Foster v. Bartlett
Supreme Court of New Hampshire
Assumpsit, on the defendant’s written agreement, in consideration of $1,000 received from the plaintiff, “ to pay said sum of ten hundred dollars to Daniel K. Foster, of Pittsfield, in said county, upon the said Daniel K. Foster’s giving a receipt in full settlement of certain suits at law now pending in court” in favor of Daniel K. Foster and against the plaintiff. The writ contains also a count for money had and received.
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Assumpsit, on the defendant’s written agreement, in consideration of $1,000 received from the plaintiff, “ to pay said sum of ten hundred dollars to Daniel K. Foster, of Pittsfield, in said county, upon the said Daniel K. Foster’s giving a receipt in full settlement of certain suits at law now pending in court” in favor of Daniel K. Foster and against the plaintiff. The writ contains also a count for money had and received. In the suits Daniel K. Foster against the plaintiff, the defendant was the plaintiff’s attorney. He paid $200 to Daniel K., who received that sum in full settlement of the…
1Opinion of the CourtCarpenter, J.
The plaintiff had his election to bring an action on the contract to recover damages for the breach of it, or to treat it as rescinded and recover the money as received to his use. Stevens v. Cushing, 1 N. H. 18; Drew v. Claggett, 39 N. H. 431, 433. The defendant’s payment of $200 affords no objection to the plaintiff’s pursuing the last named course. The defendant is not injured by the rescisión. Notwithstanding his partial performance of his agreement, he is restored to the situation he occupied before the contract was made. Luey v. Bundy, 9 N. H. 298, 302, 303; King v. Hutchins, 28 N. H.…
2Cited by1 opinion
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