Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1916-10-14
RESCR|PT FROM Law
COURT IN THE BITHER
vs.. PACKARD CASE
Judgment Entered for Plaintiff
for $4,000 with Simple Interest
at Six per cent. upon Pay
mentS

rescript handed down by Associate
Justice George E. Bird of Portland in
the Kennebec county case of B. Earle
Bfther of Augusta VS.. Justin E. Pack
ard of Augusta has been received at
the office of the clerk of courts of
kennebec county. The rescript states
that judgment may be entered for the
plaintiff for the sum of $4,000 with sim
pie interest at six per cent per annum
upon each of the payments of 5000
from the dates when respectively made,
to be cast by the clerk of the superior
court, to the day of the entry Of judg-
ment.
The rescript reads as follows:
kennebec county. B. Earle Bither
VS.. Justin E. Packard. Rescript, Bird,
This is an action for money had and
received by which the plaintiff seeks
the recovery of money paid to the de-
PENDANT, the payment of which was in
duced, as alleged by plaintiff, by
duress. the illegal and unjust advan-
tage taken bp defendant of plaintiffs
financial needs and condition and by
reason of an unconscionable contract
or agreemnt which was void or void
able and without consideration or any
adequate consideration.
AS general rule, wher money has
been received by defendant under
any safe of acts which would in a court
of equity entitle the plaintiff to a de-
cree for the money, when that is the
specific relief sought, the same state of
facts will entitle him to recover in an
action for money had and received.
There may be such unconscionable-
ness or inadequacy in a bargain as to
demonstrate some gros imposition or
some undue influence; and in such
cases courts of equity ought to inter-
fere, upon the satisfactory ground OF
fraud. But then such unconscionable-
ness or such inadequacy should be
made out as would Cto use an express
sive phrase) shock the conscience, and
amount in itself to conclusive and de-
cisive evidence of fraud. And where
there are other ingredients in the case
of suspicious nature, or peculiar re-
lations, between the parties, gross in
adequacy of price must necessarily
furnish the most vehement presump-
| ton of fraud.
| In case of fraud, as a general rule
! lle party ueITduOeu must ACT WIN
promptness on discovery of the fraud
But in case of that species of fraud
involving undeu influence or oppres-
sion, time does not begin to run against
the injured party until he is enamel
pated from the dominion under which
he stood at the date of the transac-
ton.
Where there is nothing to be done by
the plaintiff to place the defendant in
statu quo. the action for money had
and received is in itself RECESSION as
well as a demand.
Inter- upon the principles of the
common law, is to be allowed where
the law by implication makes it the
duty of the party to pay over the
money to the owner without previous
demand Where it was obtained and
held by fraud, interest should be cal
culated from the time when it was re-
ceived.
Judgment may be. entered for the
plaintiff for the sum of $S2O0,a with
simple interest at six per cent per an
mum upon each of the payments of
5000 from the dates when respectively
made, to be cast by the clerk of the
superior court, to the day of the entry
of judgment.
So ordered.