Tibbets v. Gerrish
Superior Court of New Hampshire
Assumpsit. The writ was dated June 6th, 1850, and contained two counts. The first was as follows: “ for that the said defendant, at said Dover, on the 28th day of August, 1845, by his promissory note of that date by him subscribed, for value received, promised one William T. Wentworth to pay him, or order, the sum of forty dollars on demand, to be paid in hard wood, at market price, all to be paid by the first day of January, 1846, to be delivered at Great Falls; and the…
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Assumpsit. The writ was dated June 6th, 1850, and contained two counts. The first was as follows: “ for that the said defendant, at said Dover, on the 28th day of August, 1845, by his promissory note of that date by him subscribed, for value received, promised one William T. Wentworth to pay him, or order, the sum of forty dollars on demand, to be paid in hard wood, at market price, all to be paid by the first day of January, 1846, to be delivered at Great Falls; and the said William T. Wentworth thereafterwards, on the same day, indorsed ánd delivered the said note to the plaintiff, of which…
1Opinion of the CourtEastman, J.
It is settled in this State, that a count for money had and received cannot be sustained by a note or contract like the one in suit. Even were the action brought by Wentworth, the payee, and were there no defence of infancy, a recovery could not be had upon a general declaration for money had and received. Such is the direct doctrine of Wilson v. George, 10 N. H. Rep. 445.
It seems, however, to be equally well settled here, although a different doctrine prevails elsewhere, that an action can be maintained upon a contract of this kind in the name of the payee, by declaring specially as upon a…
2Cases cited7 opinions
- Crocker v. WhitneyMassachusetts Supreme Judicial Court · 1813
- Merriam v. WilkinsSuperior Court of New Hampshire · 1833
- Odiorne v. OdiorneSuperior Court of New Hampshire · 1831
- Hale v. GerrishSuperior Court of New Hampshire · 1836
- Currier v. HodgdonSuperior Court of New Hampshire · 1824
2 more not listed; retrieve them via the Exa API.
3Cited by1 opinion
- Fletcher v. ChamberlinSupreme Court of New Hampshire · 1881