true state Of
the case B was the payor of the only money
that passed between the parties, and A was the
recipient.
II has been decided that an action for money
had and received, cannot BE- sustained without
proof that the defendant had actually received
monry 10 the plaintiffs use. | Dali. l4S, 222,
242. Lord Mansfield says, that the action for
money had and received is beneficial action
for the plaintiff, and particularly so for the de-
tpndant, because the defendant can be Liable no
further than for the money he has receiDed. II
is in fact an action to obIlGe the defendant to
refund ''er N termiR" precludrs the idea OF |ns
being auswerahle for more than he has actually
received. l Dali. 223. Here there was 80
fund to refund, the defendant not being in the
receipt Of any money whatever.
The plaintiff, however, bases his right TO re-
cover on the ground Of alleged nfSrrpreSeuia-
ton of the defendant. as 20 the value Of The
land, and says that the title to the land, was
obtained from him. by the defendant, through
circumvention and fraud. Were the allegation
never 50 true, the plaintiff could not recover un-
der the present declaration, for the defendant
has not been called upon 10 respond TO a charge
OF fraud. He is without notice, and therefore
all evidence offered TO establish FRAUD on the
part of the defendant would be a departure
from the alrgata and the subject Of rejection
from its illegiiimacy.
In this form Of action the plaintiff valves all
''ToRTs''-admits the right ofthe defendant TO
receive, and therefore can recover no more than
has accutallv come 10 the DEFENDANTS hands,
. Burr, zoos, Cowp. l4G, Bull n. P. l2S.-
Here there is not the slightest evidence TO show
that reaIzrd daIlar by the sale Of the land
purchased by him from A. Even had B sold
the land for four dollars per acre, h. must have
sold II his own, deriving his title from the deed
of A. and it is declared that .'AasUMPsIT will
not lie, TO recove the proceeds Of land, sold by
the defendant uuder a claim Of title as his own"
10 Waits, 339.
Suppose The plaintiff in his selection Of ac-
ton" had preferred an action upon the CASE,
in nature Of deceit, and set forth specially all
the facts embraced in the case stated, and The
defendant had answered, by producing the plain
tiff deed for the land: the onuS would be
thrown upon the plaintiff to prove that it had
been obtained from him by fraud and circum-
ventIon. There is nothing in the 'Stated CASE
importing fraud, and fraud cannot be inferred
from straining implications. Fraud is not 10 be
presumed, but must be established by proof!
1t is said that WAS the AGENT of A. He
may have been for special purpose, for The
mere payment Of taxes, but the amount paid by
him Tor taxes was refunded to him by-A, and
compensation paid 10 hun for bis services
There is Certainly nothing in the after transac
iionS between the parties. that can be drawn
from the :'Stated case" that would enable 4 10
sustain any form Of action whatever against B.
wrote 10 b in 1852, four years after the
special agency has expired, "reqHesfi8g" him
to examine the land and report It's value per
acre. b went and looked at the land and wrote
10 A that it was worth two dollars per acre
There is nothing so far, from which an Agency,
lin the true meaning and spirit of the word) can
be inferred, 1t was mere naked request from
one friend to another, creating no TRUST, im-
posing no duty, discharged by B without com
pensation and from courtesy alone. A whole
year expired without A making any further en-
quiry as TO the value OF the land. in 1888 mo
purchaser oGtring) b wrote to a that he wonld
give him two dollars per acre for the land, the
bargain was closed and A conveyed the land to
B. At the time Of the purchase of the land BY
B, all relationship between the parties from
which trust could be raised had ceased, and B |