Harris vs. Stevens

Harris vs. Stevens.

S, on the 6th March, made a-written proposal to H, to convey to the latter all his right and titlein certain shares in a turnpike, at $5 per-share, provided XT gave security for the price'by the SlthAIarelu After this, S received, a dividend-upon the shares, and H not being apprized that the dividend had been receiv-. ed, on the 18th March gave security for the price, and took.a conveyance of all the interest S then had in the shares.. It.was held, that the dividend-received by S belonged to tí, and might he recovered in an action for’money • had and received.

This; was an. action for $300, money had and received by the defendant for the use of the plaintiff.

The cause was tried upon the general issue at April term, 1835, and a verdict taken for the plaintiff, subject to the opinion of the court upon the following case.

On the 6th March, 1834, the defendant, being the owner of certain shares in the Croydon Turnpike Corporation, made and, delivered to, the plaintiff a written memorandum, as follows:

“ March 6, 1834. It is hereby understood between me 1 and J. Harris, of Plainfield, that if the said Harris shall by ‘ the 24th of March instant give me good security and inte-: rest for my property in the Croydon Turnpike road, at the £ rate of $5 per share,-which will be between ninety and a £ hundred shares, then. I quitclaim all my right and title to £ him. J. Stevens.”

On the same day the annual meeting of the said corporation was holden, and it was voted by the corporation “ that: the director shall make a dividend of all money arising from ‘toll, after deducting the necessary expenses, and costs of ! repairs, among the proprietors in proportion to their respec- £ tive shares, and shall also give orders on the treasurer for £ the; payment of the same whenever he may think it expe- £ client; and shall also make assessment on all shares, when ‘ the interest of the corporation in his opinion shall require ‘ it.” At the same time the defendant was elected sole director for the year.

After delivering to the plaintiff the, memorandum above mentioned, and after the adjournment of the said meeting of the corporation, there being certain monies in the treasury, the defendant directed the treasurer to pay out a dividend of ⅛$2 on each share, and received of the treasurer, that sum on each of the shares he then held.. -

On the 18th March, 1834, the. plaintiff, not knowing that the defendant had received the said dividend upon the shares, gave security for the price of the shares at the rate of $⅜5 for each share; and the defendant at the same time by deed conveyed all his right, title and interest in the shares to the plaintiff.

, This action was brought to recover of the defendant the amount of the dividend received by him upon the shares as above stated.

Hander son and Wilson, far the defendant,

contended that the memorandum made on the 6th March by the defendant was a mere proposal and no evidence of a contract. Harris was not bound to take the shares, and of course Stevens was not bound to convey them, — there being no consideration to sustain an agreement to convey. No binding contract was made until the 18th March, and the contract then made has been fully performed on the part of the defendant.

Hubbard & Gilchrist, for the plaintiff,