Sec 728

Where A. receives money from B. to be paid to C. (as where B. deposits money with A. to C.'s credit), A. is not, as a rule, liable to C. in an action for money had and received, unless there is an acknowledgment on A.'s part to C. that he holds the money to C.'s order, or unless agency be proved.5 A banker, for instance, who receives money to meet a bill, is not, without a prior notification or acknowledgment to the holder, or an undertaking by him to the holder, liable to the holder for the amount, since, until such notification, the money could be recalled by the depositor.6 Nor has the holder, without some such relation between them, any claim in equity.7 And, as a general rule, an order to a banker or other agent to hold money due the principal to the order of a third person does not enable the remittee to sue the agent in an action for money had and received until there is an acknowledgment by the agent of the claim of the remittee.8 Thus, where P. re-

Executor not liable to distributees unless on admitted claim.

Money received to use of third party cannot be sued for by such party without acknowledgment.

1 Jones V. Tanner, 7 B. & C. 542; see Gregory V. Harman, 3 C. & P. 205.

2 Topham V. Morecroft, 8 E. & B. 972; Howard V. Brownhill, 23 L. J. Q. B. 23.

3 Wilson V. Wilson, 3 Binn. 557.

4 Ashby V. Ashby, 7 B. & C. 444; Powell V. Graham, 7 Taunt. 586; see Dowse V. Coxe, 3 Bing. 20.

5 See supra, sec 506-7; infra, sec 794; Leake, 2d ed. 115; Dicey on Parties, 93; Williams V. Everett, 14 East, 582;.

Barlow V. Browne, 16 M. & W. 126; Mandeville V. Welch, 5 Wheat. 277; Fugure V. Mutual Soc, 46 Vt. 362; Gibson V. Cooke, 20 Pick. 18; Exchange. Bk. V. Rice, 107 Mass. 37; Fithian V. Monks, 43 Mo. 503. As to novation, see infra, sec 852 et seq.

6 Leake, 2d ed. 115, citing Moore V. Bushell, 27 L. J. Ex. 3. See supra, sec 506-7; infra, sec 794.

7 Hill V. Royds, L. R. 8 Eq. 290.

8 Malcolm V. Scott, 5 Exch. 601; Brind V. Hampshire, 1 M. & W. 365; mitted to B. a bank note, endorsed "pay to the order of B. under provision for my note in favor of C, payable at the house of B., on 1st January, 1830;" and B. received the proceeds of the note, but refused to pay them over to C.; it was held that C. could not maintain an action for money had and received against B., because B. had never agreed to hold the money for C.'s benefit.1 To entitle the remittee to recover, the depositor should, it has been held, have lost control over the deposit.2 But the undertaking may be made by the depositary to the depositor as agent for the party in whose favor the deposit was made. In this case there is liability from the depositary to the party beneficially interested.3 And when the party accepting the deposit has entered into an engagement to hold for the remittee, then the remittee may maintain the suit.4 - That when A. is indebted to B. and B. is indebted to C., A.'s debt may by an agreement between A., B., and C, be placed to the credit of C, was asserted by Buller, J., in an early case;5 and has been since then recognized as settled law.6 Such an arrangement is virtually a novation; a new contract being formed on a sufficient consideration, and the old contract being extinguished.7 - As has been already seen,8 it is held in England, and in several states in this country, that.

Carey V. Adkins, 4 Camp. 93; Tiernan V. Jackson, 5 Pet. 580; Carnegie V. Morrison, 2 Met. 396. See, however, discussion infra, sec 784 et seq.

1 Wedlake V. Hurley, 1 C. & J. 83, aff. Williams V. Everett, 14 East, 582; Gibson V. Minet, R. & M. 68.

2 Seaman V. Whitney, 24 Wend. 260.

3 Wh. on Agency, sec 4, 5, 147, 398; supra, sec 723; infra, sec 794. See Lilly V. Hays, 5 A. & E. 548.

In Surtees V. Hubbard, 4 Esp. 203, Lord Ellenborough says: "Choses in action are not generally assignable. Where a party entitled to money assigns over his interest to another, the mere act of assignment does not entitle the assignee to maintain an action for it. The debtor may refuse his assent; he may have an account against the assignor, and wish to have his set-off; but if there is anything like an assent on the part of the holder of the money, in that case I think that this, which is an equitable action" (money had and received), "is maintainable."

See Jones V. Carter, 8 Q. B. 134. That there must be an acknowledgment between the parties to constitute a contractual relation, see Noble V. Discount Co., 5 H. & N. 225; Cuxon V. Chadley, 3 B. & C. 591.

4 Griffin V. Weatherby, L. R. 3 Q. B. 753; Walker V. Rostron, 9 M. & W. 411; Cobb V. Becke, 6 Q. B. 930; Wy-man V. Smith, 2 Sandf. 331.

5 Tatlock V. Harris, 3 T. R. 180.

6 See infra, sec 852 et seq.

7 Ibid.

8 Supra, sec 506; and see infra, sec 784.

there must be a contractual relation, express or implied, between the plaintiff and the defendant, to sustain the suit. Thus, it was held in Massachusetts in 1880, that F., a party who receives money as his own from an executor who pays it under a mistake to F. instead of to L., cannot be made liable, in an action for money had and received, to L., the person entitled under the will to receive the money.1 On the other hand, the opinion which, however unsustained in principle, is now accepted in most jurisdictions in this country, is that where A. gives money to B., to which C. is entitled, and for C.'s use, suit may be brought for this money by C.2 Hence, it was held in Michigan in 1880, that where an arrangement was made whereby E. was to deduct from the wages of his workmen the amount due for goods sold them by S.; but E., after making the deduction, refused to pay over the amount to S., S. might maintain an action for money had and received on the agreement against E.3