A failure to make the distinction pointed out in the last section, it is submitted, brought about an unjust result in the New Hampshire case of Concord Coal Co. v. Ferrin.1 One Bean, being indebted to the defendants and having been requested to make payment, told the defendants that Day (one of the plaintiff firm) was backing him and that he would get the plaintiffs to furnish a ton of coal for application as payment upon his indebtedness; and the defendants agreed to accept a ton of coal in payment. Bean thereupon informed the plaintiffs that the defendants wanted a ton of coal, without saying anything about the arrangement he had made with them. The coal was delivered to the defendants and used by them in their business. In an action to recover the value of the coal it was held that the defendant was under no obligation to make restitution. Said Parsons, J. :
"It is contended that the plaintiffs can recover because otherwise the defendants would be unjustly enriched at the plaintiffs' expense. But that fact is not found. Both parties trusted and were deceived by Bean. If the plaintiffs cannot recover of the defendants for the coal, they have a claim against Bean for its value; while if the defendants were obliged to pay for the coal, they would also have a claim against Bean for the same amount. It may be assumed that Bean is worthless. But there is no equitable reason why the plaintiffs rather than the defendants should be released from the consequences of their trust in Bean. In,view of the inference of freedom from fault which the general verdict gives for the defendants, the defendants' equity is at least equal with that of the plaintiffs."
1 1901, 71 N.H. 33, 36; 51 Atl. 283; 93 Am. St -Rep. 496. 95
It is true that in the sense of freedom from responsibility for the misunderstanding, the equities of the parties were equal. And if it had been an article of luxury that the plaintiffs delivered to the defendants and that the defendants consumed, it might have been a hardship to compel the defendants to pay the plaintiffs its value. But it was coal which was "used by them in their business," - something which the defendants undoubtedly would have purchased in any event. True, they might have obtained a better grade of coal, or might have purchased at a lower price, but all the plaintiffs asked was the value of the coal which they in good faith delivered and which the defendants consumed. To that extent, it is submitted, they were entitled to restitution.
An English case, in some respects similar to Concord Coal Co. v. Ferrin, but in which it is not so clear that an unjust result was reached, is Boulton v. Jones.1 It there appeared that the defendant sent a written order for hose pipe to one Brocklehurst, a hose pipe manufacturer, who had that day, unknown to the defendant, sold his stock in trade and assigned his business to the plaintiff. The plaintiff supplied the goods without any intimation of the change that had taken place in the business, and when payment was requested the goods had been consumed. The defendant, who had a set-off against Brocklehurst, refused to pay the plaintiff, and was sustained by the court. Since the offer was not accepted by the person to whom it was made, no contract obligation resulted from the transaction. Did an obligation in quasi contract arise? Assuming the set-off to have been at least equal to the value of the goods ordered, it is clear that the defendant did not suppose that he would have to pay out money for the goods. And though it is probable that he would have purchased the goods, either from the plaintiff or from some one else, in any event, the want of evidence as to the use to which the goods were put makes it impossible to say with reasonable certainty that he would have done so. Furthermore, it is not altogether clear that the plaintiff, when he supplied the goods, was under any misapprehension as to his legal rights. It was evident that the defendant's offer was made to Brocklehurst. Unless, therefore, the plaintiff was ignorant of the fundamental principles governing the formation of contract, he must have relied, not upon the supposed contract right to supply the goods, but upon the defendant's indifference as to the source of his supply. If so, he assumed the risk of defendant's refusal to pay, and was not entitled to relief.
1 1857, 2 Hurl. & N. 564; 27 L. J. Exch. 117.
If the set-off which the defendant had against Brocklehurst amounted to less than the value of the goods furnished by the plaintiff, the balance was clearly recoverable. For, to the extent of such balance, the defendant must have expected to pay out money for the goods, and it can hardly be said that the plaintiff acted officiously in the premises.