CHAPTER XI. FOR MONEY PAID. No. 150. i. For Money Paid to a Third Party at Defendant's Request. [TITLE.] The plaintiff complains, and alleges: ......" I. That on the... ... day of... ..., 187., at..... at the request of defendant, plaintiff paid to one A. B....... dollars. II. That in consideration thereof, defendant promised to pay the same to plaintiff. III. That on the......day of......, 187., the plaintiff demanded payment of the same from the defendant, but he has not paid the same. [Demand of Judgment.] 1. Action for, when it Lies.-In this action there may be a recovery of money which an acceptor has paid for the drawer: Whitwell v. Brigham, 19 Pick. 121. Or which a surety has been obliged to pay for his principal: Ward v. Henry, 5 Conn. 598. In general it lies upon an implied engagement by the defendant to repay: Grissell v. Robinson, 32 Eng. C. L. 10. But the objection that there was a special agreement cannot defeat the action for money paid, when the written contract produced contained nothing more than what the law would imply: Gibbs v. Bryant, 1 Pick. 121. 2. Amount Stated.-Where the plaintiff in an action omitted to state the amount of money advanced and sought to be recovered, the defect is not cured by a bill of sale filed with the petition, though it contains a statement of the amount advanced: Allen v. Shortridge, 1 Duvall (Ky.) 34. 3. Demand.-No demand is necessary. It is inserted here only as an example of the mode of alleging demand when it is desired to fix a date for the commencement of interest. 4. Fraud. In an action to recover back money received by the defendant from the plaintiff, words in the complaint charging fraud may be regarded as matter of inducement. The fraud need not be proved: Harpending v. Shoemaker, 37 Barb. 270. Money fraudulently received from a bank may be sued for before the note given to the bank becomes due: Gibson v. Slevens, 3 McLean, 551. Or money received on a prize drawn by fraudulent means in a lottery: Catts v. Phalen, 2 How. U. S. 376. 5. Promise. This allegation is not absolutely necessary, as the law will imply a promise; but as an express promise is almost always made in such cases, it is better to state it. If no express promise is made, none should be pleaded: See Farron v. Sherwood, 17 N. Y. 227; see, also, Berry v. Fernandes, 1 Bing. 338. 6. Promise in Writing.-The Statute of Frauds prescribes that "every special promise to answer for the debt, default, or miscarriage of another," is void if not in writing. But it need not be alleged in the complaint that the promise was "in writing:" See p. 182, par. 76. Money paid upon a contract which is invalid under the Statute of Frauds, cannot be recovered back so long as the other party is ready and willing to perform on his part: Allis v. Read, 45 N. Y. 142. 7. Trustee of Express Trust.-Where a third person receives money due from a debtor to his creditor, and does not pay it over to the creditor, in consequence of which the creditor brings an action against the debtor and recovers his demand, the debtor may sue such third person to recover back the former payment: Priest v. Price, 3 Keyes, 222. No. 151. ii. By one having Paid Debt of Another, to be Repaid on Demand. [TITLE.] The plaintiff complains, and alleges: I. That on the. . . . . . . day of . . . . . . ., 187., at......., he paid to the use of the defendant, at his request, and on condition that the same should be repaid on demand, the sum of. . . . . . . . dollars, to one A. B., for one quarter's rent of the house then occupied by the defendant [or state the character of the debt]. [II. That the plaintiff, on the .... day of... 187., at ........ demanded payment of the same from the defendant.] III. That defendant has not paid the same. [Demand of Judgment.] 8. Demand. The allegation of demand is not in general necessary, except for the purpose of fixing the time for interest thereon. 9. Request.-An averment of request is necessary in a complaint for money paid: 2 Greenl. Ev. 93. But it may be either express or implied; and if implied, the facts raising it must be alleged: See Durnford v. Messiter, 5 Maule & Sel. 446. No. 152. iii. The Same-To be Repaid on a Specified Day. [TITLE.] The plaintiff complains, and alleges: I. That on the day of 187., at he paid to the use of the defendant, and at his request, the sum of ... II. That defendant promised to repay said sum, with interest, to this plaintiff, on the ... 187.. III. That he has not paid the same. .. day of [Demand of Judgment.] 10. Legal Liability.-The defendant's legal liability to pay the debt which plaintiff has paid, is an essential fact in an action to recover the money paid, unless there be an express promise by defendant to repay the the plaintiff: 2 Greenl. on Ev. 103, sec. 114, n. But a party who pays an illegal claim, without duress of person or of goods, or fraud on the part of the claimant, although he makes such payment under protest, cannot maintain an action to recover back the money so paid: Flower v. Lance, 59 N. Y. 603. No. 153. iv. For Repayment of Money paid on a Reversed Judgment. [TITLE.] The plaintiff complains, and alleges: I. That on or about the day of.. 187., judgment was rendered against this plaintiff in the District Court, county of State of California, in an action wherein the defendant was plaintiff, and this plaintiff was defendant, for the sum of dollars. II. That on the day of ., 187., at the plaintiff paid to the defendant the sum of dollars, in satisfaction thereof. III. That afterwards, on the ..... day of ... 187., by the judgment of the Supreme Court of the State of California, said first mentioned judgment was reversed; but that no part of the said sum paid in satisfaction thereof has been repaid to this plaintiff. [Demand of Judgment.] 11. Action. That money paid on a reversed or suspended judgment may be recovered back, see Raun v. Reynolds, 18 Cal. 276. 12. Judgment Reversed.-It must be shown that the judgment was reversed; it cannot be stated as erroneous: Bank of Washington v. Bank of U. S., 4 Cranch, 86; compare Mc Daniel v. Riggs, 3 Cranch, 167; Bank of Washington v. Neale, 4 Cranch, 627; White v. Ward, 9 Johns. 232; Roth v. Schloss, 6 Barb. 308. The award of a venire, de novo, to be issued by the Court below, and an order that the costs of reversal abide the event of the suit, are no bar to the action to recover back the money paid: Sturgis v. Allis, 10 Wend. 355. An action lies to recover back money paid under the award of a public officer, when such award was obtained by fraud and imposition, and where the payment was made before discovering the fraud: Michigan v. Phoenix Bank, 33 N. Y. 9; modifying same case, 7 Bosw. 20. No. 154. v. By Broker, for Money Advanced on Account of his Principal. The plaintiff complains, and alleges: I. That the plaintiffs are partners, doing business in the city of as brokers, under the firm name of A. B. & Co. II. That, as brokers, on or about the .... day of........... 187., they purchased for and on account of the defendant, and at his request, the following goods, wares and merchandise [designate them]-said goods, wares and merchandise to be paid for by the defendant at the expiration of ... ... days from the day of purchase, with the right to the defendant to pay for said goods, wares, etc., at any time before the expiration of said ...... days. III. That it is the custom of brokers in such cases to purchase the goods in their own names, without disclosing the name of their principal, and in case of the failure of the principal to pay for the same, to re-sell the goods on account of the principal. ... IV. That on the......day of........, 187, at plaintiffs offered to deliver said goods, wares and merchandise to the defendant, and demanded of him payment for the same. 187., V. That on or about the ......... day of the defendant paid to the plaintiffs, on account of the said purchase of goods, wares, etc., .. dollars. ...... VI. That at the expiration of the said ...... days, the defendant failed to pay the balance due for said goods, and the plaintiffs paid for the same, and to reimburse themselves, afterwards, on the ...... day of ..... 187., sold the same on his account, at [state the price]. And that there is now due and unpaid, from the defendant to the plaintiff, on account thereof, the sum of ..... dollars, and interest thereon from the date last aforesaid. [Demand of Judgment.] 13. Custom of Brokers. It is well to set forth the custom of brokers in such transactions: Whitehouse v. Moore, 13 Abb. Pr. 142. A custom of insurance brokers to take dividends declared by mutual companies in lieu of all other compensation, is bad: Minnesota C. R. R. Co. v. Morgan, 52 Barb. 217. 14. Demand. The plaintiff must aver that he demanded payment of the price, and offered to deliver the goods: Merwin v. Hamilton, 6 Duer, 244. No. 155. vi. For Repayment of Deposit on Purchase of Real Estate. [TITLE.] The plaintiff complains, and alleges: I. That on the ...... day of ...... 187., the plaintiff and the defendant made their contract in writing, subscribed by them, whereby it was mutually agreed that the said defendant should sell to this plaintiff, and the plaintiff should buy from the defendant, certain real estate [describe it], for the sum of ...... dollars, to be paid by the plaintiff; that the defendant should make a good title to the said premises, and deliver a deed thereof on the ...... day of 187.; and that the plaintiff should thereupon pay to the said defendants the said purchase money. II. That the plaintiff, as a security, as well for the performance of said agreement on his part, as to secure a performance thereof on the part of the defendant, then and there deposited in the hands of said defendant the sum of dollars, as part of said purchase money, to be to and for the use of the defendant, and to be retained by him on account of the purchase money, if the plaintiff should complete his purchase and receive the deed; but to be to and for the use of the plaintiff, and to be returned to him, if the defendant should fail to fulfill his agreement, to give a deed at the time and pursuant to the agreement. III. That he has always been ready and willing to do and perform everything in the agreement contained on his part, and on the said ..... day of 187., was ready and willing, and offered to the defendant to accept the deed of the premises pursuant to the agreement, and to pay to him the balance of the purchase money due therefor. IV. That the defendant did not on the said .... day of ., 187., nor at any time since, give him a deed of the premises pursuant to the agreement, but refused to do so. V. That on the ...... day of ... ..... manded of the defendant payment of the sum of dollars, deposited with him as aforesaid. VI. That defendant has not paid the same. [Demand of Judgment.] 187., he de |