The opinion
Per Curiam.
The plaintiffs were entitled (under the count for money had and received) to recover the amount of the receipt for 37 dollars, received by the defendant on account of forwarding salt, with interest. The evidence was sufficient to warrant the jury in presuming, that he received that money for forwarding salt from Olean to Pittsburgh and that he had not performed that service. The consideration had, therefore, .failed. |
The third receipt was c< for 15 dollars, to be repaid to the plaintiffs, or the amount thereof, in flour, at Olean, in twelve days.’5
There is no special count on this agreement; nor is there any proof of non-performance. The plaintiff is not entitled to recover the 15-dolIars in the action for money had and received; *365 for it does not appear but that the flour was delivered at Olean ; and the defendant was not bound to show that in this action.
The defendant had a right, at his option,, to repay the 15 dollars, or to deliver flour equivalent, at Olean, in twelve days; and, certainly, the plaintiff cannot recover the money back, upon merely proving the execution of the receipt* The verdict, instead of 57 dollars and 44 cents, ought to have been for .37 dollars, with interest, from the 1st of February, 1814.
New trial granted, with costs to abide the event of the suit.