Sec 730

A party who has been wrongfully dispossessed of his money or goods by another may either sue in tort, claiming damages for the injury sustained by him, or, electing to repudiate the sale, he may sue the wrong-doer on an implied contract, alleging a receiving of money to the plaintiffs use. Thus money obtained from A. by B. by false pretences may be recovered back as money received by B. to A.'s use;l A. offering to return to B. whatever he had received from B. in exchange.2 Money, also, received by means of forgery can in this way be recovered back, although there was no contract of any kind between the parties;3 and so of an overpayment induced by a vendor's deceit;4 and so of money obtained by imposition,5 or by any other tort.6 An insurance company, in accordance with the rule above stated, may sue in this form of action to recover back the amount paid on a loss, when the policy was avoided by fraudulent representations as to the extent of the loss; nor need the company return the receipt for the amount so paid before bringing suit.7 In this form of suit all special damages are waived, and the plaintiff's claim reduced exclusively and finally to money had and received.1 - A party who has obtained that which it is his duty to pay over to another, cannot set up that the reception was by his own wrong. In other words he cannot say, "I got it by a tort, and in tort alone can I be sued." Thus when a broker employed to sell a ship improperly received commissions from the purchaser, it was held that the vendor, the broker's principal, might recover of the broker the commissions the broker received, there being no custom by which commissions of this kind were sustained.2 - All profits which an agent makes out of the trust business, no matter how improperly, belong to his principal, nor can he set up against his principal the impropriety of the transaction.3 - And where an apprentice is inveigled away from his master, and his services obtained by a third party, the master can recover the value of these services from the third party, nor can the latter set up the tortious character of the transaction, and claim that he is to be sued in tort alone. The tort can be waived by the master and the implied contract sued on.4 Nor is it a defence to such a suit that the defendant did not know that the party employed was an apprentice.5

Money wrongfully obtained may be sued for as money received to plaintiff's use.

1 Gatty V. Field, 9 Q. B. 431; Haste-lon V. Jackson, 8 B. & C. 221; Eltham V. Kingsman, 1 B. & Ald. 683; see Phillips V. Ives, 1 Rawle, 36; supra, sec 452.

2 Supra, sec 454; Cotton V. Thurland, 5 T. R. 405; Martin V. Hewson, 10 Exch. 737; Manning V. Purcell, 7 De G. M. & G. 55; see White V. Bank, 22 Pick. 189; Ball V. Gilbert, 12 Met. 397; Vischer V. Yeates, 11 John. 23; Rust V. Gott, 9 Cow. 169; Like V. Thompson, 9 Barb. 315; Livingstone V. Wootan, 1 N. & McC. 178. As to distinctive statutes on betting, see supra, sec 452.

3 Howson V. Hancock, 8 T. R. 575; Perkins V. Eaton, 3 N. H. 152; Worcester V. Eaton, 11 Mass. 375; McCullum V. Gourlay, 8 Johns. 147. As to wagers, see more fully supra, sec 352, 449 et seq.

4 McKee V. Manice, 11 Cush. 357.

5 Ruckman V. Pitcher, 1 Comst. 392' S. C, 20 N. Y. 9: Like V. Thompson, 9 Barb. 315.

6 Woodworth V. Bennett, 43 N. Y. 273; see for cases in other states, supra, sec 452.

7 Supra, sec 452.

8 Aycinena V. Peries, 6 W. & S. 243; S. C, 2 Barr, 286.

1 Supra, sec 282, 520; Leake, 2d ed. 90; Benj. on Sales, 3d Am. ed. sec 452; Oakes V. Turquand, L. R. 2 H. L. 325; Street V. Blay, 2 B. & Ad. 456; Gom-pertz V. Denton, 1 C. & M. 207; Holt V. Ely, 1 E. & B. 795; Edmeads V. Newman, 1 B. & C. 418; Martin V. Morgan, 1 B. & B. 289; Farris V. Ware, 60 Me. 482; Manahan V. Noyes, 52 N. H. 232; Gates V. Bliss, 43 Vt. 299; Ripley V. Gelston, 9 John. 201; Tug-man V. Steamship Co., 76 N. Y. 207; Willet V. Willet, 3 Watts, 277; Matthews V. Pearson, 13 S. & R. 258; Pierce V. Wilson, 34 Ala. 596; O'Con-ley V. Natchez, 1 Sm. & M. 31; see Higgins V. Mendenhall, 51 Iowa, 135.

2 Clarke V. Dickson, E. B. & E. 148; Norton V. Young, 3 Greenl. 30; Cush-ing V. Wyman, 38 Me. 589; Getchell V. Chase, 37 N. H. 110; Downer V. Smith, 32 Vt. 1; Perkins V. Bailey, 99 Mass. 61; Hoopes V. Strasburger, 37 Md. 390; Shaw V. Barnhart, 17 Ind. 183; Haase V. Mitchell, 58 Ind. 213; Warren V. Tyler, 81 Ill. 15; see more fully supra, sec 282, 520 et seq.

3 Marsh V. Keating, 1 Bing. N. C. 198; Ripley V. Gelston, 9 Johns. 201; Beardslee V. Richardson, 11 Wend. 25.

4 Bernard V. Colwell, 39 Mich. 215.

5 O'Conley V. Natchez, 1 Sm. & M. 31.

6 Pratt V. Vizard, 5 B. & Ad. 808; Richardson V. Kimball, 28 Me. 463; Miller V. Miller, 7 Pick. 133; Gilmore V. Wilbur, 12 Pick. 120; Stockett V. Watkins, 2 Gill & J. 326; see Lane V. Smith, 68 Me. 178. In Smart V. White, 73 Me. 332, it was held that money received from a United States pensioner in excess of the statutory allowance for services in obtaining a pension may be recovered of the taker by the pensioner, although obtained from him without any wrongful intention, irrespective of the question whether the pensioner when paying or allowing the sum knew of the statutory protection or not. The defendant is not screened from liability because he was an agent merely, and had paid the money to his principal before suit brought or demand made upon him. He is a principal in perpetrating the wrong. See further supra, sec 353, as to effect of complicity in such cases. That money obtained by duress can be recovered back, see supra, sec 144.

7 Johnson V. Ins. Co., 39 Mich. 33.